Offshore Safety Review Discussion Paper

Offshore Safety Review:
Discussion Paper
A review of the offshore safety regulatory regime
June 2019
www.industry.gov.au
Offshore Safety Review industry.gov.au 1

Contents
Part 1: Introduction..............................................................................................................6
The safety review................................................................................................................ 6
The review process.............................................................................................................7
Safety Stakeholder Group...................................................................................................7
How to contribute your views..............................................................................................8
Part 2: Background to the safety review............................................................................9
Overview of the offshore oil and gas safety regime.............................................................9
Role of the Government and the department..................................................................9
History of Australia’s offshore oil and gas safety regime.................................................9
Work health and safety harmonisation..............................................................................10
WHS harmonisation and offshore safety.......................................................................11
Australia’s offshore safety regime principles.....................................................................12
Leading practice regulatory framework..........................................................................13
Independent and accountable regulator........................................................................13
Workforce involvement..................................................................................................14
Australia’s offshore safety performance............................................................................14
Safety statistics............................................................................................................. 14
International and domestic comparison.........................................................................15
Safety culture.................................................................................................................... 19
Part 3: Objects, safety cases and diving safety management systems.........................20
Introduction....................................................................................................................... 20
Objects in relation to occupational health and safety........................................................20
Issues for discussion.....................................................................................................21
Safety case....................................................................................................................... 22
Development of safety cases........................................................................................23
Submission and acceptance of safety cases.................................................................25
Revision of safety cases................................................................................................26

Withdrawal of safety cases............................................................................................28
Diving safety management system (DSMS)......................................................................28
Diving project plan (DPP)..............................................................................................29
Diving operations.......................................................................................................... 30
Diving start-up notice.....................................................................................................31
Part 4: Duties, training, competency and mental health.................................................33
Introduction....................................................................................................................... 33
Duties of care.................................................................................................................... 33
Duties in relation to occupational health and safety.......................................................33
Reasonably practicable and ALARP.............................................................................34
Training and competency of offshore workers..................................................................36
Permit to work system...................................................................................................36
Training and competency..............................................................................................37
Mental health of offshore workers.....................................................................................39
Part 5: Workplace arrangements.......................................................................................42
Introduction....................................................................................................................... 42
Health and safety representatives.....................................................................................42
Selection and election of health and safety representatives..........................................42
Powers of and protections for health and safety representatives..................................44
Provisional improvement notices and direction to stop unsafe work..............................45
Duties of the operator and other employers in relation to health and safety
representatives.............................................................................................................. 46
Training for health and safety representatives..................................................................47
Health and safety committees...........................................................................................49
Health and safety representatives’ engagement with NOPSEMA.....................................50
Health and safety representative lists............................................................................51

Consultation and participation...........................................................................................53
Consultation with workers.............................................................................................53
Right of entry for health and safety matters...................................................................55
Information sharing and transparency...........................................................................57
Participation in governance arrangements and forums.................................................59
Protection against discrimination or coercion................................................................61
Issue resolution............................................................................................................. 61
Part 6: Compliance and enforcement...............................................................................63
Introduction....................................................................................................................... 63
NOPSEMA’s OHS functions.............................................................................................63
Compliance and enforcement framework..........................................................................64
Assessment................................................................................................................... 65
Inspection...................................................................................................................... 65
Investigation.................................................................................................................. 68
Enforcement.................................................................................................................. 69
Notification and reporting..............................................................................................73
Part 7: Jurisdictional coverage.........................................................................................76
Introduction....................................................................................................................... 76
Overview of offshore petroleum and greenhouse gas jurisdiction.....................................76
Offshore Petroleum and Greenhouse Gas Storage Act 2006........................................76
Overview of maritime industry jurisdiction.........................................................................79
Occupational Health and Safety (Maritime Industry) Act 1993......................................79
Seacare Authority and Inspectorate..............................................................................81
The Navigation Act 2012...............................................................................................82
Interaction between the OPGGS Act, Navigation Act and OHS(MI) Act........................83
Summary of questions.......................................................................................................88
Part 3: Objects, safety cases and diving safety management systems.........................88
Part 4: Duties, training, competency and mental health................................................89
Part 5: Workplace arrangements...................................................................................89

Part 6: Compliance and enforcement............................................................................90
Part 7: Jurisdictional coverage......................................................................................91
Appendix A: Terms of Reference......................................................................................92

Part 1: Introduction
The Department of Industry, Innovation and Science (the department) is undertaking a
review of the offshore petroleum and greenhouse gas storage regulatory regime for safety.
The review will consider:
 the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009
(Safety Regulations)
 Schedule 3 (Occupational health and safety) to the Offshore Petroleum and
Greenhouse Gas Storage Act 2006 (OPGGS Act)
 any other matters under the OPGGS Act which are incidental to the above items, but
necessary for a comprehensive review of the Safety Regulations and Schedule 3 of
the OPGGS Act.
The Safety Regulations are due to sunset in 2020 and must be reviewed before they can be
remade to ensure they are fit-for-purpose, up-to-date and leading practice. This review will
inform the remaking of the Safety Regulations.
For ease of reading, throughout this paper the offshore petroleum and greenhouse gas
storage industries will be referred to collectively as the offshore oil and gas industry. When
referred to individually, be aware that this does not represent both industries (i.e. ‘offshore
petroleum’ does not include ‘greenhouse gas storage’, and vice versa).
The safety review

The objective of the review is to determine whether the current legislative provisions
effectively secure and protect offshore workers from risks to health and safety arising from
these activities. The full Terms of Reference for the review are at Appendix A and also on
the department’s website. The review will consider:
1. the extent to which the Occupational Health and Safety (OHS) regime is securing the
health and safety of persons engaged in offshore petroleum operations and driving
continuous improvement in safety performance
2. the effectiveness of the safety case provisions as a mechanism for achieving health
and safety performance at offshore facilities
3. the effectiveness of the diving safety management systems (DSMS) and diving
project plans (DPPs) for achieving safety performance in diving operations
4. the appropriateness of definitions of facilities, vessels and structures, and associated
offshore places for the purpose of ensuring OHS for persons working in the offshore
resources operations.
5. the effectiveness of the framework of duties in protecting the health and safety of
workers in the offshore oil and gas industry
6. the appropriateness and effectiveness of provisions for workplace arrangements

7. the transparency of current arrangements, including provision of information to the
workforce
8. the effectiveness of routine and non-routine notification and reporting arrangements
9. the effectiveness of compliance and enforcement mechanisms for improving OHS
performance
10. alignment of terminology throughout the OHS regime and related legislation.
11. any other changes that may be necessary to ensure the OHS regime reflects current
Australian Government policy and guidance on best practice regulation
12. any other matter raised during the process considered relevant.
The review process

The review will be informed by thorough consultation with relevant stakeholders (the offshore
workforce, industry, government agencies and unions), analysis of policy, and international
and domestic leading-practice comparisons.
This paper has been developed to inform a public consultation process on the key issues
and concerns surrounding the offshore regulatory regime for safety. Submissions received
during the public consultation period will be used to inform the development of a policy
framework, which will propose policy recommendations, supported by relevant evidence, to
improve the offshore regulatory regime for safety. Stakeholders will be consulted on policy
recommendations through targeted meetings, the Stakeholder Safety Group (a consultative
group established for this review, outlined below) and a second public consultation process
on policy options.
The final policy framework will be provided to the Minister for Resources and Northern
Australia for approval, followed by legislative and regulatory amendments, where
appropriate, to implement the reforms. Any proposed amendments will be subject to
parliamentary and Executive Council processes for legislative and regulatory change.
The preparation of this discussion paper has been informed by stakeholder engagement
through two Safety Workshops (Melbourne, August 2018 and Perth, October 2018) and
close consultation with the Safety Stakeholder Group.
Safety Stakeholder Group

The Safety Stakeholder Group is an important consultation avenue that allows key
stakeholders with significant interest in offshore oil and gas safety to be involved in the
offshore safety review process.
The Safety Stakeholder Group was established to ensure a broad range of perspectives and
views are taken into account when considering issues and developing policy options. It
serves as a consultation group, not a decision-making body, to allow ideas and issues to be
tested and discussed prior to a final policy framework being developed by the department.

The Safety Stakeholder Group has a diverse range of participants with membership
comprised of representatives from industry, the Commonwealth and state governments, the
offshore workforce and unions.
Members include:
 the department (Chair)

 the Australian Petroleum Production & Exploration Association
 an offshore operator representative: Santos
 the Australian Council of Trade Unions (ACTU)
 an offshore Health and Safety Representative (HSR)
 WorkSafe Victoria
 the New South Wales (NSW) Resources Regulator
 the Western Australian (WA) Department of Mines, Industry Regulation and Safety
 the International Association of Drilling Contractors
 the Australian Maritime Safety Authority (AMSA)
 the Attorney-General’s Department
 the National Offshore Petroleum Safety and Environmental Management Authority
(NOPSEMA).
How to contribute your views

We encourage everyone involved in or affected by the offshore regulatory regime for safety
to participate in the review. Further information on the stakeholder engagement and
consultation approach can be found in the consultation plan published on the department’s
website.
As part of this public consultation period, we invite you to share your views of, and
experiences with, the offshore regulatory regime for safety through written submission. In
particular, we welcome comments regarding any or all of the issues raised in this discussion
paper, and responses to the questions posed throughout.
Parts 1 and 2 of this discussion paper provide background and context for the Safety
Review. Parts 3 to 7 outline issues for consideration by stakeholders which are within the
scope of the Terms of Reference for this review. Questions are posed throughout Parts 3 to
7 which can be addressed through written submission.
If you would like to provide comments in a different format or have any questions, please
contact the department at [email protected].
All submissions and comments must be provided by 5 August 2019.
Submissions will be published and may be referred to in subsequent reports. You can
request that your name be withheld, or that all or part of your submission be treated as
confidential, when you lodge your submission. Please be aware that even where you request
information be treated as confidential, there may be circumstances in which the department

is authorised or required by law to release that information, for example, in accordance with
the Freedom of Information Act 1982 or for the purpose of parliamentary processes.

Part 2: Background to the safety review
Overview of the offshore oil and gas safety regime
Role of the Government and the department
The Australian Government’s role in relation to the oil and gas sector is to:
 establish the macroeconomic environment (broad economic policy)

 provide a regulatory framework for exploration, development, safety, environmental
assessment and revenue collection
 reduce commercial risk in petroleum exploration by collecting and disseminating
geoscientific information
 investigate ways to remove impediments to industry competitiveness.
The department is responsible for providing upstream offshore oil and gas-related policy
advice to the Australian Government. This includes supporting the Minister with
responsibility for resources in their role as the Commonwealth member of the Joint
Authorities for the offshore areas of each state and the Northern Territory, the Joint Authority
for the offshore areas of the External Territories and of the Eastern Greater Sunrise, and as
the Commonwealth Resources Minister.
The department manages the OPGGS regime to ensure the sustainable and safe
development of Australia’s offshore oil and gas resources, while encouraging further
investment. It also provides regulatory and policy oversight for the OHS of people involved in
offshore petroleum and greenhouse gas activities, environmental management and offshore
well integrity issues.
History of Australia’s offshore oil and gas safety regime

Until the early 1990s, the offshore oil and gas industry in Australia was regulated by a
combination of State and Commonwealth legislation. This legislation prescribed specific laws
that had to be complied with. In practice, it was the regulator that identified what was safe or
not safe for the industry. Rapid changes in technology and operations meant that legislation
and regulation were constantly trying to catch up.
A key international turning point in how governments and the offshore oil and gas industry
manage the health and safety of workers involved in offshore oil and gas activities was the
Piper Alpha disaster in the United Kingdom (UK) in 1988 and the subsequent introduction of
the safety case regime.
The massive leakage of gas condensate and explosion at Piper Alpha, a large North Sea oil
platform, resulted in the deaths of 167 people. A public inquiry into the circumstances of the
accident was led by the Honourable Lord Cullen. Its landmark report examined the causes of
the incident, the lessons learned and issued 106 recommendations for change, all of which

were accepted.1 The result was the adoption of a goal-setting safety regime that prompted
change across offshore oil and gas exploration and development sectors worldwide, and
changed the face of offshore safety.
In 1991, an Australian Consultative Committee on Safety in the Offshore Petroleum Industry

recommended that key outcomes of the UK’s public inquiry into the Piper Alpha disaster be
implemented in Australia.
The Australian Government made a policy decision to adopt a safety case regime and new
objective-based regulations to replace the then-prescriptive safety regulations made under
the Petroleum (Submerged Lands) Act 1967 (PSLA). In 1992, the PSLA was amended to
require the preparation and submission of a safety case for every offshore petroleum facility,
and in 1996 the safety case regime was enacted in Australia through the commencement of
the Petroleum (Submerged Lands) (Management of Safety on Offshore Facilities)
Regulations.
In 1999, the Australian Government commissioned a review into the adequacy of offshore
safety regulation in Australia. At the time, the state and Northern Territory governments
carried out day-to-day offshore safety regulation in Commonwealth waters. The review
recommended the establishment of a national petroleum safety regulatory authority.
In 2001, the Council of Australian Governments (COAG) accepted the review’s proposals
and recommended that there be a single Commonwealth offshore safety regulator, and in
2005 the National Offshore Petroleum Safety Authority (NOPSA) was established.
In 2006, the PSLA was replaced by the Offshore Petroleum Act 2006, and in 2008 became
the OPGGS Act, which continued the established approach to safety for offshore petroleum
and greenhouse gas activities and extended it to the storage of greenhouse gas offshore.
Work health and safety harmonisation

In July 2008, the Commonwealth, state and territory governments committed to harmonising
work health and safety (WHS) legislation and regulation by 1 January 2012 through the
Inter-Governmental Agreement for Regulatory and Operational Reform in Occupational
Health and Safety (the IGA). The IGA committed all states, territories and the
Commonwealth to adopt uniform WHS laws based on a model WHS Act, supported by
model Regulations and Codes of Practice. It was agreed that a nationally consistent
approach to compliance and enforcement would be finalised by December 2011.
The National Review into Model Occupational Health and Safety Laws (the OHS Review)
was conducted in 2008/2009 to make recommendations on the optimal structure and content
of a model WHS Act that was capable of being adopted in all jurisdictions.2
1
Hon Lord Cullen, 1990, The Public Inquiry into the Piper Alpha Disaster, Department of Energy,
http://www.hse.gov.uk/offshore/piper-alpha-disaster-public-inquiry.htm
2
Department of Jobs and Small Business, Occupational Health and Safety Harmonisation,
https://www.jobs.gov.au/occupational-health-and-safety-harmonisation
The model laws have been adopted, allowing for minor variations where necessary, by the
Commonwealth, New South Wales, Queensland, South Australia, Tasmania, the Australian
Capital Territory and the Northern Territory. Western Australia and Victoria have not
implemented the model WHS framework but their WHS laws broadly align with the model
laws.
In 2018, Ministers responsible for WHS asked Safe Work Australia to review the content and
operation of the model WHS laws in order to meet the Ministers’ commitment to review the
model WHS laws regularly and ensure they continue operating effectively. Safe Work
Australia appointed an independent reviewer, Ms Marie Boland, to conduct the review and
the review’s final report was publicly released in February 2019.3 In examining issues for
discussion throughout this paper, we have, where relevant, provided a comparison to the
Commonwealth WHS laws that are currently in force. We have also indicated any relevant
recommendations from the review, noting that these are being considered by WHS Ministers
across Commonwealth, state and territory jurisdictions.4
WHS harmonisation and offshore safety

When the Commonwealth, state and territory governments committed to the harmonisation
of the WHS laws in 2008, the responsible Ministers agreed that industry-specific laws, in
particular for high risk industries, should continue where objectively justified.
The second report of the OHS Review in January 2009,5 by the independent advisory panel,
considered whether the principal health and safety Acts in each jurisdiction should continue
to be supplemented or replaced for the purposes of regulating health and safety in relation to
specific industries or hazards that would otherwise come within its scope.
The OHS Review found that the majority of industry-specific health and safety Acts
contained similar Robens-style principles6 to that of the principal WHS Acts, in that they
place duties on certain parties to eliminate or minimise hazards and risks. Stakeholders
consulted during the OHS Review expressed a preference for consistency across health and
safety laws, but noted that industry-specific regulation should continue alongside the general
duties expressed in the principal WHS Acts where appropriate.7
3
Safe Work Australia, 2018, Review of the model WHS laws,
https://www.safeworkaustralia.gov.au/law-and-regulation/model-whs-laws/review-model-whs-laws
4
Ibid
5
National Review into Model Occupational Health and Safety Laws, 2009, Second Report,
https://docs.jobs.gov.au/system/files/doc/pdf/national_review_into_model_ohs_laws_secondreport.pdf
6
Australia’s WHS laws have historically been based on the UK’s health and safety laws which are
often referred to as Robens-style legislation. Principles of Robens-style legislation include a principal
Act with broad ‘general duties’ imposed on certain parties to achieve a health and safety standard,
while allowing flexibility in the manner in which the standard is achieved.
7
National Review into Model Occupational Health and Safety Laws, 2009, Second Report,
https://docs.jobs.gov.au/system/files/doc/pdf/national_review_into_model_ohs_laws_secondreport.pdf
In May 2009, the Ministers responsible for WHS agreed with the report’s recommendation8
that industry-specific laws should continue where ‘objectively justified’, and where adopted,
should normally be provided by regulations under the principal WHS laws, to keep separate
legislation to a minimum.
The OPGGS Act and Safety Regulations have been maintained as specific health and safety
legislation for the offshore petroleum industry, providing a more tailored form of regulation to
address its high hazard work environment, characterised by accident events that are low
frequency, yet potentially high consequence.
COAG has continued to endorse an industry-specific regulatory framework for the offshore
petroleum sector, demonstrated by NOPSA’s establishment in 2005, and the formation of
NOPSEMA in 2012.
Other high risk sectors also continue to have industry-specific health and safety legislation.
These include the aviation, electrical, agricultural and veterinary chemicals, and radiation
and nuclear industries.
In line with the principles of best practice regulation, the department is committed to ensuring
that the offshore regulatory regime for safety remains relevant and effective over time. The
need for continuous improvement means that any regime, including the offshore regulatory
regime for safety, is subject to regular review and amendment where the change is justified,
effective and proportional to the issue being addressed. This will include an assessment of
whether separate and specific OHS laws for the offshore petroleum industry continue to be
justified.
Australia’s offshore safety regime principles

While there is no internationally agreed definition of what constitutes an effective health and
safety regime for the offshore oil and gas industry, it is generally accepted that core
principles include:
 a leading practice regulatory framework

 an independent, competent regulator
 involvement of all relevant parties in health and safety issues.
Leading practice regulatory framework

Australia’s offshore regulatory regime for safety, underpinned by the OPGGS Act and the
Safety Regulations, provides a framework that addresses and reflects these principles.
Since the 1990s, Australia’s offshore regulatory regime for safety has adopted an objective-
based regulatory approach and safety case model. The objective-based approach means
that high-level requirements are stated, but the legislation does not prescribe how these
requirements must be met. Objective-based legislation sets out that the onus is on the
8
WRMC Response to Recommendations of the National Review into Model OHS Laws, 2009,
Recommendation 76,
https://www.safeworkaustralia.gov.au/system/files/documents/1702/wrmc81outcomesmay09.pdf
creator of the risk to identify, evaluate and manage the risks to ensure offshore oil and gas
activities are safe and risks have been reduced to as low as reasonably practicable. This
approach imposes an ongoing obligation on duty holders to reduce risk and does not equate
to self-regulation by industry.
The safety case model means that hazards, risks and controls must be documented by a
duty holder for assessment by the regulator. The intent is to ensure duty holders carry the
responsibility for identifying and managing safety risks, rather than simply responding to
risks pre-identified in regulations. The safety case model, while not diminishing focus on
personal safety matters, also ensures adequate attention is placed on the prevention of
major accident events.
Independent and accountable regulator

Integral to the objective-based regulatory approach and safety case regime is the necessity
to have an independent, accountable and competent regulator. A regulator must act
independently from the government and from industry to be credible in its decision-making.
Further, it must be accountable for its functions and be subject to periodic independent
reviews.9
NOPSEMA was established to be the single Commonwealth regulator for offshore petroleum
and greenhouse gas, a legally distinct and functionally independent agency which has
accountability processes and regulatory powers embedded in legislation.
As an independent statutory authority, NOPSEMA’s decision making function is focused

exclusively on the technical and scientific merits of risk management plans and is
independent of economic, commercial and political factors and the workings of government.
The Ministers with responsibility for resources and the environment, and their respective
departments, do not have any involvement in NOPSEMA’s regulatory decision-making
processes.
Workforce involvement
An important feature of the offshore regulatory regime for safety is consultation with all
relevant persons concerning the health and safety of the workforce. Involvement of the
workforce, in particular, is essential, given that to carry out offshore oil and gas activities, or
any complex activity for that matter, requires front line workers and their supervisors to
undertake these operations.
Workforce involvement was emphasised by Lord Cullen in his public inquiry into the Piper
Alpha disaster, where he reflected that “it is essential that the whole workforce is committed
to and involved in safe operations”. And further, “… each [first-line supervisor] is personally
responsible for ensuring that all employees, whether the company’s own or contractors, are
9
OECD, 2014, The Governance of Regulators, OECD Best Practice Principles for Regulatory Policy,
OECD Publishing, https://www.oecd-ilibrary.org/governance/the-governance-of-
regulators_9789264209015-en
trained to and do work safely and that they not only know how to perform their jobs safely
but are convinced that they have a responsibility to do so”.10
The Australian offshore regulatory regime for safety makes formal provision for workforce
involvement in the current legislation. This is demonstrated through:
 worker involvement in safety at the workplace (including the development and access
to relevant safety documents and the ability for the workforce to appoint people to
represent their health and safety interests)
 the ability for HSRs to accompany NOPSEMA inspectors during their inspections11
 the protection of the workforce against threats (such as unfair dismissals)
 participation in governance arrangements which guide and inform health and safety
issues (including the establishment of health and safety committees (HSCs) and
consultation by NOPSEMA with the workforce and unions on the development of
safety guidance).
Australia’s offshore safety performance

Safety statistics
The offshore oil and gas industry faces a number of hazards due to remote locations,
unpredictable weather and working with complex equipment. Worldwide, the sector is also
moving toward building larger and more complex projects located in deeper water.12 The
safety performance of Australia’s offshore petroleum industry continues to outperform other
comparable industries, domestically and internationally. The following statistical information,
published in NOPSEMA’s 2018 annual offshore performance report,13 highlights key safety
performance outcomes:
 for the sixth consecutive year, there were no fatalities

 a total injury rate of 3.48 per million hours worked, the lowest injury level to date
since NOPSEMA (formerly NOPSA) began recording data in 2005.
However, industry must remain vigilant and focus its attention on learning from events to
prevent future occurrences.
The report also identified that there were:
 eight workers that received major injuries, up from four in 2017

 386 dangerous occurrences in 2018, which is an increase from 291 in 2017
 a notable increase in near-miss incidents, at 26, up from 16 in 2017.
10
Hon Lord Cullen, 1990, The Public Inquiry into the Piper Alpha Disaster, pp.300-301
11
OGPPS Act 2006, Schedule 3, Part 3, Subparagraph 34 (1)(iv)
12
Bureau of Safety and Environmental Enforcement Director, https://www.bsee.gov/newsroom/latest-
news/statements-and-releases/press-releases/bsee-director-driving-offshore-safety
13
NOPSEMA, 2018, Annual Offshore Performance Report to 31 December 2018,
https://www.nopsema.gov.au/assets/Publications/A674653.pdf
International and domestic comparison
In Australia, the remoteness of facilities, the number of facilities producing liquid natural gas
(LNG) and the associated challenges and risks is different to offshore petroleum industries in
countries such as Norway, the UK, the USA and Canada. In those countries, oil is the
primary resource drilled and produced.14 In relation to comparable15 international
jurisdictions, Australia outperforms with lower injury and fatality rates.
NOPSEMA represents Australia on the International Regulators’ Forum (IRF), a group of ten
countries’ independent regulators of health and safety in the offshore oil and gas industry.
The purpose of the IRF is for regulators to share information and collaborate on joint
programs to drive improvements in health and safety offshore. IRF members also share
performance data for offshore activities using a common set of definitions and criteria.16
Australia’s offshore oil and gas sector compares favourably to other jurisdictions
internationally as well as high-risk industries domestically, as demonstrated in tables 1-3.
However, there is always room for improvement. It is important that offshore injury rates and
accidents remain low, and that the recent trend - with major injury occurrences offshore
rising from zero in 2016 to four in 2017, and the number of accidents rising from four in 2016
to 10 in 201717 - is reversed.
In order to lower these injury and accident rates there needs to be involvement and
commitment by all relevant parties in the regime – regulator, government, workforce, union
and industry – to ensure that Australia remains one of the world’s safest places for offshore
workers.
14
Senate Inquiry into the WHS of workers in the offshore petroleum industry, 2018, NOPSEMA
submission
15
This refers to jurisdictions which have similar offshore regimes to Australia (Canada, the
Netherlands, Norway and the UK).
16
International Regulators’ Forum, https://irfoffshoresafety.com/about-irf/
17
NOPSEMA Charts – Annual performance, https://www.nopsema.gov.au/assets/Data-and-
statistics/Charts-Annual-performance.pdf; NOPSEMA Annual Offshore Performance Report - to
31 December 2017, https://www.nopsema.gov.au/assets/Publications/AA624610.pdf
Table 1: Average fatalities and number of major injuries in Australia relative to IRF members in 2017 18
Fatalities and major injuries per million hours worked Australia All IRF Members
Average fatalities rate 0.00 0.01

Number of major injuries 0.31 0.41
Table 2: Number of Fatalities and major injuries in all IRF members in 2017 19
No. The
Australia Brazil Canada Denmark NZ Norway Mexico UK USA
Netherlands
Fatalities 0 4 0 0 0 NA 1 NA 0 1
Major
4 32 1 0 4 NA 29 NA 19 15
injuries
Table 3: Worker fatalities, comparison between selected industries 20, 21
Industry 2012 2013 2014 2015 2016 2017 Total 2012-17
Agriculture, 56 55 45 56 44 52 308
forestry & fishing
Construction 30 22 32 34 35 30 183
Mining22 8 9 11 11 6 3 48
Offshore oil & gas 2 0 0 0 0 0 2
Table 4: Worker fatality rate per 100,000 workers, comparison between selected industries 23, 24
18
International Regulators’ Forum, https://irfoffshoresafety.com/wp-content/uploads/2019/02/2017.pdf. Note that 2017 fatalities and injuries data for New Zealand and
Mexico is not available. Average rate for all IRF members (right-hand column) is calculated based on the remaining eight member countries.
19
Ibid
20
Safe Work Australia, Work-related Traumatic Injury Fatalities, Australia, https://www.safeworkaustralia.gov.au/system/files/documents/1710/work-related-traumatic-injury-
fatalities-report-2016.pdf; https://www.safeworkaustralia.gov.au/system/files/documents/1812/work-related-traumatic-injury-fatalities-report-2017.pdf
21
NOPSEMA Charts – Annual performance, https://www.nopsema.gov.au/assets/Data-and-statistics/Charts-Annual-performance.pdf ;
https://www.nopsema.gov.au/assets/Data-and-statistics/Tables-Annual-performance.pdf
22
Mining fatalities include fatalities that occur in the coal mining, oil and gas extraction, metal ore mining, gravel and sand quarrying, and services to mining.
23
Safe Work Australia, Work-related Traumatic Injury Fatalities, Australia, https://www.safeworkaustralia.gov.au/system/files/documents/1710/work-related-traumatic-injury-
fatalities-report-2016.pdf
24
NOPSEMA Charts – Annual performance, https://www.nopsema.gov.au/assets/Data-and-statistics/Charts-Annual-performance.pdf
Industry 2012 2013 2014 2015 2016 2017 Average 2012-17
Agriculture, 17.7 18.3 13.9 18.0 14.3 16.5 16.5
forestry & fishing
Construction 3.1 2.2 3.1 3.3 3.4 2.7 3.0
Mining25 3.0 3.4 4.4 4.8 2.7 1.4 3.3

Offshore oil & 0.0 0.0 0.0 0.0 0.0 0 0.0
gas
25
Mining fatalities include fatalities that occur in the coal mining, oil and gas extraction, metal ore mining, gravel and sand quarrying, and services to mining.
https://www.safeworkaustralia.gov.au/statistics-and-research/statistics/fatalities/fatality-statistics-industry
Safety culture
Safety culture is the organisational culture which reflects the level of importance that is
placed on safety beliefs, values, practices and attitudes by the majority of people within a
workplace. Safety culture can be characterised as ‘the way we do things around here’.26 A
positive safety culture can assist in improved safety and organisational performance and a
negative safety culture consequently results in poorer safety performance, i.e. more
accidents and injuries.
An effective workplace safety culture can be developed through leadership, communication

and training using systems, symbols and behaviours.27 Safe Work Australia identifies five
safety leadership principles to help create a workplace culture that promotes safety:
1. commit to safety
2. get involved
3. encourage participation
4. make WHS part of the business
5. review performance.28
Although safety culture is difficult to regulate, the legislative framework, training and
competency, leadership and a commitment by all involved are important to promote and
support the development of a safety-conscious working environment. Instigating changes to
embedded negative organisational safety culture is challenging, but doing so is likely to lead
to better safety outcomes.
26
WorkSafe Queensland, https://www.worksafe.qld.gov.au/__data/assets/pdf_file/0004/82705/
understanding-safety-culture.pdf
27
Comcare, Workplace health and safety culture,
https://www.comcare.gov.au/Forms_and_Publications/publications/services/safety_and_prevention/
safety_and_prevention/workplace_health_and_safety_culture
28
Safe Work Australia, Leadership and culture, https://www.safeworkaustralia.gov.au/leadership-
culture#organisational-culture-a-definition
Part 3: Objects, safety cases and diving
safety management systems
Introduction
Effective safety systems play a critical role in maintaining and improving the safety
performance of an activity, asset or organisation, and play an equally important role in
creating and encouraging a positive safety culture throughout the organisation.29 This part
outlines the objects of the legislation, which describe the principles and purposes of the
safety regime that underpin the requirements of the safety systems, and then outlines the
use of safety systems in the Australian offshore regulatory regime for safety, through the
safety case, diving safety management system (DSMS) and diving project plan (DPP).
Objects in relation to occupational health and safety

An objects clause outlines the underlying purposes of the legislation and may set out its
general aims or principles.30 The OPGGS Act and Safety Regulations each include objects
clauses that relate to health and safety.
Schedule 3 to the OPGGS Act provides that the objects of the Schedule are, in relation to
facilities located in Commonwealth waters:
 to secure the health, safety and welfare of persons at or near those facilities
 to protect persons at or near those facilities from risks to health and safety arising out
of activities being conducted at those facilities
 to ensure that expert advice is available on occupational health and safety matters in
relation to those facilities
 to promote an occupational environment for members of the workforce at such
facilities that is adapted to their needs relating to health and safety
 to foster a consultative relationship between all relevant persons concerning the
health, safety and welfare of members of the workforce at those facilities.
Importantly, the object to foster a consultative relationship between relevant persons is the
overarching principle that guides consultative mechanisms described in Part 5: Workplace
arrangements.31
The objects in the Safety Regulations focus on seeking to ensure that risks to the health and
safety of persons at facilities and those carrying out diving activities are reduced to as low as
reasonably practicable.
29
Lamb and Pegram, 2012, Health and Safety International, “Safety Case and Beyond”, 2012,
https://www.hsimagazine.com/article/safety-case-and-beyond-716
30
Australian Law Reform Commission, https://www.alrc.gov.au/publications/5.%20The%20Privacy
%20Act%3A%20Name%2C%20Structure%20and%20Objects/objects-act
31
OPGGS Act 2006, Schedule 3, Part 1, Paragraph 1(e)
The objects of the Safety Regulations32 are to ensure that:
 facilities are designed, constructed, installed, operated, modified and

decommissioned in Commonwealth waters only in accordance with safety cases that
have been accepted by NOPSEMA
 safety cases for facilities and diving safety management systems make provision for
the following matters:
- the identification of hazards and assessment of risks
- the implementation of measures to eliminate the hazards, or otherwise control
the risks
- a comprehensive and integrated system for management of hazards and
risks
- monitoring, audit, review and continuous improvement
 the risks to the health and safety of persons at facilities are reduced to a level that is
as low as reasonably practicable
 diving to which the OPGGS Act relates is carried out in Commonwealth waters only
in accordance with diving safety management systems that have been accepted by
NOPSEMA
 the risks to the health and safety of persons who carry out diving to which the Act
relates are reduced to a level that is as low as reasonably practicable.
Issues for discussion

The Work Health and Safety Act 2011 (Cth) (WHS Act) sets out a wide range of objects that
provide for a balanced and nationally consistent framework to secure the health and safety
of workers and workplaces. The Work Health and Safety Regulations 2011 (WHS
Regulations) do not contain any objects. There are similarities between the WHS Act and the
OPGGS Act, which both contain objects to ensure workers are protected against harm and
risk; ensure the provision of health and safety advice; and encourage the fostering of
consultative relationships. The WHS Act, however, contains objects that provide for:
 fair and effective workplace representation, consultation, co-operation and issue

resolution
 encouraging unions and employer organisations to take a constructive role in
promoting improvements in health and safety practices
 securing compliance through effective and appropriate compliance and enforcement
measures
 ensuring appropriate scrutiny and review of actions
 a framework for continuous improvement
 a general principle that workers and other persons should be given the highest level
of protection against harm to the health, safety and welfare from hazards and risks
arising from work as is reasonably practicable.33
32
OPGGS Safety Regulations 2009, Chapter 1, Regulation 1.4
33
WHS Act 2011, Part 1, Division 2, Section 3
During the 2018 Senate Inquiry into the Work health and safety of workers in the offshore
petroleum industry, the absence of specific reference to the role of industrial organisations
within the objects of the OPGGS Act was raised by stakeholders. Specifically, it was claimed
that given the importance of representative involvement in the management of work, health
and safety, it would be appropriate that the role of unions and employer organisations be
acknowledged in legislation. While the OPGGS Act includes an object “to foster a
consultative relationship between all relevant persons”, there is no specific reference to
unions and employer organisations, and the term “relevant persons” is not currently defined
in the OPGGS Act in relation to health and safety.
What are your views on the current objects in the OPGGS Act and Safety Regulations
as they relate to OHS? Do you have suggestions for changes to the objects, or how
they are defined?
Do you think the objects in the OPGGS Act should include specific reference to the
role of unions and employer organisations, or is the current requirement to foster a
consultative relationship with all relevant persons sufficient? Why/why not?
Safety case
Under the Safety Regulations, a facility cannot be constructed, installed, maintained,
modified or decommissioned without a safety case that has been accepted by NOPSEMA.
A safety case is a comprehensive, integrated risk management system which identifies the
safety-critical aspects of the facility, both technical and managerial, and defines appropriate
performance standards for the operation of the safety-critical aspects. The requirements of
what must be included in a safety case are set out in regulation 2.5 of the Safety
Regulations. The responsibility for the safety case rests with the operator because the
operator has the most in-depth knowledge of their installation and is best placed to assess
their processes, procedures and systems to identify and evaluate risks and implement the
appropriate controls. For more information on the history of the safety case regime refer to
Part 2: Background to the safety review.
Development of safety cases

The legislative requirements for the contents of a safety case are comprehensive and
detailed. Under the Safety Regulations, a safety case must include:
 a description of the facility

 a detailed description of the formal safety assessment for the facility that:
- identifies all hazards having the potential to cause a major accident event
- is a detailed and systematic assessment of the risk associated with each of
those hazards, including the likelihood and consequences of each potential
major accident event
- identifies the technical and other control measures that are necessary to
reduce that risk to a level that is as low as reasonably practicable

 a detailed description of the safety management system
 all Australian and international standards that have been, or will be, applied
 for a facility that is manned, a description of the facility command structure.34
The safety case must:
 describe the means by which the operator will ensure that each member of the
workforce at the facility has the necessary skills, training and ability
 provide for a permit to work system to establish and maintain a documented system
of coordinating and controlling the safe performance of all work activities of members
of the workforce at the facility
 demonstrate effective consultation with, and participation of, members of the
workforce in the development or revision of the safety case.35
Further, there are requirements that must be documented in the safety case in the event of
an emergency, including:
 a detailed description of an evacuation, escape and rescue analysis

 a detailed description of a fire and explosion risk analysis
 provision for communications systems that, in the event of an emergency in
connection with the facility, are adequate
 adequate provision for the facility in the event of an emergency in respect of back-up
power supply, lighting, alarm systems, ballast control and emergency shut-down
systems
 a description of a response plan designed to address possible emergencies and
provide for implementation of that plan
 emergency procedures for pipes
 a description of a system that is implemented or will be implemented to ensure, as far
as reasonably practicable, the safe performance of operations that involve vessels or
aircraft.36
While the safety case must describe the means by which the operator will ensure the
adequacy of the design, construction, installation, maintenance or modification of the
facility,37 there is currently no mandatory regulatory process for industry engagement with
the regulator at the design and concept-selection stages of facility development.

The safety case approvals process is designed to take place after all design and
construction decisions have been made, operational safety assessments have been carried
out, the safety management system is in place and the facility is ready to commence
construction or installation. In its current form, the regulatory regime does not provide for an
34
OPGGS Safety Regulations 2009, Chapter 2, Part 2, Division 1, Regulations 2.5-2.8
35
OPGGS Safety Regulations 2009, Chapter 2, Part 2, Division 1, Regulations 2.9-2.11
36
OPGGS Safety Regulations 2009, Chapter 2, Part 2, Division 1, Subdivision C
37
OPGGS Safety Regulations 2009, Chapter 2, Part 2, Division 1, Regulation 2.12
early engagement mechanism that allows the regulator to assess the suitability of the design
of a particular facility prior to commencement of construction. However, consideration of a
safety case immediately before, during or even after construction of a facility has taken place
provides limited scope to make changes to a facility, at least without significant additional
costs being incurred.
Since mid-2010 (following amendments to the Safety Regulations and the then Offshore
Petroleum and Greenhouse Gas Storage (Safety Levies) Regulations), proponents of most
significant new developments have undergone early engagement with NOPSEMA on a
voluntary basis using the safety case assessment and approvals framework. This early
engagement has been highly valued by industry, particularly in terms of the increase in
knowledge and awareness of potential safety issues gained by exchanging information and
ideas with the regulator.
The UK regulatory regime requires the proponent of a production installation to prepare and
send a design notification to the regulator prior to the submission of a field development
plan. This requirement enables the regulator to comment on the design of the facility, and
allows the proponent to take the regulator’s comments in relation to health and safety into
account in the design of the facility.38 The current (informal) early engagement process in
Australia that has been trialled for new facilities has been valued by both industry and
NOPSEMA. However, the 2010 amendments were not designed to enable early
engagement in the longer term, nor intended as a complete solution to the issue of design
safety for production facilities. It is recognised that more effective engagement and improved
safety outcomes could be achieved by introducing an appropriate, targeted process in the
Safety Regulations.
In its supplementary submission to the Senate Inquiry, the ACTU recommended that
accredited HSRs and relevant unions should have the right to inspect facilities prior to
commissioning.39 However, this was not included in recommendations made by the Senate
Committee.
What are your views on the current regulatory approach to design and installation of a
facility, including the process for early engagement with the regulator?
Should early engagement with the regulator be voluntary or mandatory? Why?
Submission and acceptance of safety cases

An operator is required to submit their safety case to NOPSEMA for assessment. Prior to the
safety case being submitted for a proposed facility, the operator is required to receive
agreement from NOPSEMA on the scope of validation for the facility, unless the facility is
proposed to be constructed outside ‘Safety Authority waters’ and is to be installed and
38
The UK Offshore Installations (Offshore Safety Directive) (Safety Cases etc) Regulations 2015,
Regulation 15
39
Senate Inquiry into the WHS of workers in the offshore petroleum industry, 2018, Australian Council
of Trade Unions supplementary submission
operated in Commonwealth waters or in designated coastal waters of a State or the
Northern Territory.40
A validation of a proposed facility is a written statement made by an independent validator in

respect of the design, construction and installation (including instrumentation, process layout
and process control systems) of the facility. A validation of a proposed significant change to
an existing facility is a statement in writing by an independent validator in respect of the
proposed change.41 The validation must establish to the level of assurance reasonably
required by NOSPEMA that:
 in the case of a proposed facility, will incorporate measures to protect the health and
safety of persons at or near the facility and are consistent with the formal safety
assessment for the facility
 in the case of an existing facility, that after any proposed change or changes, the
facility incorporates measures that will protect the health and safety of persons at or
near the facility.42
An operator who has provided material for a validation must satisfy NOPSEMA that each
person who undertook the validation had the necessary competence, ability and access to
data, in respect of each matter being validated, to arrive at an independent opinion on the
matter.43
Once a safety case has been submitted to NOPSEMA, NOPSEMA may request the operator
provide further written information about any matter required by the Safety Regulations,
which then becomes part of the safety case for assessment. The Safety Regulations outline
the conditions by which NOPSEMA must accept a safety case,44 including that the safety
case is appropriate to the facility and to the activities conducted at the facility, and it
complies with the relevant regulations. NOPSEMA must be satisfied that the arrangements
set out in the document demonstrate that the risks to health and safety will be reduced to ’as
low as reasonably practicable’ or ALARP.
NOPSEMA may reject a safety case when it is not satisfied with any of the matters required
by the regulations. If a safety case is rejected, NOPSEMA is required to give the operator a
reasonable opportunity to change the safety case and resubmit it.45
Following acceptance of a safety case, NOPSEMA undertakes compliance activities,

including inspections, to monitor the operator's application of the safety case in practice. For
further information about NOPSEMA’s compliance and enforcement activities refer to
Part 6: Compliance and enforcement.
40
41
OPGGS Safety Regulations 2009, Chapter 2, Part 3, Regulation 2.40 (2&3)
42
OPGGS Safety Regulations 2009, Chapter 2, Part 3, Regulation 2.40 (4)
43
OPGGS Safety Regulations 2009, Chapter 2, Part 3, Regulation 2.40 (5)
44
45
Ibid
Revision of safety cases
The safety case is a ‘living document’, which can be updated and changed through revision.
The Safety Regulations require revised safety cases to be submitted to NOPSEMA under
the following circumstances:
 because of a change of circumstances or operations including:
- if there is a significant increase or series of increases in the level of risk to the

health or safety of persons at or near the facility
- if the technical knowledge relied upon to formulate the safety case has
become outdated
- the operator proposes to modify or decommission the facility and the
proposed modification or decommissioning is not adequately addressed in the
safety case
- the operator proposes to significantly change the safety management system
or there are reasonable grounds for believing that a series of proposed
modifications to the facility would result in a significant cumulative change in
the overall risk of major accident events.46
 NOPSEMA has requested the operator of a facility for which a safety case is in force
to submit a revised safety case.47
 it has been five years after the date that the safety case was first accepted or a
revised safety case was accepted.48

The revision of safety cases was raised as a concern by some stakeholders during the
Senate Inquiry, relating to the circumstances under which safety cases should be reviewed,
in particular once the workforce has been hired, and the power of a HSR to trigger a review.
Worker involvement in the development of safety cases is outlined in Part 5: Workplace

arrangements. It notes stakeholders’ views that a review of the safety case following hiring of
the workforce should be required to ensure the new workforce understands the safety case,
the hazards and risks they will be exposed to, and the control measures in place to manage
them. While the Safety Regulations do not explicitly require a revision of the safety case in
situations where a new workforce has been hired, the regulations do not prohibit a revision
of the safety case if the circumstance satisfies a requirement under the range of ‘change in
circumstance or operations’ triggers or is requested by NOPSEMA.49
During the Senate Inquiry, stakeholders also called for HSRs to be given the ability to trigger
a review and revision of a safety case in certain circumstances, citing a need for greater
46
47
48
49
OPGGS Safety Regulations 2009, Chapter 2, Part 2, Division 3, Regulation 2.30 and 2.31
consistency with the WHS Regulations. The Senate Committee recommended that HSRs
have the ability to trigger a review and revision of the safety case in certain circumstances.50
Under the WHS Regulations, HSRs have the ability to trigger a review of a variety of safety
management-related documents, including the major hazard facility’s safety assessment,
emergency plan, safety management system and risk control measures.51 In these
situations, HSRs must reasonably believe that the circumstances (for example, a new major
hazard risk has been identified or a control measure does not minimise risk to ALARP) affect
or may affect the health and safety of a member of a workgroup and the operator has not
adequately conducted a review in response to the circumstance.52 A HSR cannot directly
trigger a review of the safety case, but a review of the risk management plans described
above would require the operator to review and revise the major hazard facility’s safety case
as necessary.53
Under the OPGGS regime there is no equivalent ability for HSRs to trigger a review of the
safety management-related documents, and revisions of safety cases can only be instigated
by the operator or NOPSEMA.
What are your views on the current OPGGS provisions relating to how and when
safety case revisions occur?
What are your views on the ability of a HSR to trigger a review of a safety
management-related document, including a safety case?
Withdrawal of safety cases

NOPSEMA may withdraw acceptance of a safety case on the following grounds:
 the operator of a facility has not complied with:

- Schedule 3 to the OPGGS Act
- a notice issued by a NOPSEMA inspector
- Safety Regulations 2.30, 2.31 or 2.32
 NOPSEMA has rejected a revised safety case under regulation 2.34 which, following
reasonable opportunity to change and resubmit, still does not satisfy legislative
requirements.54
Diving safety management system (DSMS)

In addition to ensuring the health and safety of persons at or near facilities, the OPGGS
regime provides a regulatory framework for ensuring risks to the health and safety of
50
Senate Inquiry Report into the WHS of Workers in the Offshore Petroleum Industry, August 2018,
Recommendation 3
51
WHS Regulations 2011, Chapter 9, Part 9.3, Division 3, Regulation 559(4), 38(2e)
52
WHS Regulations 2011, Chapter 9, Part 9.3, Division 3, Regulation 559(4)
53
WHS Regulations 2011, Chapter 9, Part 9.3, Division 4, Regulation 563
54
persons carrying out offshore diving operations are reduced to as low as reasonably
practicable.55
The Safety Regulations require the development of a DSMS which is accepted by

NOPSEMA before any diving work can take place.56 A DSMS is a comprehensive, integrated
system for managing the safety of activities connected with a diving project. It must include
information on the diving contractor's policies and operational protocols and procedures,
equipment certification, maintenance and operating procedures, risk assessment
procedures, and management arrangements to ensure that risks to the safety of personnel
involved in the diving operations are reduced to a level as low as reasonably practicable.
Similar to the safety management system within a safety case, the DSMS must provide for:
 all activities connected with a diving project

 the preparation of a diving project plan (including consultation with the members of
the workforce in the preparation of the plan)
 the continual and systematic identification of hazards
 the continual and systematic assessment of the likelihood of the occurrence, during
normal or emergency situations of injury or damage associated with those hazards
and the likely nature of any injury or damage
 the elimination of risks to persons involved with the project or reduction of those risks
to ALARP
 the inspection and maintenance of, and testing programs for, equipment and
hardware integral to the control of those risk
 communications between persons involved in a diving project
 performance standards that apply to the DSMS
 a program of continuous improvement.57
The DSMS must specify any standard or code of practice that is to be used in a diving
project and require the diving to be carried out in accordance with those standards or
codes.58
NOPSEMA must reject a DSMS if the DSMS does not adequately comply with regulation 4.4
of the Safety Regulations (Contents of DSMS) or NOPSEMA is not satisfied that there was
consultation with divers and other members of the workforce in the preparation of the
DSMS.59
NOPSEMA must keep a register of each DSMS and revised DSMS it receives in a form that
allows public access.60 The primary purpose of this requirement is to ensure that operators
55
OPGGS Safety Regulations 2009, Chapter 4
56
OPGGS Safety Regulations 2009, Chapter 4, Part 2, Regulation 4.3
57
58
Ibid
59
OPGGS Safety Regulations 2009, Chapter 4, Part 2, Regulations 4.7
60
OPGGS Safety Regulations 2009, Chapter 4, Part 2, Regulation 4.9 and NOPSEMA DSMS
Register: https://www.nopsema.gov.au/assets/Safety-resources/A151.pdf
and diving contractors can readily satisfy themselves that a DSMS has been accepted and is
current before allowing diving work to begin.61
Diving project plan (DPP)

In addition to the above requirements, a DSMS requires the preparation of a DPP. A DPP is
a detailed plan developed by the diving contractor to manage a specific diving project. It is
prepared in consultation with the operator, divers and other members of the workforce
involved in the project, and must be approved by the operator before diving can commence
on the project.62
The DPP takes into account the specific requirements of the particular diving job and dive
site, and must include:
 a description of the work to be done

 a list of legislation (including the Safety Regulations) that the diving contractor
considers applies to the project
 a list of standards and codes of practice that will be applied in carrying out the project
 hazard identification
 risk assessment
 a safety management plan
 job hazard analyses for the diving operations
 an emergency response plan
 the provisions of the DSMS and the safety case that are relevant to the diving project
in particular the arrangements in the DSMS and the safety case for simultaneous
operations and emergency response
 details of consultation with divers and other members of the workforce working on the
project.63
Acceptance of a DPP by the operator is subject to two requirements: that the plan complies
with the content requirements of a DPP; and there was effective consultation in the
preparation of the plan.64 This is different to the requirement in situations where there is no
operator for a diving project, and the DPP is provided to NOPSEMA by the diving contractor
for assessment. In these situations, the DPP will be accepted only if NOPSEMA is satisfied
that the plan complies with relevant regulations; effective consultation took place in the
preparation of the plan; and when the diving operations to which the plan relates are
appropriate to be covered by a single plan.65
61
62
63
64
65
Diving operations
Divers in offshore diving operations are subject to a number of requirements to ensure they
are competent to safely carry out an activity that is reasonably likely to be necessary while
the person is taking part in the operation. A diving contractor and diving supervisor must not
allow a person to dive in the diving operation unless the person:
 is competent to carry out safely any activity that is reasonably likely to be necessary
while the person is taking part in the operation
 has a current diving qualification under the Australian Diver Accreditation Scheme
(ADAS)
 has a valid medical certificate that satisfies the regulations.66
ADAS is the Australian national occupational diver certification scheme, and was developed
by the Australian Government as a not-for-profit accreditation and certification scheme. It is
currently administered on a cost-recovery basis by the ADAS Board. ADAS delivers its
training through Accredited Training Establishments (ATEs), which must meet stringent entry
conditions and demonstrate ongoing compliance with robust administrative, operational,
training and assessment standards to achieve and maintain accreditation.
ADAS has reciprocal recognition arrangements with international occupational diving

schemes including the Health and Safety Executive of the UK, the Petroleum Safety
Authority of Norway, and the Diver Certification Board of Canada. Each scheme is either a
regulator of national legislation applicable to occupational diving, or has a formal agreement
in place with a relevant national government department.
Diving start-up notice

The Safety Regulations require that, at least 14 days before the day when diving is to begin,
or any other day agreed with NOPSEMA, the operator or if there is no operator, the diving
contractor, must provide a start-up notice for a diving project to NOPSEMA. The start-up
notice for a diving project is a written notice containing a range of information stipulated in
the Safety Regulations, including; the contact details of the diving contractor for the project;
the expected date of diving commencement; the project’s location; purpose and depth to
which divers will dive.67

An operator must not approve a DPP unless satisfied that the plan meets the content
requirements for a DPP, and that there was effective consultation in the preparation of the
plan. There is nothing to require that the DPP includes content in relation to diving
operations at more than one facility, which may or may not be similar in nature, nor to
assess the appropriateness of having multiple diving operations covered by a single plan.
66
OPGGS Safety Regulations 2009, Chapter 4, Part 8, Regulations 4.25-4.26
67
The purpose of having an approved DPP is to take into account the specific safety
requirements of a particular diving project and dive site. This purpose cannot be satisfied if a
plan relates to different facilities at which the risks associated with diving operations are
different. Inclusion of diving operations at more than one facility in a single DPP is only
appropriate where the risks being dealt with in the DPP are of the same kind. This concept
was reflected in 2016 amendments to Part 5 of the Offshore Petroleum Greenhouse Gas
Storage (Resource Management and Administration) Regulations 2011 regarding well
operations. The amendments introduced a new criterion of acceptance for a well operations
management plan, in which a plan, if it applies to more than well, must demonstrate that the
risks to the integrity of each well are similar.68
The WHS Regulations provide a regulatory framework for the carrying out of general,
incidental and high risk diving work, including the management of risks to health and safety
associated with diving activities. While the WHS Regulations provide for the development of
a dive plan, its requirements are not as comprehensive nor detailed as requirements for a
DSMS and DPP under the Safety Regulations.69
Further, the requirements for competency and training of divers differs between the OPGGS
regime and the WHS regime. Under the WHS Regulations, persons carrying out diving
activities must hold a current certificate of medical fitness; relevant competencies specified
in Australian/New Zealand Standards; and have acquired knowledge and skills relevant to
the diving work where necessary.70 This contrasts to the offshore regulatory regime for
safety which specifically requires an ADAS qualification, in addition to a medical certificate
and relevant competency.
What are your views on the current requirements for a DSMS and DPP, including the
content requirements, approval and training and certification processes?
What are your views on the consultation requirements for a DSMS and DPP?
Do you think the OPGGS regime requirement for offshore divers to hold an ADAS
qualification leads to optimal safety outcomes?
Should the offshore regulatory regime for safety impose additional requirements or
recognise other qualifications? Why/why not?
68
OPGGS Resource Management and Administration Regulations 2011, Part 5, Division 3,
Regulation 5.08
69
WHS Regulations 2011, Chapter 4, Part 4.8, Division 3, Regulations 178-179
70
WHS Regulations 2011, Chapter 4, Part 4.8, Division 2 and Division 4
Part 4: Duties, training, competency and
mental health
Introduction
All workers have the right to work in places where risks to their health and safety are
properly controlled. This part outlines duties of care, appropriate training and competency of
workers, and the creation and promotion of workplaces which support positive mental
wellbeing. All these factors play a critical role in ensuring risks to the health and safety of
persons in the workplace are effectively managed. These duties form part of the broader
integrated OPGGS regime, which also includes duties for environmental management and
well integrity.
Duties of care
Under the OPGGS regime, the operator of the facility is the principal duty holder, and is
ultimately responsible for managing the risks to the health and safety of persons at or near
the facility. Importantly, consistent with leading practice safety regulation, the OPGGS
regime recognises that other parties and individuals, who create or have the greatest control
of the health and safety risks, also have a responsibility to manage these risks.
Duties in relation to occupational health and safety

Schedule 3 to the OPGGS Act sets out the primary OHS duties of an operator. The operator
has general duties to ensure the facility is safe and without risk to the health of any person at
or near the facility, and to ensure that all work and other activities carried out on the facility
are done so in a safe manner and without risk to persons at or near the facility. The OPGGS
Act also contains a range of specific duties placed on the operator, including the operator’s
duty to: implement and maintain emergency procedures; ensure members of the workforce
are provided with training necessary for them to carry out their activities; and develop an
OHS policy and agreement in consultation with the workforce.71
The OPGGS Act also imposes OHS duties on specific persons and parties, including:
 persons in control of parts of a facility of particular work

 employers
 manufacturers of any plant or substance
 suppliers of facilities, plant and substances
 titleholders - in relation to wells
 persons erecting facilities or installing plant
 persons at a facility.72
71
OPGGS Act 2006, Schedule 3, Part 2, Division 1, Clause 9
72
OPGGS Act 2006, Schedule 3, Part 2, Division 1, Clauses 10-15.
The general duty placed on persons at a facility requires that any person at a facility must
take all reasonably practicable steps to ensure a person does not take any action, or make
any omission, that creates a risk or increases an existing risk, to the health and safety of that
person or any other person at or near the facility.73 Further, this duty ensures that a person
at a facility must also cooperate with the operator (or another person listed under an OHS
law) to the extent necessary to enable the operator (or that other person) to fulfil their OHS
obligation. This duty also imposes an obligation on persons to use equipment that is:
supplied by the operator, an employer or any other person in control of work at the facility;
and is necessary to protect the person’s health and safety. The use of equipment must be in
accordance with any instructions given by the equipment supplier, consistent with the safe
and proper use of the equipment.74 A breach of the requirements described in this paragraph
is an offence under the OPGGS Act.75
The OPGGS regime also places duties on the operator and other employers in relation to
HSRs and HSCs. These are outlined in Part 5: Workplace arrangements.
Reasonably practicable and ALARP

Each OHS duty under the OPGGS regime is subject to a qualifier. For all duty holders,
except petroleum and greenhouse gas titleholders in relation to wells, the qualifier is ‘take all
reasonably practicable steps’. For petroleum and greenhouse gas titleholders in relation to
certain activities for wells,76 the qualifier is ‘as low as reasonably practicable (ALARP)’. Both
stem from the concept of ‘reasonable practicability’ established in the key 1949 UK case of
Edwards v National Coal Board,77 in which the Court of Appeal held that the risk has to be
weighed against the measures necessary to eliminate the risk, and that the greater the risk,
less will be the weight given to the factor of cost.78
The concept of ALARP and the reduction of risks to ALARP in safety management systems
by duty holders is outlined in Part 3: Objects, safety cases and diving safety management
systems.
Breaches of an OHS duty and requirements under the related duty clauses of the OPGGS
Act are an offence. The enforcement of OHS duties is outlined in Part 6: Compliance and
enforcement.

Both the OPGGS and WHS Acts apply duties of care to a group of primary duty holders and
other persons. The broad “general duties” approach covering a range of parties affecting
73
OPGGS Act, Schedule 3, Part 2, Division 1, Clause 15.
74
OPGGS Act, Schedule 3, Part 2, Division 1, Paragraph 15(1) (c).
75
OPGGS Act, Schedule 3, Part 2, Division 1A
76
New clauses 13A and 13B of the OPGGS Act were added in 2010 to specifically address risks to
the OHS of persons arising from wells and well operations, Offshore Petroleum and Greenhouse Gas
Storage Legislation Amendment (Miscellaneous Measures) Act 2010
77
Edwards v National Coal Board [1949] 1 All ER 743
78
K. Bills and D. Agostini, 2009, Offshore Petroleum Safety Regulation: Better practice and the
effectiveness of the National Offshore Petroleum Safety Authority
workplace health and safety is consistent with the Robens-style principle of the “creation of a
more unified and integrated system”.79 The WHS Act sets out the primary WHS duty which
applies to persons conducting a business or undertaking (PCBU) and particular duties of
care for certain PCBUs, including designers, manufacturers, suppliers, importers of plant,
substances or structure.80 Both regimes apply the concept of ‘reasonable practicability’ in
reducing risks to the health and safety of persons.
The key difference between the health and safety duties in the OPGGS and WHS Acts is
that the offshore regime applies duties of care to a more specific set of persons directly
relevant to offshore oil and gas activities, and in more detail. For example, the duties of
titleholders relate to ensuring a well that has been used or constructed, is being used,
maintained or altered, or is being prepared for use in connection with operations authorised
by the title, is so designed, constructed, commissioned, altered, equipped, maintained and
operated that risks to health and safety of persons at or near a facility are kept as low as
reasonably practicable. The industry-specific language (such as ‘persons at or near a
facility’) includes the persons who are engaged in a well-related activity, such as drilling the
well, as well as any other persons who are at or near a facility. This also expressly extends
to divers, who may be exposed to risk from a well while carrying out operations at a well that
are not facility-related.
On the other hand, the WHS Act applies duties to a wider group of primary duty holders and
extends their duty of care to a wider group of persons across a broader range of industry
sectors. The term PCBU is a broad term used in the WHS Act to describe all forms of
modern working arrangements.81 The Safe Work Australia review of the model WHS laws
stated that the use of the PCBU concept was intended to be broad enough and flexible
enough to incorporate new industries, new ways of working and new risks arising from work
into the model WHS framework,82 and included a recommendation to improve clarity on this
issue.83
Do you think the OHS duties of care under the OPGGS regime are clear and effective?
If not, what do you think could be improved?
79
The Robens Report 1972, para 41, http://regnet.anu.edu.au/research/centres/national-research-
centre-ohs-regulation-nrcohsr/overview-work-health-and-safety-regulation-australia
80
WHS Act 2011, Part 2, Divisions 2 and 3, Sub-sections 19-26
81
Safe Work Australia, Interpretive Guideline Model WHS Act, The meaning of PCBU,
https://www.safeworkaustralia.gov.au/system/files/documents/1702/interpretive_guideline_-_pcbu.pdf
82
Safe Work Australia, 2018, Review of the model WHS laws, Discussion Paper
83
Safe Work Australia, 2018, Review of the model WHS laws and Safety laws, Final report
https://www.safeworkaustralia.gov.au/system/files/documents/1902/review_of_the_model_whs_laws_
final_report_0.pdf
Training and competency of offshore workers
Permit to work system
In the Public Inquiry into the Piper Alpha Disaster Report,84 the Hon Lord Cullen described a
‘permit to work system’ as a formal written system which is used to control certain types of
work which are potentially dangerous. Within that system the permit is a formal written
means of making sure that potentially dangerous jobs are approached and carried out with
the use of appropriate safety procedures. Cullen further described a permit to work system
as an essential part of a procedure to ensure that the work is done safely.
The OPGGS regime provides for a permit to work system. Prescribed in the Safety
Regulations, the permit to work system requires that the safety case provide for the operator
of a facility to establish and maintain a documented system for coordinating and controlling
the safe performance of all work activities of members of the workforce. Some specific
higher-risk activities are listed in the Safety Regulations, and must be documented in the
safety case. These include:
 welding and other hot work

 cold work (including physical isolation)
 electrical work (including electrical isolation)
 entry into, and working in, a confined space
 procedures for working over water
 diving operations.85
Further, the permit to work system must form part of the safety management system
described in the safety case in force for the facility; identify the persons having the
responsibility to authorise and supervise work; and describe how the operator will ensure
members of the workforce are competent in the application of the permit to work system.
The permit to work system places the onus on industry to ensure competency of their
employees undertaking high-risk work, and must be assessed and accepted by NOPSEMA
through the safety case.
Training and competency

The Piper Alpha Inquiry report emphasised that in order to have an effective permit to work
system, it is essential that the personnel who are required to operate the system are
thoroughly trained in all its aspects.86 As the OPGGS regime is outcomes-based, the
appropriate training is not prescribed in legislation or regulations, instead placing this
obligation on the operator.
84
http://www.hse.gov.uk/offshore/piper-alpha-disaster-public-inquiry.htm
85
86
http://www.hse.gov.uk/offshore/piper-alpha-disaster-public-inquiry.htm, Volume 1, Chapter 11
The training and competency of offshore workers is provided for under the OPGGS Act and
Safety Regulations through a number of different legislative requirements, including:
 the duty of operators and other specified persons and parties to take all reasonably
practicable steps to provide all members of the workforce with the information,
instruction, training and supervision necessary for them to carry out their activities in
a manner that does not adversely affect the health and safety of persons at the
facility.87
 the requirement that the safety case must describe the means by which the operator
will ensure that each member of the workforce at the facility has the necessary skills,
training and ability to undertake routine and non-routine tasks that might be
reasonably given to them, and to respond and react appropriately in the event of an
emergency.88
 the requirement (described above) that the permit to work system must ensure
members of the workforce are competent in the application of the permit to work
system.89

The WHS Regulations require that a person must not carry out a class of high risk work
unless the person holds a high risk work licence for that class of high risk work. This
requirement is subject to some exceptions including when a person: is currently undertaking
training towards a certification in order to be licensed to carry out the high risk work; has
completed their vocational education and training (VET) licensing course within 60 days; is
under assessment of their competency in relation to the work; or is installing equipment,
testing equipment, and moving equipment.90 The WHS Regulations outline the process for
licencing of high risk work, including: the licencing process; amendment of a licence
document; and renewal, suspension and cancellation of a high risk work licence.91
Further, the high risk work licence class and associated VET courses that are required to be
completed are outlined at Schedule 4 of the WHS Regulations.
Under the WHS Act, a PCBU has a duty of care to ensure, so far as is reasonably
practicable, the provision of any information, training, instruction or supervision that is
necessary to protect all persons from risks to their health and safety arising from work
carried out as part of the conduct of the business or undertaking.92 This WHS duty is
consistent with the OHS duty under OPGGS regime.
The OPGGS regime differs to the WHS Regulations in that it does not dictate which licence
specific employees must hold, nor which VET course employees must undertake to obtain
the relevant licence. The OPGGS regime enables the offshore petroleum industry to specify
and ensure the appropriate training of employees relevant to their needs. The training
87
OPGGS Act 2006, Schedule 3, Part 2, Division 1, Clauses 9-11 and 15.
88
Safety Regulations 2011, Regulation 2.9.
89
Safety Regulations 2011, Regulation 2.10, 2(c).
90
WHS Regulations 2011, Part 4.5, Division 1, Subdivision 1, Regulations 81-82.
91
WHS Regulations 2011, Part 4.5, Division 1, Subdivision 1, Regulations 81-112.
92
WHS Act 2011, Part 2, Division 2, Section 19(3) (f).
requirements of the workforce must be outlined in the safety case, which is assessed and
accepted by NOPSEMA.
Witnesses during the Senate Inquiry raised the issue of a lack of, or deficiencies in, training
and certification for high risk work required under the OPGGS regime. Specifically, some
witnesses commented that they considered the OPGGS permit to work system to be less
rigorous than training requirements under the WHS Act and WHS Regulations, and claimed
that it does not require certification or licensing for high risk work. Some witnesses
expressed a view that the operation of high risk equipment requires a license to ensure that
appropriate training is undertaken to operate the equipment safely.
Further, they commented that the risks associated with high risk equipment are inherent and
not confined to particular industries. Therefore, witnesses claimed that it was appropriate
that equipment, which requires a license to operate onshore, should require a comparable
licence to operate offshore.93
The Senate Committee concluded that individuals working offshore should have the same
calibre of qualifications as those required by individuals onshore, and recommended that the
OPGGS Act be amended to provide for consistency with the WHS Act in regard to a
licensing system for workers performing high risk work.94
At a department-led Safety Workshop in 2018 some participants emphasised that training for
offshore oil and gas participants should be improved. This view covered all levels of the
workforce, such as middle and senior management, and was not just in relation to HSRs and
frontline workers. Participants expressed views including: the right people should be trained
for the right positions; requirements in safety cases for training are not consistent nor high
enough; there needs to be a focus on new technology and training on risk and competency;
there is a difference in training across companies; and there no specified standards. An
outcome statement was proposed by participants describing what ‘good’ looks like in regards
to the training of participants: “Every person/worker understands their job role and how to do
it safely through training, and each role has a list of Australian Qualifications Framework
qualifications”.95
What are your views on the effectiveness of the OPGGS permit to work system? If you
believe there are deficiencies, what are they and how should they be addressed?
What are the benefits and challenges of implementing a licencing system for high risk
work, similar to that under the WHS Act and WHS Regulations, in the offshore oil and
gas industry?
What are your views on the training of offshore oil and gas participants more
broadly? Do you think current provisions under the OPGGS regime adequately
provide for training of all participants?
93
Senate Inquiry Report into the WHS of Workers in the Offshore Petroleum Industry, August 2018
94
Recommendation 5.
95
Offshore Safety Review Workshop, 2018, Report for the Department of Industry, Innovation and
Science, Noetic Group
Mental health of offshore workers
Understanding how to support positive mental wellbeing in the workplace, as well as those
employees with mental health conditions, is critical to ensuring a safe and healthy
workplace. Work on an offshore facility can present unique challenges for the management
of mental health. Offshore workers face challenges such as:
 an isolated environment
 the transition between work and home life
 separation from family and community
 the stress of working in a high hazard industry
 shift work leading to higher risk of fatigue
 confined conditions
 lack of privacy.
These can all have an adverse impact on social, emotional and psychological well-being.
Similar to physical health and safety, the management of mental health should involve the
identification of hazards, assessment of risks, identification and implementation of controls,
and review of the hazards and control measures to assess effectiveness. Managing risks to
psychological health and safety should include prevention, early intervention and support of
recovery.
Under the OPGGS Act, operators and other specified persons and parties have a duty to
ensure they take all reasonably practicable steps to provide a physical environment at the
facility that is safe and without risk to health. Further, adequate facilities must be provided
and maintained for the welfare of all members of the workforce.96 Within these duties,
physical and psychological health are not differentiated.

Under the WHS Act, ‘health’ is defined as ‘physical and psychological health’.97 As such, all
provisions that relate to health also explicitly apply to psychological health, such as through
preventing workers and other persons against harm to their health, through providing for
consultation and representation in relation to workplace health, promoting education and
training in relation to health, and providing a framework for continuous improvement and
progressively higher standards of workplace health. The Safe Work Australia Review of the
Model WHS Laws recommended that regulations be developed to deal with psychosocial
risk.98 The OPGGS Act does not define ‘health’, and therefore the term should be interpreted
to have its ordinary meaning as defined in a dictionary.
The WA Department of Mines, Industry Regulation and Safety has prepared a Code of
Practice for mentally healthy workplaces for fly-in fly-out (FIFO) workers in the resources and
construction sectors. The code of practice recognises that, while everyone has responsibility
96
OPGGS Act 2006, Schedule 3, Part 2, Division 1
97
98
Safe Work Australia, 2018, Review of the model WHS laws, Final Report, Recommendation 2
for their own and others’ mental health and wellbeing, exposure to psychosocial hazards and
factors in workplaces should be appropriately managed by employers. Further, it aims to
reduce exposure to psychosocial hazards and risk factors for all workers, develop response
strategies for workers and provide an environment that promotes and develops a mentally
healthy workplace.99 There is currently no equivalent code of practice or guidance on mental
health in relation to the OPGGS regime.
At a Safety Workshop in 2018 led by the department, participants raised physical and mental
health as a key issue regarding the offshore petroleum industry. Participants indicated that
current legislation including the term ‘without risk to health’100 could be clarified to enable
better interpretation and application.
An outcome statement proposed by participants outlining what good looks like in relation to
physical and mental health was - “Take proactive and substantive steps to provide facilities,
systems and support aimed at sustaining and improving physical and mental health and
workforce wellbeing”.101
Do you think the current provisions in the OPGGS Act effectively promote and
support positive mental wellbeing workplaces in the offshore oil and gas industry?
Can you suggest strategies or measures to further promote and support positive
mental wellbeing workplaces in the offshore oil and gas industry?
99
WA Department of Mines, Industry Regulation and Safety, Mentally healthy workplaces for FIFO
workers in the resources and construction sectors – Code of Practice, 2 April 2019,
http://www.dmp.wa.gov.au/Documents/Safety/MSH_MHW_FIFO_COP.pdf
100
101
Offshore Safety Review Workshop, 2018, Report for Department of Industry, Innovation and
Science, Noetic Group
Part 5: Workplace arrangements
Introduction
Workplace safety relies on strong collaboration and cooperation between government,
industry, the regulator, the workforce and unions. Importantly, workplace arrangements must
be supported by a legislative framework that promotes and ensures fair and effective
workplace representation, consultation, participation and issue resolution in relation to health
and safety matters.
The OPGGS Act provides for workplace arrangements including the establishment of
designated work groups (DWGs), selection and powers of HSRs and the establishment of
HSCs.
This part of the paper examines the current workplace arrangement provisions as set out in
Part 3, Schedule 3 of the OPGGS Act, and also examines other consultation and
participation issues including: consultation on the development of safety management plans,
including safety cases; involvement of other stakeholders, such as unions, in health and
safety matters in the workplace; protection against discrimination and coercion; and
participation in governance arrangements.
Health and safety representatives

HSRs play a key role in promoting and ensuring a safe and healthy offshore workplace.
HSRs represent the health and safety interests of workers within their DWG, develop and
maintain a partnership between workers and the employer and give workers a voice in
health and safety matters in the workplace. They can make a real difference to having health
and safety issues addressed and helping to achieve better health and safety outcomes.
The adequacy of rights and protections of HSRs under the OPGGS Act was raised as a key
area of concern in the Senate Inquiry, with the Senate Committee subsequently
recommending that the OPGGS Act be amended to provide for consistency with the WHS
Act in regard to the rights, powers and entitlements of HSRs.
This section of the paper outlines the current requirements in relation to key areas involving
HSRs, provides further analysis, and poses questions for consideration by stakeholders to
be addressed through written submissions.
Selection and election of health and safety representatives

The OPGGS regime provides that one HSR may be selected for each DWG by the members
of that group, by one of two ways: if all members of the workforce unanimously agree, or if
the person is selected by an election.102
102
OPGGS Act 2006, Schedule 3, Part 3, Division 3, Subdivision A
Under the first method the decision to choose a HSR must be unanimous. If a HSR has not
been selected by the workforce within a reasonable time, the operator must invite
nominations and an election must be held if there is more than one candidate. The operator
must either conduct the election, or may leave it to the workforce or another appropriate
body to conduct, at the operator’s expense.
The OPGGS regime does not preclude workers from determining the manner in which they
select their HSR. Instead, it allows for the workforce to control the process for selecting a
HSR for a DWG. The regime clarifies that the election must be conducted in accordance with
the regulations only if requested by the lesser of:
 100 members of the workforce normally in the DWG; or

 a majority of the members of the workforce normally in the DWG.
Hence, unless it is requested by the lesser of the aforementioned categories, the election is
not required to be held in accordance with the election process set out in the regulations.
This provision allows the workforce to exercise control in determining the manner of an
election.
Once selected, the maximum term of office for a HSR is two years, unless otherwise agreed
by parties during consultations regarding the establishment and variation of DWGs. A HSR
is eligible to be selected for further terms of office.
A person ceases to be a HSR if they:
 resign as a HSR
 cease to be a member of the DWG
 are not selected to be the HSR for the DWG for a further term after their term of
office expires
 are disqualified under clause 32 of Schedule 3 of the OPGGS Act.
The provisions for the disqualification of HSRs protect others against the possibility of HSRs
misusing their powers. An application to disqualify a HSR may be made by the facility
operator, a work group employer, or a workforce representative at the request of a member
of the work group, and must be made to NOPSEMA. Only NOPSEMA can disqualify a HSR,
and can only do so if satisfied that the HSR has acted in an improper manner. While the
OPGGS regime does not confer onto a court the power to disqualify a HSR directly, a
decision by NOPSEMA to disqualify a HSR is an administrative decision subject to review by
a court under the Administrative Decisions (Judicial Review) Act 1977.

During the Senate Inquiry, some witnesses indicated that the representation and selection of
offshore HSRs could be more closely aligned with the WHS Act.

Witnesses expressed concern that the OPGGS Act does not include sufficient provision to
allow workers to autonomously determine the manner in which they elect a HSR, however
the regime, as described earlier, already provides for this autonomous determination.
Some concern has also been raised about the ability of NOPSEMA to disqualify a HSR
under the OPGGS Act, with some witnesses expressing a view that it would be more
appropriate that the power to disqualify a HSR, which is significant, should only be exercised
by a court, consistent with provisions in the WHS Act. There are further differences in the
disqualification provisions, between the OPGGS and WHS Acts, whereby a court can
disqualify a HSR under the WHS Act for an indefinite period, while NOPSEMA can only
disqualify a HSR for a specified period not exceeding five years.
What are your views on the current selection and election requirements of HSRs
under the OPGGS regime? Why?
Do you think the current requirements sufficiently provide for workers to

autonomously determine the manner in which they elect a HSR? If no, why not, and
how do you think the election process should be determined?
What are your views on the disqualification process of a HSR under the OPGGS
regime? Why?
Powers of and protections for health and safety representatives

In order for HSRs to effectively assist in promoting and ensuring the health and safety of
group members, the OPGGS Act provides HSRs with a range of powers and functions.103
The powers provided to HSRs allow them to:
 inspect the workplace if there has, in the immediate past, been an accident or a
dangerous occurrence at the workplace, or if there is an immediate threat of such an
accident or dangerous occurrence
 inspect the workplace if the HSR has given reasonable notice of the inspection to the
operator’s representative at the facility and to any other person having immediate
control of the workplace
 make a request to a NOPSEMA inspector or to NOPSEMA that an OHS inspection
be conducted at the workplace
 accompany a NOPSEMA inspector during any OHS inspection at the workplace by
the inspector (whether or not the inspection is being conducted as a result of a
request made by the HSR)
 if there is no HSC in relation to the members of the workforce at the facility—
represent group members in consultations with the operator and any work group
employer about the development, implementation and review of measures to ensure
the health and safety of those members at the workplace
 if a HSC has been established in relation to the members of the workforce at the
facility—examine any of the records of that committee
103
OPGGS Act 2006, Schedule 3, Part 3, Division 3, Subdivision B
 investigate complaints made by any group member to the HSR about the health and
safety of any of the members of the workforce (whether in the group or not)
 with the consent of a group member, be present at any interview about health and
safety at work between that member and a NOPSEMA inspector; or the operator; or
a work group employer
 obtain access to any information under the control of the operator or any work group
employer relating to risks to the health and safety of any group member and relating
to the health and safety of any group member
 issue provisional OHS improvement notices.104
In exercising their role, a HSR may be assisted by a consultant at the workplace or provide
information to a consultant in cases where the operator, or NOPSEMA, has agreed in writing
to the provision of consultant assistance. The consultant may be present at interviews
relating to health and safety at work, involving a group member and a NOPSEMA inspector
and/or the operator, with that group member’s consent.105
It is important to note that a HSR does not have a legal obligation to exercise any of the
powers conferred on them by the OPGGS regime while they are a HSR, nor are they liable
in civil proceedings because of a failure to exercise a power or the way it was exercised in
their role as HSR.106
Provisional improvement notices and direction to stop unsafe work

A provisional improvement notice (PIN) is a tool to improve health and safety in a workplace,
encouraging employers and workers to openly discuss health and safety issues in their
workplace. It is a written direction from a HSR to a responsible person (the person who is
responsible for the contravention), requiring them to take action necessary to prevent any
further contravention or the likely contravention of an OHS law. A PIN should only be used if
agreement to rectify the problem cannot be reached through normal consultation
processes.107
The OPGGS regime outlines the processes through which PINs can be issued and notified;
possible OHS inspections by NOPSEMA; compliance with a PIN; when a notice ceases to
have effect; and a HSR’s ability to appeal to the Fair Work Commission against a
NOPSEMA inspector’s decision to vary or cancel the PIN.
A HSR has, in circumstances where a supervisor cannot be contacted immediately, the

authority under the OPGGS regime to direct a group member or members to cease, in a
safe manner, to perform work, if the HSR has reasonable cause to believe that there is an
imminent and serious danger to the health or safety of any person at or near the facility
arising from that particular work.108
104
105
106
107
108
Duties of the operator and other employers in relation to health and
safety representatives
The OPGGS regime recognises that HSRs play an important part in the regulation of health
and safety by affording the necessary powers required to undertake the role. While being a
HSR is a very important role, it is not a full-time position, and it is a responsibility a worker
takes on in addition to their everyday job. Importantly, therefore, it is necessary that the
regime sufficiently imposes duties on operators and other employers, so they fully
understand and comply with obligations they need to fulfill in relation to their HSRs.
Broadly, the operator of a facility has duties and obligations to their HSRs, including to:
 consult with HSRs on the implementation of changes at any workplace at which

some or all of the group members perform work, where the changes may affect their
health and safety
 allow HSRs to inspect the workplace and accompany a NOPSEMA inspector during
an OHS inspection at the workplace by the inspector
 permit HSRs to be present at any interview about health and safety with the consent
of the group member
 provide HSRs access to any information relating to risks to the health and safety, or
the health and safety of any group member
 permit HSRs to take such time off work, without loss of remuneration or other
entitlements, as is necessary to exercise the powers of a HSR
 provide HSRs with access to such facilities as are necessary for the purposes of
exercising the powers of a HSR
 maintain and display an up-to-date list of all the HSRs of DWGs and ensure the list is
available to NOPSEMA and the workforce at all reasonable times
 permit the HSR to attend training relating to OHS that is accredited by NOPSEMA,
and permit the HSR to take such time off work, without loss of remuneration or other
entitlements, as is necessary to undertake the training.
It is unlawful under the OPGGS Act to dismiss an employee, discriminate against an

employee or perform an act that prejudicially alters the employee’s position, or threaten to do
any of those things, because the employee has complained about an OHS matter, assisted
an OHS inspection or ceased work in accordance with a valid direction by a HSR.109
Protection against discrimination and coercion is outlined later within Part 5: Workplace
arrangements.

During the course of the Senate Inquiry some witnesses stated that HSRs are
disadvantaged in terms of their protections and rights under the OPGGS Act, compared with
onshore HSRs covered by the WHS Act. These claimed inconsistencies, including the
109
OPGGS Act 2006, Schedule 3, Part 5, Clause 88
election and disqualification processes, training, membership of HSCs and engagement with
NOPSEMA are detailed in other parts of this paper.
A consistent theme that arose in the Senate Inquiry and during introductory stakeholder
workshops led by the department, is the perceived gap between the requirements set out in
the legislation and how they are implemented in practice. Evidence presented during the
Senate Inquiry outlined situations where HSRs have not felt supported or protected to
perform their role by operators, other employers and NOPSEMA, and alleged occasions
where HSRs have feared reprimand by their employers for raising health and safety issues.
The Senate Committee considered that a culture of fear and reprisal exists, which it
described as detrimental to achieving positive health and safety outcomes in the offshore
petroleum industry.
Do you think the current provisions under the OPGGS regime on the powers and
protections for HSRs are effective?
What evidence can you provide to support your views?
Are there any other powers of and protections for HSRs that should be provided for?
If so, what are they and why do you think they are needed?
Are there any other operator duties and obligations to HSRs that should be provided
for? If so, what are they and why do you think they are needed?
Training for health and safety representatives

To effectively and competently perform the role of a HSR and represent workers in their
work group, it is important that HSRs receive the necessary training to ensure they
understand their role, and know how, when and where they can exercise their legal powers.
Not only is training important when HSRs are first nominated for the role, but also on an
ongoing basis during their term of office to ensure the currency of their knowledge and skills.
The OPGGS regime mandates that HSRs must undertake training relating to OHS that is
accredited by NOPSEMA. The operator of an offshore facility, or a person other than the
operator who is the employer of the HSR, must permit the HSR to take time off work to
complete training without loss of remuneration or other entitlements.110
The process for training accreditation involves NOPSEMA reviewing training material to
ensure it conforms to NOPSEMA’s course outline, reviewing the training provider’s
organisation and confirming the training provider’s Registered Training Organisation
status.111
110
111
NOPSEMA, https://www.nopsema.gov.au/safety/health-and-safety-representatives/#Training-for-
HSRs
During the course of the Senate Inquiry and the department’s workshops, some
stakeholders expressed the view that the OPGGS regime is inadequate in relation to the
training entitlements of HSRs compared to the WHS Act, with the following areas of
particular concern:
 the WHS Regulations entitle a HSR to undertake an initial course of training of five
days or an approved bridging course and then one day’s refresher training each year
 the OPGGS Act does not prescribe the same terms as the WHS Act, such as the
number of days for the initial training and the requirement for annual refresher
training.112
However, the OPGGS Act does require that the HSR must take OHS training which has
been accredited by NOPSEMA, with the operator required to ensure that the HSR does not
experience loss of remuneration or entitlements to undertake the training. A single,
independent accreditation process for training material and providers can be viewed as
reducing the risk of generalised training. Generalised training can be potentially driven by
economic factors and may not be specifically tailored to meet industry needs. There are no
provisions in the OPGGS Act which prevent a HSR from choosing their training provider,
subject to the requirement that training courses must be accredited the regulator.
The OPGGS and WHS Acts are different with regards to training provisions for HSRs. The
WHS Act and WHS Regulations set out the requirement for PCBU to allow HSRs to
undertake approved training if requested by a HSR for a work group for that business, and
allow an initial course of training of five days and one day’s refresher training each year.113
Further, the WHS Act allows HSRs to choose their OHS training course, in consultation with
the PCBU, and requires the PCBU to, within 3 months after the request is made, allow HSRs
time off work to attend the course of training and pay the course fees and any other
reasonable costs associated with the HSR’s attendance at the course of training. The Safe
Work Australia Review of the Model WHS Laws recommended a mechanism for resolving
disputes involving training.114
There are further differences between the OPGGS and WHS Acts, in that the OPGGS
regime does not: prescribe periods of initial and refresher training; explicitly state that HSRs
are entitled to choose the approved HSR training course they undertake; or explicitly
prescribe that the operator or employer pay for OHS training course fees and any other
reasonable costs associated with the HSR’s attendance at the course.
The Senate Committee recommended that the OPGGS Act be amended to provide for
consistency with the WHS Act in relation to HSR training.115
112
113
WHS Act 2011, Section 72(2) and WHS Regulations 2011, Part 2, Division 2, Regulation 21
114
Safe Work Australia, 2018, Review of the model WHS laws and Safety laws, Final report,
Recommendation 10
115
Senate Inquiry Report into the WHS of Workers in the Offshore Petroleum Industry, 2018,
Recommendation 1
Some stakeholders have also queried the intent of the training clause, and the types of
learning opportunities that should qualify under legislation as appropriate training for HSRs.
Currently, HSR training is interpreted by NOPSEMA as training specific to the role of a HSR
under the OPGGS regime, including: the use of powers, hazard identification, incident
investigation and communications.116 Some stakeholders consider that other forms of
learning opportunities broader than the current interpretation of legislation, such as
workshops and forums, should also be able to be deemed HSR training under legislation.
What are your views on aligning the HSR training provisions under the OPGGS Act
with the WHS Act?
What would be the benefits or risks of increased alignment of HSR training provisions
with the WHS Act?
What are your views on whether additional types of learning opportunities should be
considered as ‘appropriate training’ for HSRs under the OPGGS regime?
Health and safety committees

HSCs aim to ensure that workers’ views are heard on health and safety matters. They are an
effective way operators and employers can consult and work together with workers, and
HSCs can facilitate cooperation in developing health and safety standards, rules and
procedures. HSCs are another channel for workers’ views to be raised on health and safety
matters, in addition to through the work group HSR.
The OPGGS regime provides that an HSC must be established in each work group. An HSC
consists of members chosen by the workforce representing the interests of the workforce,
and members chosen by the operator representing the interests of the operator. The HSC is
responsible for assisting in the development, implementation, review, and update of
measures designed to protect the health and safety of members of the workforce, and for
facilitating cooperation between the operator and the workforce in relation to OHS matters.
The OPGGS Act outlines the processes by which HSCs are established, including their
constitution, the selection of members and meetings; and the functions of the HSC.117
The OPGGS regime also imposes duties on the operator and other employers in relation to
HSCs, where they must make available to the HSC information relating to the risks to health
and safety of members of the workforce, and permit any member of the HSC to take such
time off work, without loss of remuneration or other entitlements, as is necessary for them to
adequately participate in the performance by the committee of its functions.118

While the OPGGS and WHS Acts are broadly similar for HSCs, there is a difference with
regards to the constitution of the committee. The WHS Act provides that if there is a HSR at
116
NOPSEMA, HSR Training Guidance 2012,
https://www.nopsema.gov.au/assets/Safety-resources/A213767.pdf
117
118
OPGGS Act 2006, Schedule 3, Part 3, Division 4. Clause 43
a workplace, that representative, if they consent, is a member of the HSC.119 The OPGGS
Act does not contain a similar provision, however it also does not preclude a HSR from being
a member of the HSC. Some stakeholders have indicated that the OPGGS Act should be
harmonised with the WHS Act to guarantee that a HSR is a member of the HSC if the HSR
consents.
Is there a need to specify in the legislation that a HSR is guaranteed a place on the
HSC if they consent? Why/why not?
Health and safety representatives’ engagement with

NOPSEMA
The participation of the workforce, and in particular HSRs, is central to the management of
safety at an offshore facility. HSRs play a key role in the identification of health and safety
risks and hazards and hence should have open engagement processes with NOPSEMA to
raise these issues.
The OPGGS Act provides a number of formal channels in which HSRs can engage with
NOPSEMA.
A HSR may:
 make a request to a NOPSEMA inspector or to NOPSEMA that an OHS inspection

be conducted at the workplace
 accompany a NOPSEMA inspector during any OHS inspection at the workplace
 attend interviews between a group member (with their consent) and a NOPSEMA
inspector.120
Further to these provisions, NOPSEMA provided evidence during the Senate Inquiry that
during inspections HSRs are invited to attend the entry and exit meetings with NOPSEMA
and the facility operator, and meet with NOPSEMA inspectors privately to discuss the
operator’s implementation of the safety management system and the requirement for
operators to consult with and enable the participation of the workforce, in relation to the risks
and hazards on facilities. Additionally, NOPSEMA issues guidance that outlines how HSRs
can contact a NOPSEMA inspector for their facility to raise concerns, or for assistance and
advice on exercising their powers, understanding the legislation and engaging with facility
management.121
Health and safety representative lists

Under the OPGGS regime the operator has a duty to prepare and keep an up-to-date list of
HSRs for that facility, and make sure that it is accessible to both NOPSEMA and members of
the facility workforce.122 The availability of the list to an inspector ensures that NOPSEMA is
119
120
OPGGS Act 2006, Schedule 3, Part 3, Division 3, Subdivision B, Clause 34
121
NOPSEMA Regulator Issue 2: 2018,
https://www.nopsema.gov.au/assets/Publications/A619419.pdf
122
OPGGS Act 2006, Schedule 3, Part 3, Division 3, Subdivision A, Clause 27
aware of who the HSRs are and who to contact if required. The OPGGS regime does not
require the operator to additionally provide lists of HSRs to NOPSEMA directly.

During the course of the Senate Inquiry, witnesses raised concerns around NOPSEMA’s
approach to engaging and supporting HSRs and a perceived lack of engagement between
NOPSEMA and HSRs. The Education and Employment References Committee (the
Committee) subsequently recommended that a centralised HSR register be maintained by
NOPSEMA123 which may assist in addressing this concern by ensuring NOPSEMA has
visibility of HSRs’ details (including the HSR’s position and contact details; their employer;
details of HSR training and their work group) and increasing scope to communicate directly
with HSRs.
Under the WHS Act, the provision of an up-to-date list of HSRs must be provided by a PCBU
to the regulator as soon as practicable after it is prepared.124 However, the provision of a
HSR list is not a current requirement in the model WHS laws.125
The Committee noted a perceived gap between HSR arrangements as described by industry
witnesses and NOPSEMA, and evidence provided by offshore workers. In particular, some
stakeholders indicated HSRs are wary of raising OHS concerns with NOPSEMA due to fears
of negative repercussions from the operator. A lack of opportunity for HSRs to confidentially
communicate with the regulator was raised as a concern by workers, with witnesses
indicating that HSRs are afraid to speak openly to NOPSEMA inspectors and that it is
commonplace for HSRs to seek private meetings to avoid any repercussions.126
While the OPGGS regime provides that HSRs may accompany NOPSEMA inspectors
during inspections, witnesses stated during the senate hearings that there were instances
where NOPSEMA has conducted a site inspection without a HSR present, resulting in
NOPSEMA inspectors being unable to hear the safety concerns of HSRs. As a result, the
Senate Committee recommended that HSRs be required to accompany NOPSEMA
inspectors on their inspections, and that NOPSEMA inspectors be required to meet
separately and privately with HSRs during inspections.127
The instances mentioned in the Committee hearings may have been the result of a
misconception, resulting from NOPSEMA conducting environmental management
inspections under Schedule 2A of the OPGGS Act and the Environment Regulations. To
address this, NOPSEMA has since implemented a new policy that all NOPSEMA inspectors
should meet with HSRs at the beginning of every environmental management inspection.
123
Recommendation 2
124
125
Model WHS Act, Section 74
126
Senate Inquiry Report into the WHS of Workers in the Offshore Petroleum Industry, 2018
127
Recommendation 8
Under the WHS Act, the provision allowing HSRs to accompany an inspector during an
inspection is consistent with the OPGGS Act, in that the HSR may accompany an inspector,
but is not required to do so.
Do you think the current legislative provisions for engagement between HSRs and
NOPSEMA are effective?
Do you think proposed amendments to the provisions regarding HSR lists, and
mandating that HSRs accompany and meet with NOPSEMA inspectors (as outlined
above), would improve engagement?
Can you suggest further strategies (legislative or non-legislative) to improve

engagement between NOPSEMA and HSRs?
Consultation and participation

An important feature of a leading practice health and safety regulatory regime is workforce
involvement through consultation, representation and participation in health and safety
matters in the workplace. Consultation and participation arrangements can range from
involvement in safety at the workplace, participation in the development of health and safety
guidance, to involvement in the governance structures of regulatory organisations.
Effective health and safety consultation contributes to greater awareness and commitment
from workers, more positive working relationships, greater levels of cooperation and trust,
and ultimately, improved health and safety performance.
Influenced by the 1972 UK Robens Report, which recognised the importance of worker
cooperation with management to achieve and improve on health and safety outcomes,
formal provision for workforce involvement was enacted in varying degrees across all
Australian jurisdictions from the 1970s.128 In relation to the offshore oil and gas industry, the
importance of whole workforce commitment to, and involvement in, safe operations was
emphasised by the Hon Lord Cullen in the Piper Alpha Inquiry. Specifically, Cullen
recommended that the regulatory body, operators and contractors should support and
encourage the involvement of the offshore workforce in safety.129
The OPGGS regime provides for workforce consultation and participation at both tactical and
strategic levels. This includes: involvement in the development of, and access to, safety
cases and procedural documentation; the ability to appoint people to represent their
interests; and the ability to participate in governance arrangements on health and safety
issues.
128
ANU, 2017, School of Regulation and Global Governance,
http://regnet.anu.edu.au/research/centres/national-research-centre-ohs-regulation-nrcohsr/overview-
work-health-and-safety-regulation-australia
129
http://www.hse.gov.uk/offshore/piper-alpha-disaster-public-inquiry.htm,Recommendation 27
Consultation with workers
Object and duties
Under the OPGGS regime, the principle of consultation is described in paragraph 1(e) in
Schedule 3 to the OPGGS Act. Specifically, this paragraph describes that in relation to
facilities located in Commonwealth waters an objective is “to foster a consultative
relationship between all relevant persons concerning the health, safety and welfare of
members of the workforce at those facilities”.
The OPGGS regime places a range of duties on operators, one of which relates specifically
to consultation. The OPGGS Act requires that an operator must take all reasonably
practicable steps to, in consultation with members of the workforce and any workforce
representatives, develop a policy relating to OHS.130 This OHS policy should describe how
the operator and members of the workforce will cooperate effectively to promote and
develop measures that ensure the health and safety of persons, and provide adequate
mechanisms for reviewing the effectiveness of these measures. This OHS policy should also
provide for the making of an agreement between the operator and members of the workforce
and their representatives. This agreement must provide mechanisms for continuing
consultation on OHS matters between the operator, the workforce and any workforce
representatives.
An examination of duties more broadly is contained in Part 4: Duties, training, competency

and mental health.
Designated work groups

Broad consultative provisions apply under the OPGGS regime, including the establishment
of DWGs, the appointment of HSRs, use of consultants and the establishment of HSCs.
In relation to the establishment of DWGs, the OPGGS Act requires the operator to:
 enter into consultations with workers, their representatives, their employer and HSRs
(for variations) to establish or vary DWGs in relation to the members of the workforce
at the facility (either at the request of the workforce or at the initiative of the operator).
 establish or vary the DWG in accordance with the outcome of the consultations, by
notifying members of the workforce.131
Workforce involvement in safety cases

Workforce involvement in the development and revision of safety cases is essential to
achieving positive safety outcomes. Workforce involvement is necessary so that workers
understand the hazards and risks and are able to arrive at informed opinions about the risks
and hazards to which they may be exposed.
130
131
OPGGS Act 2006, Schedule 3, Part 3, Division 2, Subdivision A
In turn, workers are more likely to do the right thing regarding safety because they know and
understand why it is required. Further, workforce involvement encourages and promotes a
positive safety culture, where workers are involved in major accident event identification and
control and aware of safety issues and their own responsibilities.132
Consultation with the workforce must be undertaken in the development and revision of
safety cases, as set out in the Safety Regulations.133 It requires that the operator effectively
consult with, and ensure participation of, members of the workforce in the development or
revision of a safety case. Involvement of members of the workforce includes members who
are identifiable before the safety case is developed and working, or likely to be working on
the relevant facility. Importantly, NOPSEMA must be reasonably satisfied that these
requirements have been demonstrated.
Similarly for the development and revision of DSMS’ and DPPs, the Safety Regulations
prescribe that effective consultation with, and participation of, divers and other members of
the workforce must take place.134 Further, details of this consultation must be provided to
NOPSEMA, including submissions or comments made during the consultation, and any
changes to the DSMS as a result of the consultation. Further examination of safety
management systems more broadly is contained in Part 3: Objects, safety cases and diving
safety management systems.
Right of entry for health and safety matters

The WHS Act provides that WHS entry permit holders have a right of entry to investigate
suspected contraventions and consult and advise workers.135 It enables an employee
representative to apply to the authorising authority for an official of that union to become a
WHS entry permit holder. The WHS framework provides union officials with the ability to
enter a workplace to inquire into safety issues, consult, and advise workers on WHS matters
in certain circumstances. It also allows HSRs to accompany inspectors during site visits. It
does not, however, provide for a right of transport for WHS entry permit holders.
The OPGGS regime does not have provisions for workplace entry by WHS entry permit
holders, equivalent to those in the WHS Act. Arrangements for accessing offshore facilities is
currently a matter for individual stakeholders to negotiate with the operator.

In regards to consultation with, and participation of, the workforce, the OPGGS regime is
less prescriptive than the WHS Act, and does not contain provisions that are equivalent to
those that are included in the WHS Act. For example, under the WHS Act, an object
expressly refers to unions as a key stakeholder – “encouraging unions and employer
organisations to take a constructive role in promoting improvements in work health and
132
NOPSEMA, 2019, Safety Case –Involving the workforce,
https://www.nopsema.gov.au/assets/Guidance-notes/A308788.pdf;
133
134
135
WHS Act 2011, Part 7, Division 1
safety practices, and assisting persons conducting businesses or undertakings and workers
to achieve a healthier and safer working environment”.136
The WHS Act contains specific duties relating to consultation with workers, whereby a PCBU
must, so far as reasonably practicable, consult with workers who carry out work for the
business or undertaking, and are, or are likely to be, directly affected by a health and safety
matter. The WHS Act specifies the nature of this consultation and the range of situations
when consultation is required, and also imposes a penalty for non-compliance with this
duty.137 The WHS Act also contains a duty requiring consultation with other duty holders. If
more than one person has a duty under the WHS Act in relation to the same matter, each
person with the duty must, so far as is reasonably practicable, consult, co-operate and
co-ordinate activities with all other persons who have a duty in relation to the same matter.
No equivalent duties specifically relating to consultation are provided for under the OPGGS
regime.138
The OPGGS regime requirement to involve workers in the development and review of safety
cases is consistent with the WHS Act. The WHS Regulations 2011 require that an operator
of a major hazard facility must consult with workers at the major hazard facility in the
preparation and review of the major hazard facility’s safety case.139
Worker involvement in the development of safety cases was the subject of discussion at
both the Senate Inquiry and the department’s Safety Workshops. Some stakeholders
expressed a view that there is a need to improve worker involvement in the development of
safety cases, including for greenfield projects. The Senate Inquiry recommended that the
OPGGS Act be amended to provide a requirement for consultation with relevant unions in
the development of the initial safety case, and a requirement of a review of the safety case
to take place with the workforce once hired (and before the commencement of operations,
where possible).140
The Senate Inquiry report noted the views of some stakeholders that NOPSEMA’s
engagement and consultation with the workforce, in exercising its functions pertaining to
work health and safety, could be improved.
During the Senate Inquiry, some witnesses expressed concerns that the OPGGS regime
does not prescribe workplace entry by WHS entry permit holders, such as unions and
employer organisations, claiming that right of entry for health and safety purposes positively
contributes to OHS compliance at a workplace. The Senate Committee recommended that a
right of entry for WHS purposes be established under the OPGGS Act requiring:
136
WHS Act 2011, Part 1, Division 2, Sub-section 3(c)
137
138
139
WHS Regulations 2011, Subregulation 575 (1) (f); Safe Work Australia’s final report into the review
of the model WHS laws recommended that the model WHS Regulations dealing with major hazard
facility are reviewed with a focus on administrative or technical amendments to ensure they meet the
intended policy objective. Safe Work Australia, 2018, Review of the model WHS laws and Safety
laws, Final report, Recommendation 32
140
Recommendation 3
 the operator of the facility to, as soon as possible, facilitate transport for the permit
holder for right of entry purposes
 the cost of transport for the permit holder to be recovered from industry by a levy
revenue to NOPSEMA
 an ability for permit holders to exercise entry for the purposes of inquiring into
multiple suspected contraventions of the OPGGS Act, including additional
contraventions identified during the course of the entry.141
The Safe Work Australia Review of the Model WHS Laws made recommendations about
right of entry for union officials assisting HSRs and notice periods for entry permit holders.142
In response to the Review of the Model WHS Laws discussion paper, unions emphasised
the importance of right of entry for WHS purposes. Many business representatives
considered the WHS entry permit holder provisions worked well where they were used for
genuine safety purposes, however, significant concerns about misuse were raised, mainly in
the construction sector.143 Similar concerns were raised at hearings of the Senate Inquiry,
where some witnesses spoke of the potential risk for the manipulation and misuse of right of
entry provisions in the offshore petroleum industry.
What are your views on the current consultation provisions provided under the
OPGGS regime?
Which consultation provisions are working well?
Which consultation provisions could be further improved?
Would you support the introduction of a right of entry provision for the offshore
petroleum industry, similar to that of the WHS Act? Would this provision lead to
improved safety outcomes for the workforce?
Information sharing and transparency

Information sharing with HSRs and HSCs
Under the OPGGS regime, HSRs have the power to obtain access to any information under
the control of the operator or any work group employer relating to risks to the health and
safety, or the health and safety, of any group member.144 Correspondingly, operators and
other employers have a duty to provide the HSR access to any information which the HSR is
entitled to access under the OPGGS Act145 and make available to a HSC any information
141
Recommendation 4
142
Safe Work Australia, 2018, Review of the model WHS laws and Safety laws, Final report,
Recommendations 8 and 15
143
SafeWork Australia, WHS Model Laws Review, Discussion Paper Public Consultation Summary
https://www.safeworkaustralia.gov.au/system/files/documents/1808/2018-review-public-consultation-
summary_1.pdf
144
OPGGS Act 2006, Schedule 3, Part 3, Division 3, Clause 34(1)(d)
145
OPGGS Act 2006, Schedule 3, Part 3, Division 3, Clause 40(1)(d)
possessed by the operator or employer relating to the risks to health and safety to members
of the workforce.146
Certain information must not be made available to a HSR and/or their consultant and an
HSC. In the case of a HSR, the operator must not permit a HSR to have access to
information that is of a confidential medical nature (unless the person to whom the
information relates consents or the information is in a form that does not identify the person)
and the operator is not required to give a HSR access to information in relation to which the
operator is entitled to claim, and does claim, legal professional privilege.147
In the case of a HSC the operator or any employer must not make available to a HSC
information of confidential nature relating to a person unless the person has authorised the
provision of the information or the information is in a form that does not identify the person.148
The operator, or any employer of a member of the workforce, is not required to make any
information available to a HSC if the operator or the employer is entitled to claim, and does
claim, legal professional privilege in relation to that information.149
Transparency
Health and safety matters at an offshore facility directly affect workers, the operator and
other employers (other than the operator). To ensure affected stakeholders have confidence
in the current OHS regulatory decision making process, it is critical that the regulatory
process is transparent and consultation mechanisms are in place at relevant stages of the
decision-making process.
The OPGGS regime uses consultation and information-sharing requirements to ensure the
involvement of these stakeholders in health and safety matters. The OPGGS Act and Safety
Regulations do not require wider consultation with other stakeholders such as the
community, nor publication of safety cases or diving-related safety management plans.

Access to information, in particular safety cases, by HSRs was raised during the Senate
Inquiry. The Committee received evidence to suggest that HSRs are wary of accessing
safety cases on offshore facilities for fear of being questioned or persecuted by
management. While evidence was provided stating safety cases are available electronically
at some facilities, there does not appear to be a consistent approach across the industry, nor
is it a current legislative requirement. The Committee recommended that the OPGGS Act be
amended to include a requirement that HSRs be provided with remote online access to
safety cases.150
146
OPGGS Act 2006, Schedule 3, Part 3, Division 4, Clause 43(1)
147
OPGGS Act 2006, Schedule 3, Part 3, Division 3, Clause 36 and Subclauses 40(3) and (4)
148
OPGGS Act 2006, Schedule 3, Part 3, Division 4, Subclause 43(3)
149
OPGGS Act 2006, Schedule 3, Part 3, Division 4, Subclause 43(4)
150
Recommendation 3
During stakeholder workshops, challenges surrounding the provision of online access were
raised, including the need for protection of commercial and proprietary information and
potential for version control issues. Some participants indicated that some companies
currently provide workers with online access to safety cases through the company intranet
site.
What are your views on the current provisions for information sharing?
Do you think there is a need for increased transparency in relation to the regulation of
health and safety? If so, what specific changes do you think should be made?
Participation in governance arrangements and forums

Workforce involvement includes participation in tripartite (industry, regulator and workforce)
governance arrangements or forums which assist in the development of guidance on health
and safety issues. Australia’s WHS laws have historically been based on the UK’s health
and safety laws, often referred to as Robens-style legislation. One Robens principle was the
concept of “a more effectively self-regulating system”151 that involved workers and
management working together to achieve and improve upon, health and safety standards.
The structure and composition of most of Australia’s WHS advisory boards are based on the
Robens-style principles, in that they require the participation and representation of
employees in health and safety matters, including at a governance level.
The NOPSEMA Board is a governance mechanism provided for under the OPGGS regime.
The Board provides advice and makes recommendations on the performance by NOPSEMA
of its functions and on policy or strategic matters relating to occupational health and safety,
well integrity and environmental management. Advice and recommendations can be
provided to the NOPSEMA Chief Executive Officer, the responsible Commonwealth Minister,
the relevant state and Northern Territory Petroleum Ministers, and to the Ministers
responsible for mineral and energy resources matters.152
In accordance with the OPGGS Act, Board members are selected for appointment by the
state and territory Ministers responsible for mineral and energy resources matters, prior to
being formally appointed by the responsible Commonwealth Minister.153 It must be
demonstrated that candidates can suitably contribute to the legislated functions of the Board.
The use of tripartite forums, aimed at collaboratively developing guidance on important
health and safety issues or specific hazards, is less explicit under the OPGGS regime than
in some other regimes. For example, the UK’s Offshore Major Accident Hazards Advisory
Committee, established in line with European Union Directive,154 aims at developing
mechanisms for effective tripartite consultation to consider major accident hazard prevention
151
The Robens Report 1972, para 41, http://regnet.anu.edu.au/research/centres/national-research-
centre-ohs-regulation-nrcohsr/overview-work-health-and-safety-regulation-australia
152
OPGGS Act 2006, Chapter 6, Part 6.9, Division 3
153
OPGGS Act 2006, Chapter 6, Part 6.9, Division 3, Section 656
154
EU Directive 2013/30/EU
https://euoag.jrc.ec.europa.eu/files/attachments/osd_final_eu_directive_2013_30_eu1.pdf
and associated environmental issues in the offshore petroleum industry.155 Further, the UK
HSE Board156 and Safe Work Australia157 explicitly refer to their composition as tripartite,
comprising governments, employees and employers.

During the Senate Inquiry, witnesses raised concerns about the lack of workforce
representation on the NOPSEMA Board, which was viewed as a lack of commitment to a
tripartite approach to health and safety issues in the offshore petroleum sector and ultimately
an obstacle to NOPSEMA being seen as a trusted regulator. Whilst the legislation does not
preclude workforce representatives or union representatives from being considered for
nomination, so long as they can demonstrate they are suitably qualified, it does not explicitly
prescribe that the board’s composition will be on a tripartite basis.
While acknowledging the intent of the legislation, where board members do not represent
any particular group or interest, the Committee noted that the current composition of the
board only includes individuals with experience working for industry participants. This, in the
Committee’s view, does not satisfy the need for a tripartite approach to effectively promote
strong health and safety practices across the industry. The Committee therefore
recommended that the OPGGS Act be amended to provide for equal representation of
industry and workforce participants on the NOPSEMA Board.158
What are your views on the current provisions for workforce participation in
governance arrangements?
Do you think the OPGGS Act should be amended to require representation of the
workforce on the NOPSEMA Board?
Protection against discrimination or coercion

To create a positive safety culture, workers must not be discouraged or prevented from
raising health and safety issues or exercising any of their powers or functions under
legislation. The provisions in the OPGGS Act state that an employer (whether the operator
or another person) must not dismiss an employee, perform an act that results in injury to an
employee or their employment, perform an act that prejudicially alters the employee’s
position, or threaten to do any of these things, because that employee has been involved in
or raised OHS issues.159 This provision aims to protect workers and encourage them to be
involved as HSRs or HSC members, or to raise health and safety issues as and when they
arise. Offences can be addressed through criminal proceedings and are subject to fines of
600 penalty units ($126,000) for individuals or 3000 penalty units ($630,000) for
corporations.
155
UK Health and Safety Executive, http://www.hse.gov.uk/osdr/omahac.htm
156
UK Health and Safety Executive, http://www.hse.gov.uk/aboutus/howwework/management/board-
operating-framework2016.pdf
157
Safe Work Australia, https://www.safeworkaustralia.gov.au/about-us
158
Recommendation 6
159
Issue resolution
The OPGGS regime contains provisions, such as the use of HSRs, external consultants,
HSCs and the development of an OHS agreement between the workforce and the operator,
as consultation mechanisms for workers to raise health and safety issues. For example, the
OHS policy and agreement required to be developed by the operator is intended for the
parties to have an effective consultation and OHS issue resolution process for the various
members of the offshore workplace. However, the OPGGS regime does not provide a
specific provision for issue resolution should an OHS issue be raised at a workplace that
cannot be resolved through the HSR, HSC or other consultation processes.

As part of the Senate Inquiry some witnesses claimed that within the offshore petroleum
industry there is a culture of fear around raising safety concerns. The Committee noted that
many HSRs claimed to be afraid to speak with NOPSEMA inspectors out of fear of reprisal,
and that it is common place for HSRs to surreptitiously seek meetings with inspectors to
avoid possible repercussions and pressure from the operator for approaching the regulator.
Witnesses also discussed how casual and insecure employment conditions and limited
engagement between NOPSEMA and HSRs contribute to a poor safety culture.160
There is a need to consider whether there are limitations in the current provisions under the
OPGGS regime for protection against discrimination and coercion, and the effectiveness of
the existing provisions. Compared to the OPGGS Act, the WHS Act gives wider protection
against coercive and discriminatory conduct.161 For example, in addition to the prohibition of
discriminatory conduct, the WHS Act also prohibits: the requesting, instructing, inducing,
encouraging, authorising or assisting in discriminatory conduct; coercion or inducement of a
person to exercise or not exercise a power or perform a legislated WHS function; and
misrepresentation, where a person knowingly or recklessly makes a false or misleading
representation to another person about their rights or obligations under the WHS Act.162
Unlike the OPGGS Act, the protections under the WHS Act extend beyond the employment
relationship to workers more generally.
To assist in resolving issues, the WHS Act provides that a PCBU, worker or their
representative may ask for an inspector’s assistance.163 Prior to requesting the attendance of
an inspector, the parties must make reasonable efforts to resolve the issue themselves.
Further, the WHS Act provides that where a workplace has not developed its own issue
resolution procedure, a default process is provided in the WHS Regulations.164 The OPGGS
regime does not contain an equivalent provision.
What are your views on the effectiveness of the provisions relating to the protection
of workers who are involved in or raise workplace health and safety issues, or who
160
Senate Inquiry Report into the WHS of Workers in the Offshore Petroleum Industry, August 2018
161
WHS Act 2011, Part 6
162
WHS Act 2011, Part 6, Division 1, Sections 106-109
163
WHS Act 2011, Division 5, Section 82
164
WHS Regulations 2011, Regulations 22 and 23
take on a representative role and raise health and safety issues? Do you have any
suggestions for improvements?
Do you think the current provisions for issue resolution of health and safety issues,
such as the use of HSRs, HSCs and other consultative mechanisms, are effective? If
not, what changes do you suggest?

Part 6: Compliance and enforcement
Introduction
The Organisation for Economic Co-operation and Development (OECD), in its Best Practice
Principles for Regulatory Policy, asserts that ensuring effective compliance with rules and
regulations is an important factor in creating a well-functioning society and trust in
government. It further describes that, if not properly enforced, regulations cannot effectively
achieve the goals intended by governments.165
A challenge for the Australian Government in regards to the offshore oil and gas safety
regime is to have efficient and effective enforcement strategies in place that achieve the
highest possible level of compliance, whilst also ensuring that costs and burden are as low
as possible. It is also important to ensure that the allocation of resources are proportional to
the level of risk, and enforcement actions proportional to the seriousness of the violation.166
The Regulatory Powers (Standard Provisions) Act 2014 (the Regulatory Powers Act)
provides a standard suite of provisions in relation to monitoring and investigation powers, as
well as civil penalties, infringement notices, enforceable undertakings and injunctions. These
provisions are considered to be the accepted baseline of powers required for an effective
monitoring, investigation or enforcement regulatory regime, providing adequate safeguards
and protecting important common law privileges.167 The OPGGS Act and the Safety
Regulations set out compliance and enforcement provisions for the offshore safety regime,
with certain monitoring and investigation powers subject to the requirements of Parts 2 and 3
of the Regulatory Powers Act.
NOPSEMA has compliance and enforcement functions in relation to environment, well

integrity and OHS. This part examines compliance and enforcement provisions under the
OPGGS regime, and specifically outlines the OHS functions of NOPSEMA, the compliance
and enforcement regulatory framework, including inspections and inspector powers, and
provisions for notification and reporting.
NOPSEMA’s OHS functions

NOPSEMA has the following functions in relation to health and safety:
 promote the OHS of persons engaged in offshore petroleum operations or offshore

greenhouse gas storage operations
 develop and implement effective monitoring and enforcement strategies to secure
compliance by persons with their OHS obligations under the OPGGS Act and the
Safety Regulations
165
OECD, 2014, Regulatory Enforcement and Inspections, OECD Best Practice Principles for
Regulatory Policy, OECD Publishing
166
Ibid
167
Attorney-General’s Department, Regulatory Powers Act Factsheet,
https://www.ag.gov.au/LegalSystem/Documents/regulatory-powers-act-factsheet.pdf
 investigate accidents, occurrences and circumstances that affect, or have the
potential to affect, the OHS of persons engaged in offshore petroleum or greenhouse
gas operations
 advise persons on OHS matters relating to offshore petroleum or greenhouse gas
operations
 make reports on investigations and other OHS related issues to the responsible
Commonwealth Minister and each responsible State and Northern Territory
Petroleum Minister
 provide information, assessments, analysis, reports, advice and recommendations to
the responsible Commonwealth Minister when requested
 cooperate with other Commonwealth agencies and authorities having functions
relating to regulated operations.168
Compliance and enforcement framework

The OPGGS regime provides a comprehensive compliance and enforcement regulatory
framework, a key element to safeguarding the health and safety of persons undertaking
offshore oil and gas activities. The OPGGS Act and Safety Regulations provide a suite of
provisions that allow NOPSEMA to:
 assess how the operator of a facility proposes to manage the OHS risks of their
activity and determine whether the safety case169 and/or DSMS is acceptable170
 inspect the facility to determine whether the activity is being managed in accordance
with the accepted safety plans and other legislative requirements171
 investigate where an incident occurs or where a potential non-compliance with the
legislation is suspected172
 take enforcement action where this is required to rectify and prevent recurrence of
non-compliance173
 promote and provide OHS-related advice to the offshore industry on learnings and
robust OHS management practices.174
The OPGGS Act also gives NOPSEMA the power to give the registered holder of a title a
direction about any matter in relation to which regulations may be made.175
This section outlines the compliance and enforcement mechanisms as they are provided for
in legislation, and does not describe the way they are currently implemented by the regulator
or the effectiveness of this implementation.
168
169
OPGGS Safety Regulations 2009, Chapter 2, Part, 2 Regulation 2.26
170
OPGGS Safety Regulations 2009, Chapter 4, Part, 2 Regulations 4.5 and 4.6
171
172
OPGGS Act 2006, Schedule 3, Part 4, Division 2 and OPGGS Act, Chapter 6, Part 6.5, Division 1
173
OPGGS Act 2006, Schedule 3, Part 4, Division 3 and OPGGS Act, Chapter 6, Part 6.5
174
OPGGS Act, Chapter 6, Part 6.9, Division 2, Section 646
175
Assessment
An operator cannot conduct any offshore oil and gas activity relating to facilities or diving
activity without a relevant safety case and/or DSMS that has been assessed and accepted
by NOPSEMA. The Safety Regulations stipulate the content requirements of these safety
management plans and the conditions by which NOPSEMA will accept a safety case or
DSMS.176 For more information about safety management plans, refer to Part 3: Objects,
safety cases and diving safety management systems.
Inspection
Inspections are one of the most important ways for a regulator to enforce regulations and to
ensure regulatory compliance.177 OHS inspections provide the regulator sufficient oversight
of offshore oil and gas activities and facilities to ensure that all reasonably practicable steps
are being taken to prevent major accident events and risks to the health and safety of
persons have been reduced to as low as reasonably practicable.
Inspector powers
The OPGGS Act provides substantial powers for NOPSEMA inspectors to undertake OHS
inspections. A NOPSEMA inspector may conduct an OHS inspection:
 to monitor compliance with listed OHS laws

 to investigate an accident or dangerous occurrence that has happened at or near a
facility.
The inspection may be conducted at the inspector’s own initiative or in compliance with a
direction by NOPSEMA, and does not necessarily include a physical inspection of any
facility, premises or thing.178
NOPSEMA inspectors have a range of compliance powers which they can use for the
purpose of an OHS inspection. The most significant of these powers are:
 issue an OHS ‘do not disturb’ notice to ensure the workplace, plant or substance is
undisturbed, allowing the operator or titleholder to remove the immediate threat to the
health or safety of any person, or allow the inspection, examination or measurement
of, or the conducting tests relating to the facility or a particular plant, substance or
thing at a facility179
 issue an OHS prohibition notice to prohibit an activity that is occurring or may occur
at a facility that involves, or would involve, an immediate threat to the health and
176
OPGGS Safety Regulations 2009, Chapter 2, Part 2, Division 2, Regulation 2.26 and Chapter 4,
Part 2, Regulations 4.5-4.7
177
Regulatory Policy, OECD Publishing.pp4
178
OPGGS Act 2006, Schedule 3, Part 4
179
safety of a person and it is reasonably necessary to issue the notice in order to
remove the threat180
 issue an OHS improvement notice when there has been a contravention of an OHS
law, requiring action to be taken to remove the risk to health and safety that may
result from the continuation or recurrence of a contravention of an OHS law.181
Inspection process
A NOPSEMA inspector has the power to enter and search a facility for the purpose of an
OHS inspection. They may enter a facility at any reasonable time during the day or night to
search the facility; inspect, examine, or conduct tests concerning the facility or any plant,
substance or thing; take photographs or video recordings of the facility; or take extracts or
make copies of any documents related to the OHS inspection.182
The NOPSEMA inspector, immediately upon entering a facility for the OHS inspection, must
take reasonable steps to notify the operator’s representative at a facility, the HSR for the
DWG likely to be affected by the subject of the inspection and the titleholder’s representative
(if any) at the facility.183
The OPGGS Act also requires that if there is a HSR for a DWG with a group member likely
to be affected by the subject of the inspection, the inspector must give the HSR a reasonable
opportunity to consult on the matter.184
The Senate Committee recommended that NOPSEMA and facility operators ensure that
HSRs are present and fully engaged when NOPSEMA carries out its inspections by
requiring HSRs to accompany NOPSEMA inspectors on their inspections and requiring
NOPSEMA inspectors to meet separately and privately with HSRs during inspections.185
These issues are explored in Part 5: Workplace arrangements.
Regulators are increasingly under pressure to do ‘more with less’, while still meeting
demands to better protect the environment and health and safety of citizens. The
Organisation for Economic Co-operation and Development (OECD) asserts that
enforcement needs to be risk-based and proportionate, and in particular, that the frequency
of inspections and the resources employed should be proportional to the level of risk.186
While the OPGGS regime provides the regulatory framework to allow for inspections as
described above, the practical application of the legislation is undertaken by the regulator. In
fulfilling its functions under legislation, the regulator is required to make explicit judgement in
accordance with its regulatory strategy to determine the focus of the inspection effort which
targets key aspects of risk. This risk-based approach is consistent with effective global
180
181
182
183
184
185
Recommendation 8
186
practice.187 NOPSEMA’s risk based approach to inspections is outlined in its Compliance
Strategy and Inspection Policy.188

Unannounced inspections
During the Senate Inquiry several witnesses called for regular, unannounced inspections to
be carried out by NOPSEMA as part of its standard inspection regime. This was also
supported and recommended by the Senate Committee in its report.189 Witnesses raised
concerns that the current planned nature of inspections allows duty holders to rectify, cover
up or hide issues before the inspector arrives, and if and when NOPSEMA does carry out an
unannounced inspection, the duty holder may assume that it was triggered by a report from
a HSR, and therefore put pressure on the HSR.
In response to questions from the Senate Committee, NOPSEMA advised that it has
undertaken inspections of offshore facilities at short notice (less than five days notification),
noting that NOPSEMA does not have its own helicopters to travel to a facility, and that it
ensures that its activities do not pose any additional safety risks to the facility.190
The OPGGS regime does not prevent NOPSEMA from carrying out unannounced
inspections. It is a decision for NOPSEMA to assess whether the risks of carrying out
unannounced inspections outweigh the benefits. Acknowledging the practical and logistical
difficulties associated with offshore facilities, other stakeholders assert that unannounced
inspections may pose a barrier to effective regulatory inspections and also create
inadvertent safety risks to workers at or near the facility. Further, process safety hazards
(those that can cause potentially catastrophic incidents) typically have controls that cannot
be seen and therefore require access to information and people that need to be arranged
prior to an inspection.
What are your views on the provisions for inspector powers and inspection process
under the OPGGS regime?
Do you think that unannounced inspections are necessary on offshore facilities, and
if so, why?
Monitoring compliance at vessel facilities

NOPSEMA inspectors have the power to conduct inspections at any offshore facility or
premises. This may include a vessel that is used, or has been used, for offshore petroleum
or greenhouse gas storage operations.191 Monitoring compliance at facilities that are vessels,
187
UK Health and Safety Executive’s Hazardous Installations Directorate and Norway’s Petroleum
Safety Authority
188
NOPSEMA, https://www.nopsema.gov.au/about/our-regulatory-activities/compliance-strategy
189
Recommendation 7
190
Senate Inquiry into the WHS of Workers in the Offshore Petroleum Industry, NOPSEMA answers to
questions on notice, 25 July 2018
191
OPGGS Act 2006, Chapter 6, Part 6.5, Division 1, Section 602F
however, presents regulatory challenges, as these vessels are often engaged in relatively
short scopes of work, of which only a portion of the activities may cause them to meet the
definition of a facility, and it is difficult for NOPSEMA to know when vessels are a facility and
therefore within OPGGS jurisdiction and subject to inspection.
The OPGGS regime does not contain any requirements for duty holders to notify NOPSEMA
when a vessel facility is going to be used for a relevant purpose defined under the OPGGS
regime, and as a result no timely information on the transition from vessel to facility is
provided to the regulator to facilitate compliance monitoring.
The interaction between the offshore oil and gas jurisdiction and maritime jurisdiction is
examined in Part 7: Jurisdictional coverage.
What are your views on how compliance is monitored at vessel facilities?
Should the regime provide for any additional or different requirements for compliance
monitoring?
Can you suggest ways (both regulatory and non-regulatory) in which monitoring
compliance at vessel facilities could be enhanced?
Investigation
The OPGGS Act lists those offences and civil penalty provisions that are subject to
investigation under the Regulatory Powers Act,192 which enable a NOPSEMA inspector to
enter premises where there are reasonable grounds for suspecting there may be material on
the premises related to the contravention of an offence or civil penalty provision. It includes
powers of entry, search, inspection and seizure. The inspector may only enter the premises
with the consent of the occupier of the premises or under a warrant. Evidence may only be
seized if the inspector has entered premises under a warrant.
Enforcement
Effective compliance with regulations must be properly enforced to ensure regulations
achieve the goals intended by governments.193 Under the OPGGS regime, a graduated
range of enforcement tools is available to NOPSEMA, to encourage and support improved
compliance with the regime. The range of enforcement options provided to NOPSEMA, for
the purpose of regulating OHS, include:
 power to take possession of plant and samples194

 issuing of do not disturb notices195
 issuing of prohibition notices196
192
OPGGS Act 2006, Chapter 6, Part 6.5, Division 1, Section 602D
193
194
195
OPGGS Act 2006, Schedule 3, Part 4, Division 3, Clause 76 and 76A
196
 issuing of improvement notices197
 giving directions to titleholders198
 requesting a revised permissioning document (for example safety cases and
DSMS)199
 withdrawal of acceptance of a permissioning document200
 infringement notices201
 injunctions202
 civil and criminal prosecutions203
 adverse publicity orders204.
Further, a provisional OHS improvement notice may be issued by a HSR if the HSR for a
DWG believes, on reasonable grounds, that a person is contravening, has contravened or is
likely to contravene a provision of a listed OHS law; and has attempted to reach agreement
with the person supervising the activity but has not reached agreement within a reasonable
time.205 The provisional improvement notice is outlined in Part 5: Workplace arrangements.
Penalties
In 2013, the Australian Government amended the OPGGS Act to strengthen the compliance,
monitoring, investigation and enforcement powers of the regulator and ensure that
enforcement measures for contraventions of the Act are appropriate in the context of a high-
hazard industry. Specifically, the amendments:
 introduced a civil penalty regime

 increased criminal penalty levels under the OPGGS Act, consistent with major
hazard industry legislation
 harmonised with the WHS Act, or made greater, the penalties, including custodial
penalties, for OHS offences under the OPGGS Act to reflect the greater
consequences in a major hazard industry.
The criminal penalty increases were determined following careful consideration of the
penalties that apply under comparable legislation, including the WHS Act and the
Environment Protection and Biodiversity Conservation Act 1999, and were designed to
ensure that the penalty applied is appropriate to reflect the potentially severe consequences
of non-compliance.
197
198
OPGGS Act 2006, Chapter 6, Part 6.2, Division 2, Sections 574, 576B, 586, 587
199
OPGGS Safety Regulations 2009, Regulations 2.31 and 4.11
200
OPGGS Safety Regulations 2009, Chapter 2, Part 2, Division 4
201
OPGGS Act 2006, Chapter 6, Part 6.5, Section 611F
202
OPGGS Act 2006, Chapter 6, Part 6.5, Section 611J
203
OPGGS Act 2006, Chapter 6, Part 6.5, Section 611B and Part 6.9 Section 693
204
OPGGS Act 2006, Chapter 6, Part 6.5, Section 611L
205
The OPGGS penalties are framed in accordance with the Attorney-General’s Guide to
Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.206 Many
jurisdictions have a similar approach to setting penalties, whereby, in general, a maximum
penalty aims to provide an effective deterrent to the commission of the offence, and should
reflect the seriousness of the offence within the relevant legislative scheme. A higher
maximum penalty is justified where there are strong incentives to commit the offence, or
where the consequences of the commission of the offence are particularly dangerous or
damaging.
The OPGGS regime contains offences for recklessness and negligence, when a person,
subject to a health and safety requirement, omits to do an act and breaches the
requirement.207 The penalty for recklessness is 3,500 penalty units and negligence 1,750
penalty units, which currently equates to $735,000 and $367,500 respectively for an
individual. For a body corporate these equate to $3,675,000 for recklessness and
$1,837,500 for negligence.208

Use of enforcement options
The Senate Inquiry identified a number of stakeholder concerns relating to the Enforcement
Policy of NOPSEMA and the way it uses its legislated enforcement powers. Some
stakeholders commented that NOPSEMA relied too heavily on lower levels of the regulatory
pyramid and does not use its more serious available sanctions, including prosecution, where
there is repeated non-compliance. The Committee recommended that NOPSEMA’s
Enforcement Policy be amended so that its response escalates for each instance of non-
compliance by the same organisation or in respect of the same facility, and that NOPSEMA
be directed to comply with the Enforcement Policy in respect of taking prosecution action
where there has been repeated non-compliance with legislation.209
The OECD asserts that enforcement should be based on ‘responsive regulation’ principles,
where regulatory enforcement agencies should adopt a differentiated enforcement strategy
based on the behaviour and history of the businesses they deal with.210 The OPGGS regime
provides for a hierarchy of sanctions and regulatory strategies available for the regulator to
use. The way in which the regulator moves within these hierarchies is determined by
NOPSEMA. Within this hierarchy, while prosecution is one enforcement mechanism at the
top of the enforcement pyramid, there is also provision for NOPSEMA to withdraw
206
Attorney-General’s Department, 2011, Guide to Framing Commonwealth Offences, Infringement
Notices and Enforcement
Powers,https://www.ag.gov.au/Publications/Pages/GuidetoFramingCommonwealthOffencesInfringem
entNoticesandEnforcementPowers.aspx
207
OPGGS Act 2006, Schedule 3, Part 2, Division 1A, Clauses 16A and 16B
208
Based on the current monetary value of a penalty unit of $210. The penalty unit will be adjusted
every three years from 1 July 2020 in accordance with the Consumer Price Index.
209
Recommendations 10 and 11
210
Regulatory Policy, OECD Publishing, pp.33
acceptance of a permissioning document or for the Joint Authority to decide not to renew or
to cancel a title. These enforcement options would result in the titleholder/operator unable to
legally continue to undertake operations, and arguably may result in a much higher financial
loss and reputational damage for a company.
The Safe Work Australia Review of the Model WHS Laws made recommendations about
increasing penalty levels, introducing a new offence of industrial manslaughter and a
consistent approach to sentencing.211
What are your views on the current enforcement provisions under the OPGGS
regime?
Do you think they provide sufficient and effective mechanisms and options to be
utilised by the regulator? If not, how could they be improved?
Penalties
During the Senate Inquiry, some witnesses asserted that the penalties in the OPGGS regime
are significantly lower than those under the model WHS Act and the Victorian OHS laws.
Further, it was claimed that the offences and penalties under both the OPGGS Act and the
WHS Act fall short of levels desired by regulatory experts. The Committee recommended
that the penalties in the OPGGS Act be significantly increased to bring them into line with
best practice regulation.212 However, as noted in the Government Senators’ dissenting
report, the OPGGS regime already has stronger penalties than in some other regimes.
The OPGGS regime's penalty units for a breach of primary OHS duties, with a fault element
of recklessness or negligence, are higher than the model WHS laws, WHS Act and the
Victorian OHS Act. The penalties in the OPGGS regime are expressed as penalty units,
where the penalty amounts are subject to ongoing indexation, helping to ensure continued
maintenance of the deterrent effect of the penalties. The penalty for recklessness under the
OPGGS regime is more than double the amount under the model WHS laws, WHS Act and
Victorian OHS laws, with the exception of the penalty for a body corporate under the WHS
Act (although the penalty under the OPGGS regime is still higher than under the WHS Act).
Specifically, the OPGGS regime contains offences for recklessness and negligence when a
person, subject to a health and safety requirement, omits to do an act and breaches the
requirement. As outlined above, the penalty for recklessness of an individual is 3,500 penalty
units and negligence 1,750 penalty units (equating to $735,000 and $367,500 respectively).
For a body corporate these equate to $3,675,000 for recklessness and $1,837,500 for
negligence. The current model WHS laws and WHS Act have lower penalties than the
OPGGS regime. For example, for a health and safety offence committed with a fault element
of recklessness (Category 1), the maximum penalty is $300,000 or 5 years imprisonment or
both for an individual and $3,000,000 for a body corporate. Under the Victorian Occupational
211
Safe Work Australia, 2018, Review of the model WHS laws, Recommendations 22, 23b and 25.
212
Senate Inquiry into the WHS of workers in the offshore petroleum industry, 2018, Recommendation
9
Health and Safety Act 2004, the maximum penalty is 1800 penalty units ($285,426) for an
individual and 9000 penalty units ($1,427,130) for a body corporate.213
The strict liability offences under the WHS regime (of which there are two categories) are
also lower than the OPGGS regime penalties for either recklessness or negligence, at
$150,000 for an individual and $1,500,000 for a body corporate (Category 2) and $50,000
for an individual and $500,000 for a body corporate (Category 3).
In the Senate Committee report on the framework surrounding the prevention, investigation
and prosecution of industrial death in Australia, the Committee recommended that Safe
Work Australia work with Commonwealth, state and territory governments to review the
levels of monetary penalties in the model WHS legislation, with consideration as to whether
there should be increased penalties for larger businesses or repeat offenders. In its
response, the Government supported this recommendation in principle, highlighting its
potential benefit whilst noting the practical difficulties involved in design and implementation.
It was noted that the monetary penalties in the model WHS laws have not increased since
introduction.214 As noted above, the Safe Work Australia Review of the Model WHS Laws
recommended increasing penalty levels.215
What are your views on the penalty provisions under the current OPGGS regime?
Do the provisions provide effective incentive to comply with the regime? What
evidence can you provide to support your comments?
Notification and reporting

The OPGGS Act and Safety Regulations impose a number of notification and reporting
requirements on duty holders in relation to health and safety incident and risk management.
The operator is primarily responsible for notification and reporting, however there are
requirements in the regulations that apply to titleholders and diving supervisors. The
notification and reporting requirements are outlined below:
 general provisions in the OPGGS Act216 impose a duty on operators to give notice to
NOPSEMA if, at or near a facility, there is:
- an accident217 that causes the death of, or serious injury to, any individual
- an accident that causes a member of the workforce to be incapacitated from
performing work
213
Occupational Health and Safety Act 2004 (Vic), 1800 penalty units for a person and 9000 penalty
units for a body corporate
214
Senate Inquiry into the framework surrounding the prevention, investigation and prosecution of
industrial deaths in Australia 2018, Government Response,
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Education_and_Employment/
IndustrialdeathsinAus
215
Safe Work Australia, 2018, Review of the model WHS laws, Recommendation 22
216
217
In a general sense, the term ‘accident’ may be an unforeseeable and unexpected turn of events
that causes loss in value, injury and increased liabilities. Under Schedule 3 of the OPGGS Act, an
accident includes the contraction of a disease.
- a dangerous occurrence218
 the operator must provide oral or written notification to NOPSEMA of an accident or
dangerous occurrence as soon as practicable after the first occurrence of the
accident or dangerous occurrence, or at the time it has been detected219
 the operator must provide a written report to NOPSEMA of an accident or dangerous
occurrence within 3 days (unless otherwise agreed by NOPSEMA) after the first
occurrence or its detection220
- the written report must contain material details about the accident or
dangerous occurrence in line with the NOPSEMA determination.221
 the operator must provide a monthly written report not later than 15 days after the
end of each month summarising the number of deaths and types of injuries to
persons at the facility222
 the titleholder must notify the operator and NOPSEMA as soon as practicable if it
knows about a new risk or increased risk to health and safety223
 a diving supervisor must report to the operator (if there is an operator for the diving
project) incidents including: the death of, or serious injury to, a person; the
incapacitation of a person; and an event that could have led to these incidents.224

Duties and obligations
Under the Safety Regulations there are some inconsistencies in the duties and obligations
imposed on parties in relation to notification and reporting. These inconsistencies may
contribute to non-reporting by relevant duty holders and affect the effectiveness and
accuracy of information provided to NOPSEMA.
For example, diving supervisors are required to report health and safety matters to the
operator and only if there is an operator for the diving project. There is currently no
requirement for diving supervisors to notify titleholders and NOPSEMA in the event there is
no operator for that diving project, creating a gap in reporting requirements.
Additionally, while the titleholder is required to report a new health and safety risk related to
the facility to both the operator and NOPSEMA, there is no current requirement for an
operator to do so as well. The operator of a facility may more practicably identify such risks
than the titleholder. While operators have a requirement to submit a revised safety case if
there has been a significant increase, or series of increases, of risk, it may be more timely if
the operator also reported new health and safety risks to NOPSEMA and the titleholder.
218
A ‘dangerous occurrence’ is an occurrence, at a facility, that is specified in the table at Regulation
2.41(2) of the Safety Regulations.
219
OPGGS Safety Regulations 2009, Chapter 2, Part 4, Regulation 2.42(1)
220
221
OPGGS Safety Regulations 2009, Chapter 2, Part 4, Regulations 2.42(2)(c) and 2.42(3)
222
223
224
OPGGS Safety Regulations 2009, Chapter 4, Part 6, Regulation 4.23(1)(c)
Monthly reports
Notification and reporting obligations should be placed on duty holders where a clear
regulatory benefit is demonstrated. Where possible, duplicative reporting requirements
should be avoided to reduce confusion and increase the effectiveness of reporting
requirements.
For example, the current requirements for a monthly report to NOPSEMA under regulation
2.42(4) of the Safety Regulations, require the operator to provide a summary of the number
of deaths of persons and number and types of injuries at the facility.225 The intent of this
requirement may duplicate the reporting requirement of accidents and dangerous
occurrences under regulation 2.42(2), which requires the operator to provide a written report
within 3 days unless otherwise agreed by NOPSEMA.
Further, the requirement to provide monthly reports under the Safety Regulations applies
regardless of whether there have been any deaths or serious injuries at the facility. This
appears to be inconsistent with the intent of the general provision to notify accidents and
dangerous occurrences under the OPGGS Act, which outlines that the duty to notify is in
situations if there is an accident or dangerous occurrence. The provision of reports by the
operator of a facility with zero activity (nil response) does not provide a regulatory benefit.
There may be benefit, however, if the monthly reports required reporting on different health
and safety issues, such as non-notifiable leading indicators of safety performance, process
safety indicators and data on person-hours worked.
Do you consider the current notification and reporting requirements for both duty
holders and other entities under the OPGGS regime to be effective? If not, how could
they be improved?
225
Part 7: Jurisdictional coverage
Introduction
The regulation of the OHS of workers engaged in offshore petroleum or greenhouse gas
storage activities is primarily provided for by the OPGGS Act and Safety Regulations.
However, different pieces of OHS legislation may apply as workers move through their
duties, and for those persons working in an offshore maritime environment but not directly
involved in offshore oil and gas industry activities. The broad range of activities related to the
offshore oil and gas industry includes, but is not limited to, onshore office work, operating
offshore support vessels, work aboard offshore facilities and offshore diving operations.
The Australian offshore oil and gas safety regime operates alongside the maritime industry
safety regime and the various onshore OHS regimes, to protect workers engaged in the
entire range of activities they may undertake for offshore oil and gas companies. The
legislative frameworks of the offshore oil and gas industry and maritime industry sit closely
together, and there are multiple points at which persons and vessels may transition to and
from each jurisdiction. It is therefore of utmost importance that the governments, industries,
regulators and workers involved have a clear understanding and consistent interpretation of
the legislation and how, where and when it applies.
This part describes jurisdictional coverage of the offshore resources and maritime industries
in relation to the regulation of health and safety and describes the interactions between the
regimes.
Overview of offshore petroleum and greenhouse gas

jurisdiction
Offshore Petroleum and Greenhouse Gas Storage Act 2006
The OPGGS regime provides for the health and safety regulation of persons at or near an
offshore facility within Commonwealth waters. The jurisdictional coverage of the regime is
defined through the OPGGS Act, and is intended to capture the execution of, and
preparation for, all offshore petroleum and greenhouse gas storage activities, excluding
those which take place in coastal waters. The boundaries of the regime are set through
geographical boundaries and the definitions of offshore petroleum operations and
greenhouse gas storage operations.
As defined by the OPGGS Act, Commonwealth waters comprise the offshore area of each
state and of each territory226 that, with some exceptions, begins at the outer limits of coastal
waters and extends to the outer limits of the continental shelf.227
226
227
Petroleum exploration and development in coastal waters is regulated under the relevant
state or Northern Territory legislation, except where a jurisdiction has conferred powers or
functions on to NOPSEMA.228 To date, Victoria is the only state or territory jurisdiction to
have conferred OHS powers and functions to NOPSEMA.
Key terminology relating to NOPSEMA’s OHS jurisdiction under the OPGGS Act includes
the definition of offshore petroleum operations, greenhouse gas operations, facilities and
associated offshore places. An awareness of these terms is important to understand the
jurisdictional remit of the OPGGS Act, and NOPSEMA’s health and safety functions.
As described in Part 6: Compliance and enforcement, the OPGGS Act grants NOPSEMA
health and safety functions in relation to offshore petroleum operations and offshore
greenhouse gas storage operations, and to secure compliance by persons with their OHS
obligations under the OPGGS Act and Safety Regulations.
Offshore petroleum operations regulated by NOPSEMA are defined to mean any regulated
operations, including diving operations, that take place in Commonwealth waters or at a
facility and relate to the exploration for, recovery, processing, storage, offloading or piped
conveyance of petroleum.229
Similarly, offshore greenhouse gas storage operations regulated by NOPSEMA are defined
to mean any regulated operations, including diving operations, that take place in
Commonwealth waters or at a facility and relate to the exploration for potential greenhouse
gas storage formations or injection sites, the compression, processing, offloading, piped
conveyance or pre-injection storage of a greenhouse gas substance, or the injection,
permanent storage or monitoring of a greenhouse gas substance into the seabed or
subsoil.230
The term facility includes vessels or structures, as well as associated offshore places in
relation to a facility that is located in Commonwealth waters and is being used or prepared
for use in:
 offshore petroleum operations such as:

- the recovery, processing, storage and offloading of petroleum
- the provision of accommodation for persons working on another facility
- the drilling or servicing of a well
- the laying of pipes for petroleum or doing work on an existing pipe
- the erection, dismantling or decommissioning of a facility.
 or greenhouse gas operations such as:
- the injection or storage of a greenhouse gas substance into the seabed or
subsoil
- the compression, processing, pre-injection storage, offloading of a
greenhouse gas substance
228
229
230
- the monitoring of a greenhouse gas substance stored in the seabed or subsoil
- the provision of accommodation for persons working on another facility
- drilling or servicing a well for injecting a greenhouse gas substance into the
seabed or subsoil
- laying pipes for conveying a greenhouse gas substance or for doing work on
an existing pipe
- the erection, dismantling or decommissioning of a facility.231
Some vessels or structures are not considered facilities under the OPGGS Act. Excluded
vessels and structures that are not facilities include off-take tankers, tugs or anchor handling
vessels, vessels used for supplying facilities or for travelling between a facility and the shore,
and any vessel or structure declared by the Safety Regulations not to be a facility, such as a
vessel supporting a remotely-operated vehicle or diving operation that is being used in
connection with inspection, cleaning or the recovering of debris.232
The definition of associated offshore places includes any offshore place near a facility where
activities (including diving activities) relating to the construction, installation, operation,
maintenance or decommissioning of the facility take place. This excludes another facility, a
supply vessel, offtake tanker, anchor handler or tugboat, and any vessel or structure that is
declared by the regulations not to be an associated offshore place.233
Safety zones
Under the OPGGS Act, safety zones are used to prohibit vessels from entering a specified
area, and are established for the purpose of protecting a petroleum well, greenhouse gas
well, a structure, or equipment.234 The prohibition may apply to all vessels, specified vessels,
or all vessels other than specified classes of included vessels. Safety zones are established
by the publication of a notice in the Gazette (by NOPSEMA for petroleum safety zones and
by the responsible Commonwealth Minister for greenhouse gas safety zones), and may
extend to a distance of 500 metres around the well, structure or equipment specified in the
notice. Safety zones do not delineate the scope or extent of NOPSEMA’s jurisdiction in
relation to regulating OHS under the OPGGS Act and Regulations.

Terminology
The scope of the OPGGS Act and Safety Regulations is clearly and narrowly defined in
order to appropriately capture offshore petroleum and greenhouse gas operations, the
persons that undertake these operations and the facilities where these operations take
place.
231
232
OPGGS Act 2006, Schedule 3, Part 1, Clause 4(6) and OPGGS Safety Regulations 2009, Chapter
1, Regulation 1.6
233
OPGGS Act 2006, Schedule 3, Part 1, Clause 3 and OPGGS Safety Regulations 2009, Chapter 1,
Regulation 1.7
234
OPGGS Act 2006, Chapter 6, Part 6.6, Division 2, Section 616 and Division 3, Section 617
This review of the offshore regulatory regime for safety provides an opportunity to review the
key terminology of the OPGGS legislation and ensure it accurately captures those persons
and operations. As an example, the department is aware that the way the current definition
of vessels and structures that are not facilities is drafted under the Safety Regulations235 has
unintended consequences. Under the OPGGS Act, a vessel or structure is not a facility or
associated offshore place if it is used for any purpose declared by the Safety Regulations
not to be a facility or associated offshore place. This automatic exclusion from being
classified as a facility or associated offshore place does not take into account those vessels
or structures that are also being used for operations that would otherwise mean it is included
under the definition of a facility.
Do you think the current definitions of key terminology such as facility, offshore
associated place, offshore petroleum operations, offshore greenhouse gas storage
operations and other definitions are fit for purpose? Are any amendments or
clarifications needed?
Overview of maritime industry jurisdiction

Occupational Health and Safety (Maritime Industry) Act 1993
The Occupational Health and Safety (Maritime Industry) Act 1993 (OHS(MI) Act) provides
specific health and safety regulation for a small section of the maritime industry known as
the ‘Seacare scheme’. The OHS(MI) Act was based on the repealed Occupational Health
and Safety Act 1991 (the Commonwealth’s previous principal WHS Act). The Attorney-
General’s Department is responsible for administering the OHS(MI) Act.
Consistent with objects under the OPGGS Act, the OHS(MI) Act seeks to: secure the health,
safety and welfare of maritime industry employees at work and to protect at or near those
workplaces from OHS risks arising from the employees’ activities; ensure expert OHS advice
is available; promote an occupational environment adapted to the OHS needs of seafarers;
and foster a cooperative consultative relationship between operators and employees.236
Application of the OHS(MI) Act

The OHS(MI) Act provides specific health and safety regulation for the defined section of the
maritime industry, specifically those persons employed on a prescribed ship or prescribed
unit that falls in the application provision of the OHS(MI) Act. Prescribed ships or prescribed
units are engaged in trade or commerce:
 between Australia and places outside Australia

 between two places outside Australia
 between the States
 within a Territory, between a State and a Territory or between two Territories.237
235
OPGGS Safety Regulations, Chapter 1, Regulation 1.6 and 1.7
236
OHS(MI) Act 1993, Part 1, Division 2, Section 3
237
The OHS(MI) Act relies on Part II of the repealed Navigation Act 1912 (Cth) to define the
term ‘prescribed ship’. This has led to some ambiguity in the interpretation of the exact
coverage of the scheme. A ship is a ‘prescribed ship’ for the purpose of the OHS(MI) Act if it
is:
 a ship which is registered in Australia

 a ship that is used to engage in coastal trading
 a ship of which the majority of the crew are residents of Australia and which is
operated by: either a person who is resident of, or has his/her principal place of
business, in Australia; a firm that has its principal place of business in Australia; or a
company that is incorporated, or has its principal place of business, in Australia.238
The OHS(MI) Act makes explicit reference to a ‘prescribed ship’ not being a ship or offshore
industry mobile unit to which the OPGGS Act applies.239
The OHS(MI) Act also applies to a vessel that is an offshore industry vessel or an offshore
industry mobile unit within the meaning of the Navigation Act 1912.240 The OHS(MI) Act has
separate provisions for a ‘prescribed unit’ which in general terms is an offshore industry
mobile unit that is not self-propelled, but is under tow. An offshore industry mobile unit that is
self-propelled falls within the ‘prescribed ship’ definition. As an offshore industry mobile unit
under tow is not a facility,241 the OPGGS Act will not apply to displace the OHS(MI) Act WHS
provisions for a ‘prescribed unit’.
The OHS(MI) Act was enacted with reference to the coverage of the Navigation Act 1912.
After a significant review of that Act, the Navigation Act 2012 (Navigation Act) was enacted
to reform the 1912 Act. The 2012 Act has very different coverage provisions to the 1912 Act.
At the time the Navigation Act was reformed, the provisions in the 1912 Act were
grandfathered to ensure that the class of seafarers covered by the OHS(MI) Act WHS
regime (and the related workers’ compensation legislation covered by the Seacare
scheme242) were not disadvantaged.
Maritime industry employees in the states and territories who are not covered by the
OHS(MI) Act operate under the principal WHS Acts that apply to all businesses within the
relevant state or territory.
Seacare Authority and Inspectorate

The Seafarers Safety, Rehabilitation and Compensation Authority (Seacare Authority)
oversees the national scheme of OHS, rehabilitation and workers’ compensation
arrangements that apply to seafaring employees and other appropriate third parties that fall
within the coverage of the Seacare scheme. The Seacare Authority’s 2017-18 Annual Report
noted there were 5140 employees covered by the Seafarers Rehabilitation and
238
Navigation Act 1912, Part 2, Division 1, Section 10
239
240
Navigation Act 1912, Part 1, Section 8
241
OPGGS Act 2006, Schedule 3, Part 1, Clause 4(7)(b)
242
Seafarers Rehabilitation and Compensation Act 1992
Compensation Act 1992, working on 168 vessels, of which 97 vessels were in the offshore
industry.243
Under the OHS(MI) Act, AMSA is the Inspectorate for the purposes of ensuring compliance
with the obligations imposed by the Act,244 and the CEO of AMSA is also a member of the
Seacare Authority. As the OHS inspectorate, AMSA regulates seafarer health and safety
issues on prescribed ships that fall within the application provision of the OHS(MI) Act.
AMSA has trained inspectors who perform a range of functions, including audits,
investigations of accidents and dangerous occurrences, issue of improvement and
prohibition notices, advising employers on their duty of care as well as providing advice on
health and safety matters. AMSA has the authority to initiate prosecutions for serious
breaches which can result in heavy penalties.245
Harmonisation of health and safety laws in the maritime industry

In 2012, the Australian Government commissioned an independent Review of the Seacare
scheme and the laws supporting that scheme (the Seacare Review).246 The Seacare Review
made a number of recommendations to clarify the jurisdictional coverage of the Seacare
scheme and rectify legislative inconsistencies to ensure consistency with the model WHS
laws.
Following further analysis and consultation with industry and employee representatives, the
Government determined that retaining industry specific health and safety laws for a small
section of the maritime industry was unnecessary.
The Seafarers and Other Legislation Amendment Bill 2016 was introduced to Parliament in
2016 and contains measures that would repeal the OHS(MI) Act and extend the
Commonwealth WHS Act to vessels presently covered by the OHS(MI) Act, with some
industry specific modifications. This includes retaining the ability to implement regulations to
address industry specific requirements. On 11 April 2019, the Australian Parliament was
dissolved ahead of the 2019 federal election and the bill lapsed.
The Navigation Act 2012

The Navigation Act is the primary legislative Act by which the Australian Government
regulates maritime safety, seafarers and the prevention of pollution of the marine
environment. The Department of Infrastructure, Transport, Cities and Regional Development
is responsible for administering the Navigation Act.
243
Seafarers Safety, Rehabilitation and Compensation Authority Annual Report 2017-18,
http://www.seacare.gov.au/__data/assets/pdf_file/0006/191670/Seacare_Annual_Report_2017-18.pdf
244
OHS(MI) Act 1993, Part 4
245
AMSA, https://www.amsa.gov.au/vessels-operators/seafarer-safety/occupational-health-and-safety-
inspectorate
246
Review of the Seacare scheme, March 2013, https://www.jobs.gov.au/seafarers-rehabilitation-and-
compensation-act-review
The objects of the Navigation Act are to promote the safety of life at sea and safe navigation;
prevention of pollution of the marine environment; and ensure AMSA has the necessary
power to carry out inspections of vessels and enforce national and international standards.247
AMSA, established as a statutory authority under the Australian Maritime Safety Authority
Act 1990 (Cth), is Australia’s national agency responsible for maritime safety, protection of
the marine environment and maritime aviation search and rescue.
Marine Orders made under the Navigation Act facilitate AMSA’s implementation of
regulatory matters.248 Two Marine Orders are directly related to the offshore oil and gas
industry:
 Marine Order 47 (Mobile offshore drilling units) 2012249 - provides information about
requirements for the design, construction, machinery and equipment of a mobile
offshore drilling unit (MODU) and safe navigation and operation of a MODU
 Marine Order 60 (Floating offshore facilities) 2001250 - provides information about the
safe operation and navigation of floating production, storage and offtake facilities
(FPSOs), and floating storage units (FSUs). It also looks at those facilities and units
with regard to the certification and survey requirements, certificates of compliance
and safe manning.

Disapplication of the Navigation Act
The disapplication of the Navigation Act in relation to vessels defined as facilities, persons at
or near a facility, and activities taking place at facilities under the OPGGS Act means these
facilities are not subject to International Maritime Organisation and International Labour
Organisation Conventions given effect by the Navigation Act. As discussed above, this is
intended to ensure that an overlap between the offshore resources and maritime regulatory
regimes does not occur. This issue was discussed extensively in the 2009 report of Bills and
Agostini,251 as noted by submissions to the Senate Inquiry.
While stakeholders have not raised specific concerns about the disapplication of IMO
requirements, the department is aware that the disapplication of the Navigation Act can
present regulatory challenges in relation to vessel facilities disconnecting from and re-
entering the maritime regime. Marine Orders 47 and 60 require mobile offshore drilling units
and floating offshore facilities to maintain safety certification under the International
Convention for the Safety of Life at Sea (SOLAS). This Navigation Act requirement is
disapplied, and replaced with the safety requirements under the OPGGS Act and Safety
247
Navigation Act 2012, Chapter 1, Part 2, Section 3
248
AMSA, Regulations and standards https://www.amsa.gov.au/about/regulations-and-standards
249
AMSA, Marine order 47—Mobile offshore drilling units https://www.amsa.gov.au/about/regulations-
and-standards/marine-order-47-mobile-offshore-drilling-units
250
AMSA, Marine order 60—Floating offshore facilities https://www.amsa.gov.au/about/regulations-
and-standards-vessels/marine-order-60-floating-offshore-facilities
251
K. Bills and D. Agostini, Offshore Petroleum Safety Regulation: Marine Issues, June 2009,
https://archive.industry.gov.au/resource/Documents/upstream-petroleum/safety/Marine
%20Issues_web.pdf
Regulations. While some operators maintain SOLAS certification voluntarily while defined as
a facility, AMSA has limited knowledge of the condition of vessels which do not maintain
certification while within the OPGGS jurisdiction, when they re-enter the maritime industry
jurisdiction.
Does the disapplication of the Navigation Act under the OPGGS Act, and the
international conventions it implements, affect offshore safety outcomes? Please
provide evidence to support your views.
Interaction between the OPGGS Act, Navigation Act and OHS(MI)

Act
Under the OPGGS Act, the Navigation Act and the OHS(MI) Act do not apply in relation to
facilities, persons at or near a facility and activities taking place at that facility.252 This
includes vessels used for the purpose of undertaking offshore petroleum operations. The
disapplication of Commonwealth maritime legislation ensures that the health and safety
regime under the OPGGS Act and its regulations is administered without overlap with the
maritime industry safety regime.
When vessel facilities move between the offshore resources and maritime industry regimes,
the requirements under the originating jurisdiction cease and the other respective jurisdiction
begins to apply. For example, when a vessel facility moves to undertake repairs, it ceases to
be a facility under the OPGGS Act and becomes an offshore industry vessel or offshore
industry mobile unit under the OHS(MI) Act for the purpose of regulating health and safety of
its seafarers.
Due to the transition between jurisdictions, safety requirements vary under the OPGGS Act,
OHS(MI) Act and Navigation Act, and therefore the applicable requirements for a particular
vessel can change as it moves between each Act’s jurisdictions. For example under the
maritime industry regime, Marine Orders 47 and 60 require that MODUs, FPSOs and FSUs
obtain appropriate safety certification, in order to adhere to SOLAS. Once a vessel
transitions to become a facility, and enters the offshore oil and gas jurisdiction, this
certification is no longer required under the OPGGS Act, in line with the disapplication of the
Navigation Act.
Given the touch points between the offshore resources and maritime industry regimes, it is
important for the respective regulators, NOPSEMA and AMSA, to work collaboratively where
needed. In 2009, AMSA and NOPSA established a Memorandum of Understanding (MOU)
to guide cooperation and mutual assistance between the agencies. This was replaced by a
new MOU signed on 29 March 2019, which sets out the following three objectives:253
 the effective cooperation of parties in the improvement in OHS and environmental

management outcomes in the offshore petroleum sector
252
OPGGS Act 2006, Chapter 6, Part 6.8, Section 640
253
MOU between AMSA and NOPSEMA concerning Cooperation on safety and environmental
management arrangements for the offshore petroleum sector, March 2019,
https://www.nopsema.gov.au/assets/Corporate/A667383.pdf
 duplication of activities is avoided as far as reasonably possible in respect of facilities
and vessels over which the parties have regulatory obligations
 that industry operations comply with relevant maritime and offshore legislation and
regulations.
NOPSEMA and AMSA currently engage through the work program and committee meetings
of the National Plan for Maritime Environmental Emergencies, and through ongoing
collaboration on common issues of relevance. For example:
 the NOPSEMA CEO is a member of the AMSA Advisory Committee meeting that
convenes twice a year
 NOPSEMA contributes resources to the National Response Team (NRT) and
participates in the National Plan Strategic Coordination Committee and other
governance arrangements related to the National Plan, including strategic issue
working groups
 NOPSEMA personnel participate in AMSA Marine Pollution Controller Workshops
and competency based oil spill training
 NOPSEMA and AMSA meet regularly to discuss common operational matters related
to current industry activity in the field

Legislative coverage
While the Senate Inquiry terms of reference directly referred to ‘the scope and necessity for
amending and updating any legislative inconsistencies in the relevant work health and safety
scheme’, it focused on providing for appropriate consistency between the OPGGS Act and
the WHS Act, rather than the OHS regime in the OHS(MI) Act, where AMSA is the regulator,
and on legislative changes to provide consistency with the model WHS Act. However,
witnesses raised concerns about perceived gaps between the jurisdiction of NOPSEMA and
AMSA relating to OHS, with the view that there is the need for clarification of, or consensus
on, the touchpoints between the offshore resources and maritime regimes. These concerns
were primarily in relation to vessels and vessel facilities that move between NOPSEMA’s
jurisdiction and AMSA’s jurisdiction, depending on the location and the activity being carried
out at the time. The Senate Committee concurred with witnesses’ concerns and
subsequently recommended that the Commonwealth Government conduct a comprehensive
assessment of the coverage of Australian safety regulation, including offshore petroleum, in
order to develop a coherent legislative reform package.254
With regard to legislative coverage, hearings of the Senate Inquiry discussed deaths aboard
a floating storage and offloading tanker in 2008 and an offshore supply vessel in 2015.
In respect of the death of a worker on the Karratha Spirit in 2008, the consensus of
regulatory authorities was that, in accordance with the OPGGS Act, the Karratha Spirit was
under NOPSA’s jurisdiction and NOPSA took responsibility for investigating the matter. The
254
Recommendation 12
Australian Transport Safety Bureau (ATSB) report expressed the view that the point at which
vessel facilities became navigable255 and cease to be facilities under the OPGGS Act was
not clearly defined, leaving it open to interpretation.256
In relation to the death of a worker on board the Skandi Pacific supply vessel in 2015,
NOPSEMA provided information to the Senate Committee confirming that at no time prior to,
during or following the incident was the safety of the workforce on board the Skandi Pacific
subject to regulation by NOPSEMA.257 This is consistent with the definitions outlined earlier
in Part 7, specifically excluding supply vessels from the definition of a facility or an offshore
associated place.
Are there any issues relating to the jurisdictional coverage and interaction of the
OPGGS Act, Navigation Act and OHS(MI) Act that require clarification?
If so, is the issue one of legislative coverage or could it be addressed through

communication and engagement between stakeholders?
Collaboration with other occupational health and safety regulators and

agencies
NOPSEMA’s collaboration and working relationships with other WHS regulators and bodies
was highlighted in the Terms of Reference to the Senate Inquiry, with specific mention of
Safe Work Australia.258
Safe Work Australia leads the development of national policy and strategies to improve WHS
and workers’ compensation across Australia, and assists with the implementation of the
model WHS laws it developed in 2011. In its submission to the Senate Inquiry, Safe Work
Australia stated that it and NOPSEMA meet from time to time to discuss WHS issues
including data collection and availability.259 NOPSEMA also stated in its submission that it
provides data to Safe Work Australia on various matters related to the OHS performance of
the offshore industry, which is incorporated in safety publications produced by Safe Work
Australia.260
255
OPGGA Act, Schedule 3, Part 1, Clause 4(7)
256
Independent investigation into the fatality on board the Australian registered floating storage and
offloading tanker Karratha Spirit off Dampier, Western Australia, 24 December 2008, ATSB Transport
Safety Report, Marine Occurrence Investigation No 261, MO-2008-013,
https://www.atsb.gov.au/publications/investigation_reports/2008/mair/261-mo-2008-013/
257
Senate Inquiry into the WHS of Workers in the Offshore Petroleum Industry, Additional information
provided by NOPSEMA, 27 June 2018
WHSinoffshorepetroleum/Additional_Documents
258
APH, Senate Standing Committee on Education and Employment, Terms of Reference,
WHSinoffshorepetroleum/Terms_of_Reference
259
Submission to the inquiry into the WHS of workers in the offshore petroleum industry, Safe Work
Australia,
WHSinoffshorepetroleum/Submissions
260
Submission to the inquiry into the WHS of workers in the offshore petroleum industry, NOPSEMA,
WHSinoffshorepetroleum/Submissions
Some stakeholders expressed concern that possible opportunities are being missed by
NOPSEMA to draw on the experience and work of Safe Work Australia, and recommended
that legislative amendments be enacted to require quarterly or six monthly meetings
between NOPSEMA and Safe Work Australia.
The Senate Inquiry report made no recommendations in relation to Safe Work Australia, and
the Government Senators’ dissenting report noted that during its testimony Safe Work
Australia indicated that it has not identified issues associated with the OPGGS Act through
the implementation of their program.
Would increased collaboration between NOPSEMA and other OHS regulators,

including Safe Work Australia, improve safety outcomes?
What evidence can you provide to support this?
How should this collaboration be undertaken and what mechanisms are required to
facilitate and support it?
Collaboration with AMSA

During the Senate Inquiry, witnesses asserted that NOPSEMA’s effectiveness as a health
and safety regulator is hampered by the split between NOPSEMA and AMSA’s jurisdictions.
The Committee recommended that NOPSEMA and AMSA should update their MOU, with a
particular focus on achieving clarity on the common areas and interactions between the two
agencies and their legislation.261
This issue was also identified through the 2015 Operational Review of NOPSEMA, which
recommended that NOPSEMA and AMSA should refresh their MOU and, in doing so,
provide clarification on their commitments and responsibilities under their respective Acts.
The Government Response to the Operational Review262 supported the agencies

establishing a documented process for collaboration and consultation, whether through the
means of a MOU or an exchange of letters, to ensure a shared contemporary understanding
of each party’s regulatory remit and approach.
In information submitted to the Senate Inquiry, NOPSEMA stated that it maintains a strong
and collegiate relationship with AMSA on a range of matters including the regulation of
offshore safety. This relationship includes a number of ongoing bilateral activities, standing
meetings and national plan arrangements and the strength of the joint agency relationship is
independent of the MOU.263
261
Recommendation 13
262
Australian Government Response to the 2015 Operational Review of NOPSEMA, December 2015,
https://archive.industry.gov.au/resource/UpstreamPetroleum/Documents/
GovernmentResponse2015OperationalReviewNOPSEMA.pdf
263
NOPSEMA, additional information received 27 June 2018,
WHSinoffshorepetroleum/Additional_Documents
NOPSEMA and AMSA entered into a new MOU in March 2019, which provides for them to
share information, participate in relevant training conducted by the other party, and
cooperate and consult in relation to investigations, prosecutions, assessments, the
preparation of guidelines and educational material, research, and data analysis.
Stakeholders have expressed support for the reinstatement of joint inspection of vessels’
certification, provided for in previous versions of the MOU, as a way of strengthening the
collaborative relationship and ensuring regulatory coverage.
Can you suggest any mechanisms (regulatory or non-regulatory) to further enhance

collaboration between AMSA and NOPSEMA?

Summary of questions
Thank you for taking the time to consider this discussion paper. Below is a summary of the
questions posed throughout the paper, but the department also encourages you to raise any
other issues you find relevant, and does not expect all submissions to cover all the topics
raised.
Part 3: Objects, safety cases and diving safety management

systems
What are your views on the current objects in the OPGGS Act and Safety Regulations as
they relate to OHS? Do you have suggestions for changes to the objects, or how they are
defined?
Do you think the objects in the OPGGS Act should include specific reference to the role of
unions and employer organisations, or is the current requirement to foster a consultative
relationship with all relevant persons sufficient? Why/why not?
What are your views on the current regulatory approach to design and installation of a
facility, including the process for early engagement with the regulator?
Should early engagement with the regulator be voluntary or mandatory? Why?
What are your views on the current OPGGS provisions relating to how and when safety case
revisions occur?
What are your views on the ability of a HSR to trigger a review of a safety management-
related document, including a safety case?
What are your views on the current requirements for a DSMS and DPP, including the
content requirements, approval and training and certification processes?
What are your views on the consultation requirements for a DSMS and DPP?
Do you think the OPGGS regime requirement for offshore divers to hold an ADAS
qualification leads to optimal safety outcomes?
Should the offshore regulatory regime for safety impose additional requirements or
recognise other qualifications? Why/why not?

Do you think the OHS duties of care under the OPGGS regime are clear and effective? If
not, what do you think could be improved?
What are your views on the effectiveness of the OPGGS permit to work system? If you
believe there are deficiencies, what are they and how should they be addressed?
What are the benefits and challenges of implementing a licencing system for high risk work,
similar to that under the WHS Act and WHS Regulations, in the offshore oil and gas
industry?
What are your views on the training of offshore oil and gas participants more broadly? Do
you think current provisions under the OPGGS regime adequately provide for training of all
participants?
Do you think the current provisions in the OPGGS Act effectively promote and support
positive mental wellbeing workplaces in the offshore oil and gas industry?
Can you suggest strategies or measures to further promote and support positive mental
wellbeing workplaces in the offshore oil and gas industry?
Part 5: Workplace arrangements

What are your views on the current selection and election requirements of HSRs under the
OPGGS regime? Why?
Do you think the current requirements sufficiently provide for workers to autonomously
determine the manner in which they elect a HSR? If no, why not, and how do you think the
election process should be determined?
What are your views on the disqualification process of a HSR under the OPGGS regime?
Why?
Do you think the current provisions under the OPGGS regime on the powers and protections
for HSRs are effective?
What evidence can you provide to support your views?
Are there any other powers of and protections for HSRs that should be provided for? If so,
what are they and why do you think they are needed?
Are there any other operator duties and obligations to HSRs that should be provided for? If
so, what are they and why do you think they are needed?
What are your views on aligning the HSR training provisions under the OPGGS Act with the
WHS Act?
What would be the benefits or risks of increased alignment of HSR training provisions with
the WHS Act?

What are your views on whether additional types of learning opportunities should be
considered as ‘appropriate training’ for HSRs under the OPGGS regime?
Is there a need to specify in the legislation that a HSR is guaranteed a place on the HSC if
they consent? Why/why not?
Do you think the current legislative provisions for engagement between HSRs and
NOPSEMA are effective?
Do you think proposed amendments to the provisions regarding HSR lists, and mandating
that HSRs accompany and meet with NOPSEMA inspectors (as outlined above), would
improve engagement?
Can you suggest further strategies (legislative or non-legislative) to improve engagement

between NOPSEMA and HSRs?
What are your views on the current consultation provisions provided under the OPGGS
regime?
Which consultation provisions are working well?
Which consultation provisions could be further improved?
Would you support the introduction of a right of entry provision for the offshore petroleum
industry, similar to that of the WHS Act? Would this provision lead to improved safety
outcomes for the workforce?
What are your views on the current provisions for information sharing?
Do you think there is a need for increased transparency in relation to the regulation of health
and safety? If so, what specific changes do you think should be made?
What are your views on the current provisions for workforce participation in governance
arrangements?
Do you think the OPGGS Act should be amended to require representation of the workforce
on the NOPSEMA Board?
What are your views on the effectiveness of the provisions relating to the protection of
workers who are involved in or raise workplace health and safety issues, or who take on a
representative role and raise health and safety issues? Do you have any suggestions for
improvements?
Do you think the current provisions for issue resolution of health and safety issues, such as
the use of HSRs, HSCs and other consultative mechanisms, are effective? If not, what
changes do you suggest?
Part 6: Compliance and enforcement

What are your views on the provisions for inspector powers and inspection process under
the OPGGS regime?

Do you think that unannounced inspections are necessary on offshore facilities, and if so,
why?
What are your views on how compliance is monitored at vessel facilities?
Should the regime provide for any additional or different requirements for compliance
monitoring?
Can you suggest ways (both regulatory and non-regulatory) in which monitoring compliance
at vessel facilities could be enhanced?
What are your views on the current enforcement provisions under the OPGGS regime?
Do you think they provide sufficient and effective mechanisms and options to be utilised by
the regulator? If not, how could they be improved?
What are your views on the penalty provisions under the current OPGGS regime?
Do the provisions provide effective incentive to comply with the regime? What evidence can
you provide to support your comments?
Do you consider the current notification and reporting requirements for both duty holders and
other entities under the OPGGS regime to be effective? If not, how could they be improved?
Part 7: Jurisdictional coverage

Do you think the current definitions of key terminology such as facility, offshore associated
place, offshore petroleum operations, offshore greenhouse gas storage operations and other
definitions are fit for purpose? Are any amendments or clarifications needed?
Does the disapplication of the Navigation Act under the OPGGS Act, and the international
conventions it implements, affect offshore safety outcomes? Please provide evidence to
support your views.
Are there any issues relating to the jurisdictional coverage and interaction of the OPGGS
Act, Navigation Act and OHS(MI) Act that require clarification?
If so, is the issue one of legislative coverage or could it be addressed through

communication and engagement between stakeholders?
Would increased collaboration between NOPSEMA and other OHS regulators, including
Safe Work Australia, improve safety outcomes?
What evidence can you provide to support this?
How should this collaboration be undertaken and what mechanisms are required to facilitate
and support it?
Can you suggest any mechanisms (regulatory or non-regulatory) to further enhance

collaboration between AMSA and NOPSEMA?

Appendix A: Terms of reference
Review of the Occupational Health and Safety Regime for Workers
involved in Offshore Petroleum Operations in Commonwealth
Waters
Terms of Reference
Purpose:
To review the Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009
and the associated parts of the Offshore Petroleum and Greenhouse Gas Storage Act 2006
to ensure that they:
i. provide an effective framework for securing the occupational health and safety of
persons engaged in offshore petroleum or greenhouse gas storage operations in
Commonwealth waters of Australia, and
ii. represent leading practice that promotes and delivers safe offshore petroleum and
greenhouse gas storage activities.
The review will be evidence-based and propose policy changes and legislative amendments,
where necessary, to improve the OHS regime. Some areas may be identified that require
further analysis following the review.
Background:
The Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act) provides the
legal framework for the exploration and recovery of petroleum and for the injection and
storage of greenhouse gas substances in Commonwealth waters. This Act is administered
by the Commonwealth Government, with some decisions made jointly with the state and
Northern Territory governments. The National Offshore Petroleum Safety and Environmental
Management Authority (NOPSEMA) is responsible for the administration of occupational
health and safety, environmental management and well integrity provisions.
Section 781 of the OPGGS Act provides that the Governor-General may make regulations
prescribing matters that are required or permitted by the OPGGS Act, or necessary or
convenient to be prescribed for carrying out or giving effect to the OPGGS Act. Clause 17 of
Schedule 3 to the OPGGS Act provides that regulations may make provision relating to any
matter affecting, or likely to affect, the occupational health and safety of persons at a facility.
Regulations have been in place for the safety of persons in connection with petroleum
operations in Commonwealth waters since 1993, when they were created under the
Petroleum (Submerged Lands) Act 1967 (PSLA). The regulations were administered by the
Designated Authorities in each state and the Northern Territory until 2005, when regulatory
responsibility was transferred to the National Offshore Petroleum Safety Authority (now
NOPSEMA). Continuing changes to implement various reforms have resulted in the current

Offshore Petroleum and Greenhouse Gas Storage (Safety) Regulations 2009 (the Safety
Regulations).
The current Safety Regulations have been in operation since 1 January 2010 and are due to
sunset on 1 April 2020. Given they will need to be remade before this date, it is an opportune
time to undertake a holistic review of their efficiency and effectiveness, ensure consistency
with leading practice, check the justifications for the current Safety Regulations, and, where
necessary, propose changes to improve their operation. While some minor and technical
amendments have been made to clarify and improve the Safety Regulations, a
comprehensive review has not been undertaken since its commencement.
Objectives: The review will be conducted in line with requirements of Australian

Government policy and guidance on regulation, including the Australian Government Guide
to Regulation 2014 and other relevant references.
The review of the operation of the Safety Regulations and Schedule 3 to the OPGGS Act will
specifically consider:
1. The extent to which the offshore OHS regime is securing the health and safety of
persons engaged in offshore petroleum operations and driving continuous
improvement in safety performance.
2. The effectiveness of the Safety Case provisions as a mechanism for achieving health
and safety performance at offshore facilities.
3. The effectiveness of the Diving Safety Management Systems and Diving Project
Plans for achieving safety performance in diving operations.
4. The appropriateness of definitions of facilities, vessels and structures, and
associated offshore places for the purpose of ensuring occupational health and
safety for persons working in the offshore resources industry.
5. The effectiveness of the framework of duties in protecting the health and safety of
workers in the offshore oil and gas industry.
6. The appropriateness and effectiveness of provisions for workplace arrangements.
7. The transparency of current arrangements, including provision of information to the
workforce.
8. The effectiveness of routine and non-routine notification and reporting arrangements.
9. The effectiveness of compliance and enforcement mechanisms for improving OHS
performance.
10. Alignment of terminology throughout the offshore regulatory regime for safety and
related legislation.
11. Any other changes that may be necessary to ensure the OHS regime reflects current
Australian Government policy and guidance on best practice regulation.
12. Any other matter raised during the process considered relevant.
Scope:
The review will consider regulation of OHS within the scope of:
 The Safety Regulations

 Schedule 3 (Occupational Health and Safety) to the OPGGS Act.
 Any other matters under the OPGGS Act which are incidental to the above items, but
necessary for a comprehensive review of the safety regime.
Since 2013, a number of OHS-related amendments have been proposed and consulted on
with stakeholders, which are yet to be presented as bills to Parliament or amended
regulations to the Executive Council. While those items will be included within the review, it
is anticipated that previous consultation on these matters should assist their timely
finalisation as part of this review.
The review will, in general, not address:
 other regulations under the OPGGS Act including environment, well integrity or
resource management and administration
 policy regarding cost recovery through levies
 changes to other legislation or regulations beyond the scope of the OPGGS Act
 decisions by states or the Northern Territory on the conferral of functions to
NOPSEMA.
Relevant matters arising from other inquiries and reviews will be considered as appropriate.
Timing and Process:
The policy review is expected to be completed in 2019. Any proposed amendments will be
subject to parliamentary and Federal Executive Council processes applying to legislative and
regulatory change. The Safety Regulations are currently due to sunset in 2020 and must be
reviewed before they can be remade to ensure they are fit-for-purpose, up-to-date and
leading practice. This review will inform the remaking of the Safety Regulations.
The following arrangements will be adopted to progress the formulation of proposed

amendments:
Organisation: The review will be managed by the Commonwealth Department of Industry,

Innovation and Science (DIIS), with technical input from NOPSEMA. Inputs
from other relevant government departments will be sought where
appropriate.
Consultation: A Safety Stakeholder Group (SSG) will be established to ensure a broad

range of perspectives and views are considered and taken into account when
considering issues and policy options. This will allow a robust examination to
take place with consideration for all parties affected by any changes. The
SSG will serve as a consultation group, not a decision-making body, to allow
ideas and issues to be tested and discussed prior to a final policy position
being reached.
The SSG will meet at key points during the review project, and the group’s
input will inform the development of consultation papers. Targeted meetings
with specific stakeholder groups will also be held to complement the SSG.
People from the same stakeholder representative type will be able to meet
with the project team to discuss issues directly relevant to their group and the
project, and in greater detail.
Publication: Information relating to the review will be published on the DIIS website. Any
amendments to the OPGGS Act and Safety Regulations will be approved and
published in accordance with the Australian Government parliamentary
process on the Federal Register of Legislation at www.legislation.gov.au.

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Offshore Safety Review:

Offshore Safety Review industry.gov.au 1

The safety review................................................................................................................ 6

The review process.............................................................................................................7

Safety Stakeholder Group...................................................................................................7

How to contribute your views..............................................................................................8

Part 2: Background to the safety review............................................................................9

Overview of the offshore oil and gas safety regime.............................................................9

Role of the Government and the department..................................................................9

History of Australia’s offshore oil and gas safety regime.................................................9

Work health and safety harmonisation..............................................................................10

WHS harmonisation and offshore safety.......................................................................11

Australia’s offshore safety regime principles.....................................................................12

Leading practice regulatory framework..........................................................................13

Independent and accountable regulator........................................................................13

Australia’s offshore safety performance............................................................................14

International and domestic comparison.........................................................................15

Part 3: Objects, safety cases and diving safety management systems.........................20

Objects in relation to occupational health and safety........................................................20

Issues for discussion.....................................................................................................21

Development of safety cases........................................................................................23

Submission and acceptance of safety cases.................................................................25

Revision of safety cases................................................................................................26

Offshore Safety Review industry.gov.au 2

Diving safety management system (DSMS)......................................................................28

Diving project plan (DPP)..............................................................................................29

Diving start-up notice.....................................................................................................31

Part 4: Duties, training, competency and mental health.................................................33

Duties in relation to occupational health and safety.......................................................33

Reasonably practicable and ALARP.............................................................................34

Training and competency of offshore workers..................................................................36

Permit to work system...................................................................................................36

Training and competency..............................................................................................37

Mental health of offshore workers.....................................................................................39

Issues for discussion.....................................................................................................40

Part 5: Workplace arrangements.......................................................................................42

Health and safety representatives.....................................................................................42

Selection and election of health and safety representatives..........................................42

Powers of and protections for health and safety representatives..................................44

Provisional improvement notices and direction to stop unsafe work..............................45

Training for health and safety representatives..................................................................47

Issues for discussion.....................................................................................................48

Health and safety committees...........................................................................................49

Issues for discussion.....................................................................................................50

Health and safety representatives’ engagement with NOPSEMA.....................................50

Health and safety representative lists............................................................................51

Offshore Safety Review industry.gov.au 3

Consultation with workers.............................................................................................53

Right of entry for health and safety matters...................................................................55

Information sharing and transparency...........................................................................57

Participation in governance arrangements and forums.................................................59

Protection against discrimination or coercion................................................................61

Part 6: Compliance and enforcement...............................................................................63

NOPSEMA’s OHS functions.............................................................................................63

Compliance and enforcement framework..........................................................................64

Notification and reporting..............................................................................................73

Part 7: Jurisdictional coverage.........................................................................................76

Overview of offshore petroleum and greenhouse gas jurisdiction.....................................76

Offshore Petroleum and Greenhouse Gas Storage Act 2006........................................76