Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021 [2021] AUSStaCSBSD 114 (16 June 2021)

• Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021
• Fees in delegated legislation94

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Offshore Petroleum and Greenhouse Gas Storage Amendment (Titles Administration and Other Measures) Bill 2021

Purpose	This bill seeks to amend the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the OPGGS Act) to provide for increased government oversight and scrutiny of entities throughout the life of an offshore project, from exploration through to development and eventual decommissioning
Portfolio	Resources
Introduced	House of Representatives on 26 May 2021

Fees in delegated legislation^[94]

1.128 Item 1 of Schedule 1 to the bill seeks to insert several provisions into the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (the Act) which would provide for fee-making powers within delegated legislation.

1.129 Proposed section 566ZD provides that the Titles Administrator must ensure that all instruments, or copies of instruments, that may be subject to inspection under proposed Chapter 5A are open for inspection by any person on payment of a fee calculated under the regulations.

1.130 Proposed subsection 566ZE(1) provides that the Titles Administrator may provide a copy of or extract from an instrument lodged under Chapter 5A upon payment of a fee calculated under the regulations. Proposed subsection 566ZE(3) provides that the Titles Administrator may, upon payment of a fee calculated under the regulations, issue an evidentiary certificate.

1.131 The committee has consistent scrutiny concerns regarding provisions which allow fees to be calculated under delegated legislation where the face of the bill contains no cap on the maximum fee amount or any information or guidance as to how a fee will be calculated. In this instance the explanatory memorandum provides some guidance in relation to how the fee will be calculated. For example, in relation to proposed section 566ZD the explanatory memorandum states:

The applicable fee (if any) will only serve to enable the Titles Administrator, as a fully cost-recovered entity, to recover the costs that it will incur in relation to enabling public access to the relevant instrument.^[95]

1.132 The committee considers that this kind of guidance should also be included on the face of the bill and that, at a minimum, the bill should include a provision stating that the fee must not be such as to amount to taxation. In this regard, the committee notes the advice set out at paragraph 24 of the Office of Parliamentary Counsel Drafting Direction No. 3.1.^[96] While there is no legal need to include such a provision, the committee considers that it is nonetheless important to include to avoid confusion and to emphasise the point that the amount calculated under the regulations will be a fee and not a tax. In addition, as set out in the Drafting Direction, such a provision is useful as it may warn administrators that there is some limit on the level and type of fee which may be imposed.

1.133 The committee also notes that proposed subsection 566M(2), along with existing subsections 256(3) and 427(4) of the Act, state that the relevant fee must not be such as to amount to taxation. It is unclear to the committee why the fee-making powers at proposed section 566ZD and proposed subsections 566ZE(1) and (3) do not include similar guidance.

1.134 In light of the above, the committee requests the minister's advice as to whether the bill can be amended to provide at least high-level guidance regarding how the fees under proposed section 566ZD and proposed subsections 566ZE(1) and (3) will be calculated, including, at a minimum, a provision stating that the fees must not be such as to amount to taxation.

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[94] Schedule 1, item 1, proposed section 566ZD and proposed subsections 566ZE(1) and (3). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

[95] Explanatory memorandum, p. 43. The Explanatory memorandum provides similar explanations for proposed subsections 566ZE(1) and (3) at p. 44.

[96] Office of Parliamentary Counsel, Drafting Direction No. 3.1 Constitutional law issues, September 2020, para 24.