The Queensland Government has introduced the Gas Fields Commission Bill 2012 into the Queensland Parliament.
The Bill will formalise the workings of Gas Field Commissioners appointed sometime ago on an informal basis.
Essential aspects of the Bill include:
- establishment of the Gas Fields Commission;
- identifying functions and powers of the Commission.
Once passed, the Act will establish the Commission. It is to be constituted by a full-time Commissioner (the chairperson) and up to six part-time Commissioners. Commissioners will be appointed under the Gas Field Commission Act 2012 and not under the Public Service Act 2008.
Commissioners must include:
- a Commissioner who represents the interests of landholders; and
- a Commissioner who represents the interests of communities in which the on-shore gas industry operates; and
- a Commissioner who represents the on-shore gas industry.
On-shore gas industry means a business that carries out exploration or production of petroleum or carries out transportation of petroleum using a pipeline, within the meaning of the Petroleum and Gas (Production and Safety) Act 2004.
To be eligible for appointment a Commissioner must have qualifications or experience in any of the following:
- the on-shore gas industry;
- a branch of science relating to exploration or production of petroleum or impact of those activities on the environment;
- legal practice relevant to the exploration or production of petroleum;
- negotiations between landholders and the on-shore gas industry;
- land management;
- land valuation;
- community development;
- the financial and business sector.
Commissioners will be appointed for a term not longer than three years.
The Commissioners must meet at least six times a year. The purposes of Commission board meetings will be to:
- ensure the Commission performs its functions and exercises its powers in an appropriate and effective way; and
- set strategic priorities for the Commission; and
- develop plans to address key issues being considered by the Commission.
The Commission must establish the Gas Fields Community Leaders Council for the purpose of assisting the Commission to identify issues affecting the co-existence of landholders, regional communities and the on-shore gas industry in Queensland.
The chairperson of the Commission will preside at meetings of the Community Leaders Council which must consist of individuals the chairperson is satisfied represent local governments, regional communities and the on-shore gas industry.
A government entity that is developing policy or legislation intended to affect the on-shore gas industry must consult with the Commission about the proposed policy or legislation (section 23). However this provision is directory only and does not create rights or impose legally enforceable obligations on the State, a government entity or anyone else.
The Commission must appoint a general manager who must prepare and give to the Minister an annual report.
The report must include:
- details of the functions performed by the Commission during the year;
- financial statements for the Commission for the year;
- a description of the prosecutions, if any, undertaken by the Commission during the year; and
- information about how efficiently and effectively the Commission has carried out its operations, including identifying key achievements and financial and non-financial performance.
The report must not be prepared in a way that discloses confidential information.
The reference to “prosecutions” in the annual report is really a reference to prosecutions the Commission may undertake with respect to non-compliance with the Act. It is not indicative of a broader enforcement function. The Commission does not have such functions.
Powers and functions of the Commission
Generally the Commission has the powers necessary or convenient to perform its functions. It also has the specific powers given to it under the Act.
The Commission’s functions include:
- facilitating better relationships between landholders, regional communities and the on-shore gas industry;
- reviewing the effectiveness of government entities in implementing regulatory frameworks that relate to the industry;
- advising Ministers and government entities about the ability of landholders, regional communities and the on-shore gas industry to co-exist within an identified area;
- making recommendations to the relevant Minister that the regulatory framework and legislation relating to the industry be reviewed or amended;
- making recommendations to the Minister and industry about leading practice or management relating to the industry;
- advising the Minister and government entities about matters relating to the industry;
- convening landholders, regional communities and the industry for the purpose of resolving issues;
- obtaining particular information from government entities and prescribed entities;
- obtaining advice about the on-shore gas industry or functions of the Commission from government entities;
- publishing educational materials about the industry;
- partnering with other entities for the purpose of conducting research related to the industry;
- convening advisory bodies to assist the Commission in performing its functions.
From the above it will be seen that the Commission’s functions are primarily advisory and facilitative. It has no specific enforcement or regulatory function as such.
Its “issues resolution” function will no doubt develop over time but there is no guidance in the Bill about how this function will be implemented.
Its role in advising government on the adequacy or shortcomings of legislation and the effectiveness of regulatory agencies might prove to be a two-edged sword.
The Bill recognises that performance of the Commission’s functions requires access to information. Consequently the Bill contains a number of provisions enabling the Commission to access information from government entities and prescribed entities.
Prescribed entities are:
- a landholder; or
- an on-shore gas operator; or
- a company engaged under a written agreement to carry out work, on behalf of an on-shore gas operator, that relates to the exploration or production of petroleum.
It is clear that (3) above would include contractors and other service providers.
Specific information gathering powers
The Commission may give a government entity a written notice requesting information in the entity’s possession or control that relates to the industry or a function of the Commission.
The government entity must comply with the request unless:
- the information is not in its possession or control; or
- complying with the request would place the entity in contravention of a law; or
- the request relates to someone else’s confidential information and the other person has refused to consent to it being disclosed to the Commissioner despite the entity’s reasonable efforts to obtain the consent.
The Commission may also require the chief executive of a government entity to provide advice to the chairperson if the advice:
- relates to a function of the Commission; and
- relates to a function of the government entity; and
- is something about which the chief executive could reasonably be able to provide advice.
The chief executive must comply with the request unless complying with it would place the chief executive in contravention of a law, or the requirement relates to someone else’s confidential information and that person has refused to consent to it being disclosed to the Commissioner, despite the government entity’s reasonable efforts to obtain the consent.
Power to require information from prescribed entities
The Chairperson may, by written notice, require a prescribed entity to give the Chairperson stated documents or information, or stated types of documents or information (relevant material) in its possession or control that the Commission reasonably requires for the effective and efficient carrying out of its functions.
An entity given notice to produce documents or information must comply unless:
- the requirement relates to material in someone else’s possession or control and that other person has refused to give up the relevant material to the entity that has received the notice despite the entity’s reasonable efforts to obtain it; or
- complying with the requirement would place the entity in contravention of a law; or
- the requirement relates to someone else’s confidential information and the other person has refused to consent to it being disclosed to the Commission despite the entity’s reasonable efforts to obtain the consent; or
- the giving of the relevant material might tend to incriminate the entity; or
- the relevant material is confidential to the entity or the giving of the relevant material might be to the detriment of the entity’s commercial or other interests.
It is an offence (100 penalty units) to fail to comply with a notice under this section (s24).
It is also an offence under the Act to provide information to the Chairperson that is false or misleading in a material particular (100 penalty units).
Under the Act the Commissioners, the General Manager and the staff of the Commission will not be subject to direction in the performance of their duties by any person, other than from within the Commission.
They will be protected from incurring civil liability for an act done or omission made, honestly and without negligence.
Where the Commission or its staff receive confidential information they are prohibited from directly or indirectly disclosing that information unless that is done in the performance of a function under the Act or with the consent of the person to whom the information relates.
It will be important to ensure that appropriate representations are made to the Commission on a regular basis in relation to matters of concern to the industry. This will assist the Commission in advising Ministers and government entities and in making recommendation to the Minister about regulatory frameworks and the administration of those frameworks.
In relation to the information collection powers of the Commission, an on-shore gas operator should be mindful of confidential information, and the protection of such information, that might be required at some point by the Commission.