The patchwork approach to the regulation of fraccing and unconventional gas in Australia

Abstract

With hydraulic fracturing, shale gas, tight gas and coal seam gas continuing to be a target for environmental and landholder groups, and an issue politicians of all stripes continue to grapple with (in both cases, often without understanding the nuances of what those various terms mean), the legal framework under which they are regulated is changing rapidly.

From the moratoriums in Victoria and Tasmania through to the more open regimes operating in Queensland, SA, WA and the NT, the regulatory responses have varied wildly across Australia. This has resulted in investment outcomes being focused in those states and territories where the regulatory framework for unconventional gas is more welcoming. There are also regimes undergoing development as this paper was being written, as is presently occurring in the NT with the release of the Onshore Oil and Gas Guiding Principles, the pause and reset that is occurring in NSW with the implementation of the NSW Gas Plan, and the recent WA and anticipated SA responses to recent parliamentary inquiries.

This paper provides a comparative analysis of where the legal frameworks in the various states and territories presently stand on some of the key issues for unconventionals, and considers likely future developments in those legal frameworks. Regarding future developments, the paper covers both the short-term outlook based on announced inquiries, policies and processes, and whether there is hope in the medium to longer term—with some political will, the assistance of further scientific inquiries and a longer period of practical experience with unconventional gas operations Australia—of the convergence towards a more consistent regulatory approach across Australia.