Offshore Electricity Infrastructure Bill 2021 [2021] AUSStaCSBSD 216 (21 October 2021)

• Offshore Electricity Infrastructure Bill 2021
• Reversal of the evidential burden of proof29
• Reverse legal burden of proof34
• Evidentiary certificates36
• Strict liability offences40
• Exemption from disallowance44
• Instruments not subject to parliamentary disallowance51
• Significant matters in delegated legislation—licensing scheme57
• Fees in delegated legislation60
• Power for delegated legislation to modify the operation of primary legislation (akin to Henry VIII clause)—regulations for pre-existing infrastructure64
• Tabling of documents in Parliament66
• Limitation on merits review68

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Offshore Electricity Infrastructure Bill 2021

Purpose	This bill seeks to establish a regulatory framework to enable the construction, installation, commissioning, operation, maintenance, and decommissioning of offshore electricity infrastructure in the Commonwealth offshore area.
Portfolio	Industry, Science, Energy and Resources
Introduced	House of Representatives on 2 September 2021

Reversal of the evidential burden of proof^[29]

1.46 The bill seeks to establish several defences which reverse the evidential burden of proof. Clause 15 makes it an offence to carry out certain activities in relation to infrastructure that is within a Commonwealth offshore area, including constructing or operating infrastructure. Subclause 15(2) provides that it is a defence if the conduct is authorised by a licence or the Act.

1.47 Clauses 95 and 96 provide offences in relation to the change in control of a licence holder. Clause 95 provides that it is an offence if there has been a change in control and the Registrar has not approved the change. Clause 96 provides that it is an offence if the Registrar has not been notified of a change. Subclauses 95(4) and 96(4) provide that it is a defence if the person did not know, and could not have reasonably been expected to know, that a change in control had occurred.

1.48 Clause 116 provides that it is an offence of strict liability if a licence holder does not maintain structures, equipment and property contained within their licence area in good condition. Subclause 116(3) provides that it is a defence if the structure, equipment or property was not brought into the licence area by authority of the licence holder.

1.49 Clause 148 provides that it is an offence to engage in prohibited activities within a protected zone. However, clause 149 provides a defence if the conduct was necessary to save a life or vessel, prevent pollution, or if all reasonable steps had been taken to avoid engaging in the conduct.

1.50 Clause 203 provides that it is an offence if a person obstructs or hinders an Offshore Electricity Infrastructure (OEI) inspector who is exercising powers under Part 2 or 3 of the Regulatory Powers (Standard Provisions) Act 2014. It is a defence under subclause 203(4) if the person has a reasonable excuse for the offending conduct.

1.51 Clause 211 provides that is an offence of strict liability if a person tampers with a notice that is displayed in accordance with subclauses 206(2), 208(3) or 209(8). It is a defence under subclause 211(4) if the person has a reasonable excuse for the offending conduct.

1.52 The defendant bears an evidential burden of proof in relation to all of the defences listed above. At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence.^[30] This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interfere with this common law right.

1.53 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified. There is no explanation within the explanatory memorandum for reversing the evidential burden of proof in relation to the defences set out in subclauses 95(4), 96(4), 116(3), clause 149, subclause 203(4) or subclause 211(4). In relation to subclause 15(2) the explanatory memorandum states:

The reason for placing this burden of proof on the defendant is because it is peculiarly within the knowledge of the defendant, ie. the defendant is in a position to confirm whether or not a licence or other authorisation has been obtained prior to the relevant regulated activity.^[31]

1.54 The committee notes that the Guide to Framing Commonwealth Offences provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[32]

1.55 In the case of the defence set out at subclause 15(2), it is not apparent that the relevant matters would be peculiarly within the defendant's knowledge. For example, whether specific conduct is authorised by a licence would appear to be knowledge available to the Regulator. In addition, the explanatory memorandum has not explained whether, or why, it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matters set out in the defence.

1.56 Additionally, the committee notes that the Guide to Framing Commonwealth Offences states that:

An offence-specific defence of 'reasonable excuse' should not be applied to an offence, unless it is not possible to rely on the general defences in the Criminal Code or to design more specific defences.^[33]

1.57 The committee notes that no explanation has been provided in the explanatory memorandum regarding why an offence-specific defence of 'reasonable excuse' has been used in subclauses 203(4) and 211(4).

1.58 The committee requests the minister's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in subclauses 15(2), 95(4), 96(4), and 116(3), clause 149, and subclauses 203(4) and 211(4).

1.59 The committee also requests the minister's advice as to why it is appropriate to use a defence of reasonable excuse in subclauses 203(4) and 211(4), including why it is not possible to rely upon more specific defences.

1.60 The committee's consideration of the appropriateness of a provision which reverses the burden of proof or includes a reasonable excuse defence is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.

Reverse legal burden of proof^[34]

1.61 The bill seeks to reverse the legal burden of proof in relation to two defences. The bill establishes a number of offences for breaching directions given by the Regulator or the minister under Part 2 of Chapter 4 of the bill. Clause 133 of the bill provides that it is a defence to these offences if the person proves that they took all reasonable steps to comply with the direction. A legal burden of proof is proposed to be placed on the defendant in relation to this defence. As a result, to rely on the defence the defendant would need to positively prove, on the balance of probabilities, that they had taken reasonable steps to comply.

1.62 Similarly, subclauses 139(1), (3), (5) and (7) provide that it is an offence for the owner or master of a vessel to breach a determination made under subclause 136(2). Subclause 139(8) provides that it is a defence to these offences if an unforeseen emergency rendered it necessary to breach the determination, or if the vessel was not under the control of the person at the time the determination was breached. A defendant bears the legal burden of proof in relation to this defence. As a result, to rely on the defence the defendant would need to positively prove, on the balance of probabilities, one of the matters set out in subclause 139(8).

1.63 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove one or more elements of an offence, interfere with this common law right. As the reversal of the burden of proof undermines the right to be presumed innocent until proven guilty, the committee expects there to be a full justification each time the burden is reversed, with the rights of people affected being the paramount consideration.

1.64 The explanatory memorandum does not provide any justification for reversing the legal burden of proof in relation to the defence set out under clause 133 of the bill. In relation to subclause 139(8) the explanatory memorandum states:

The reason that there is a burden placed on the defendant in this matter is because the prosecution would not be in a position to know if there is an unforeseen emergency which has caused the person to need to enter the safety zone – i.e. either to secure the safety of a vessel or to preserve human life.^[35]

1.65 It is not clear to the committee from this explanation why it is necessary to reverse the legal burden of proof. The committee considers that the legal burden of proof should only be reversed in exceptional circumstances. In this case, the explanatory memorandum has not provided any explanation as to the circumstances that are said to justify a reversal of the legal burden of proof.

1.66 The committee's concerns are heightened in this instance given that the legal burden of proof is reversed in relation to a number of strict liability offences. In addition, the committee is concerned given the significant penalties, including significant imprisonment terms, that may apply under several of the offences.

1.67 As the explanatory materials do not adequately address this issue, the committee requests the minister's advice as to why it is proposed to reverse the legal burden of proof in subclauses 133(1) and 139(8) and why it is not sufficient to reverse the evidential, rather than legal, burden of proof.

1.68 The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.

Evidentiary certificates^[36]

1.69 Subclause 112(3) provides that the Registrar may issue a written certificate stating that an entry, matter or thing that is required or permitted to be made or done under Part 3 of Chapter 3 of the bill has, or has not, been made or done. Subclause 112(4) provides that a certificate produced under subclause 112(3) is prima facie evidence of the statements contained within it.

1.70 Certificates that constitute prima facie evidence of the matters contained within them are known as evidentiary certificates. The committee notes that where an evidentiary certificate is issued, this allows evidence to be admitted into court which would need to be rebutted by the other party to the proceeding. While a person still retains the right to rebut or dispute those facts, that person assumes the burden of adducing evidence to do so. The use of evidentiary certificates therefore effectively reverses the evidential burden of proof, and may, if used in criminal proceedings, interfere with the common law right to be presumed innocent until proven guilty. Consequently, the committee expects a detailed justification for any proposed powers to use evidentiary certificates to be included in the explanatory materials. In this instance, the explanatory memorandum states:

Evidentiary certificates promote efficiency by removing delays arising from obtaining evidence with more traditional methods, freeing up the court’s time to consider the more serious issues related to the offence. The use of an evidentiary certificate for a ‘formal’ matter may include, for example, that an application made for the approval of a change in control of a licence holder has been made, including the date on which it was lodged with the Registrar.^[37]

1.71 While acknowledging this explanation, the committee notes that the Guide to Framing Commonwealth Offences states, in relation to criminal proceedings, that evidentiary certificates:

... are generally only suitable where they relate to formal or technical matters that are not likely to be in dispute or would be difficult to prove under the normal evidential rules.^[38]

1.72 The Guide to Framing Commonwealth Offences further provides that evidentiary certificates 'may be appropriate in limited circumstances where they cover technical matters sufficiently removed from the main facts at issue'.^[39]

1.73 In this instance, it appears that the matters that may be included in a certificate given in accordance with subclause 112(4) may encompass a wide range of technical and non-technical issues relating to the change in control of a licence holder. Consequently, it is not clear to the committee whether a certificate would cover only formal or technical matters sufficiently removed from the relevant proceedings such as might make its use appropriate.

1.74 The committee draws its scrutiny concerns to the attention of senators, and leaves to the Senate as a whole the appropriateness of providing that a certificate provided in accordance with subclause 112(3) is prima facie evidence of the matters specified in the certificate.

Strict liability offences^[40]

1.75 The bill seeks to establish several strict liability offences, including in relation to actions that are not authorised by licence, actions that interfere with the activities of a licence holder, tampering with notices issued by the Regulator, breaching a direction given by the Regulator or the minister, or breaching a determination in relation to a safety zone or a protection zone. Each of these strict liability offences is subject to varying penalty levels. The following strict liability offences are subject to a maximum penalty of 100 penalty units:

• subclause 77(2);

• subclause 78(2);

• subclause 116(4);

• subclause 123(3);

• subclause 128(3); and

• subclause 267(2).

1.76 In addition, subclause 139(7) provides that it is an offence of strict liability for the owner or master of a vessel to breach a determination made under subclause 136(2). The maximum penalty for the offence is imprisonment for 5 years.

1.77 Under general principles of the criminal law, fault is required to be proved before a person can be found guilty of a criminal offence (ensuring that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have). When a bill states that an offence is one of strict liability, this removes the requirement for the prosecution to prove the defendant's fault. In such cases, an offence will be made out if it can be proven that the defendant engaged in certain conduct, without the prosecution having to prove that the defendant intended this, or was reckless or negligent. As the imposition of strict liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of strict liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[41]

1.78 In this instance, the statement of compatibility states:

The strict liability offences in this Bill are considered reasonable, necessary, and proportionate to the objective of ensuring the safety of the offshore workforce, the protection of OEI and the integrity of the licensing scheme. This will strengthen the regulatory functions under the Bill in the Commonwealth offshore area. The offences that carry strict liability are intended to compel reasonable compliance with requirements in relation to activities that are regulated under the Bill that would otherwise be intrinsically or potentially unsafe unless high standards of compliance are met. The removal of the requirement to prove fault in the relevant circumstances aims to provide a strong deterrent. They are consistent with other contemporary robust regulatory regimes such as the Offshore Petroleum and Greenhouse Gas Storage Act 2006 and do not unreasonably or impermissibly limit the presumption of innocence. The offences are designed to ensure offshore infrastructure activities are carried out in a safe and responsible manner. The offences are also consistent with the guidance set out in A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers.^[42]

1.79 In addition, the explanatory memorandum states in relation to subclause 139(7):

This penalty is relatively high for a strict liability offence. However, this is in the context of the seriousness of the breach and also the much higher penalties that would apply where there is a fault element attached.^[43]

1.80 It is not clear to the committee from this explanation why these offences are consistent with the guidance set out in the Guide to Framing Commonwealth Offences in circumstances where the penalty for each of the offences listed above is higher than the recommended threshold of 60 penalty units. The committee is particularly concerned in relation to the inclusion of a significant custodial penalty for the strict liability offence in subclause 139(7).

1.81 Moreover, while acknowledging that the offences are intended to encourage compliance with the offshore infrastructure scheme, it is not clear to the committee from the explanation provided why it is necessary to provide for offences of strict liability to achieve this outcome.

1.82 In light of the above, the committee requests a detailed justification from the minister as to why it is proposed to apply strict liability to the offence set out at subclause 139(7), with reference to the principles set out in the Guide to Framing Commonwealth Offences.

1.83 In relation to the strict liability offences at subclauses 77(2), 78(2), 116(4), 123(3), 128(3), and 267(2), the committee draws these offences to the attention of senators and leaves to the Senate as a whole the appropriateness of including them in the bill, noting that a penalty above what is recommended in the Guide to Framing Commonwealth Offences applies to the proposed offences.

Exemption from disallowance^[44]

1.84 Clause 182 of the bill provides that the minister may, by legislative instrument, give written directions to the Regulator about the performance of its functions under the bill. A note to clause 182 clarifies that a direction under clause 182 is not subject to disallowance due to the operation of regulations made under the Legislation Act 2003.

1.85 The committee expects that any exemption of delegated legislation from the usual disallowance process should be fully justified in the explanatory memorandum. The fact that a certain matter has previously been within executive control or continues current arrangements does not, of itself, provide an adequate justification.

1.86 In this instance, the explanatory memorandum states that:

Directions of this nature are ordinarily exempt from these requirements, by the operation of the Legislation Act and the Legislation (Exemptions and Other Matters) Regulation 2015. They are administrative in character as they do not determine the law or alter the content of the law; rather they determine how the law does or does not apply in particular cases or circumstances. In addition, they are intended to remain in force until revoked by the Minister.^[45]

1.87 At a general level, the committee does not consider the fact that an instrument will fall within one of the classes of exemption in the Legislation (Exemptions and Other Matters) Regulation 2015 is, of itself, a sufficient justification for excluding parliamentary disallowance.^[46] The committee agrees with the comments of the Senate Standing Committee for the Scrutiny of Delegated Legislation that 'any exclusion from parliamentary oversight... requires that the grounds for exclusion be justified in individual cases, not merely stated'.^[47]

1.88 The committee therefore expects that the explanatory memorandum to a bill that authorises the making of a legislative instrument that is exempt from disallowance should specify why the exemption is appropriate in the particular circumstances.

1.89 This issue has been highlighted recently in the committee's review of the Biosecurity Act 2015,^[48] the inquiry of the Senate Standing Committee for the Scrutiny of Delegated Legislation into the exemption of delegated legislation from parliamentary oversight,^[49] and a resolution of the Senate on 16 June 2021 emphasising that delegated legislation should be subject to disallowance and sunsetting to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances.^[50]

1.90 The committee therefore requests the minister's more detailed advice regarding:

• why it is considered necessary and appropriate to provide that directions made under clause 182 are not subject to disallowance; and

• whether the bill could be amended to provide that these directions are subject to disallowance to ensure that they are subject to appropriate parliamentary oversight.

Instruments not subject to parliamentary disallowance^[51]

1.91 Clause 136 provides that the Regulator may, by notifiable instrument, determine that a specified area surrounding eligible safety zone infrastructure is a safety zone. Eligible safety zone infrastructure includes renewable energy infrastructure, electricity transmission infrastructure and seabed cables. A safety zone determination has the effect of prohibiting vessels from entering, or being present, within a zone without the written consent of the Regulator.

1.92 The committee notes that notifiable instruments will not be subject to the tabling, disallowance or sunsetting requirements that typically apply to legislative instruments. As such there is no parliamentary scrutiny of the determinations issued under clause 136. Given the impact on parliamentary scrutiny, the committee expects the explanatory materials to include a justification for why the determinations issued under clause 136 are not legislative in character. In this instance, the explanatory memorandum notes:

The establishment of a safety zone is to be done by notifiable instrument. The reason for this is that the parameters for the creation of a safety zone are clearly set out in the Bill, which satisfies the requirement for it to be created as a notifiable instrument. The determination is not legislative in character, and as such, need not be made subject to Parliamentary scrutiny or sunsetting.
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In addition, it is important for the Regulator to be able to declare a safety zone and do so quickly such that the safety of people can be protected by prohibiting vessels from entering a particular area in an emergency. A notifiable instrument enables the process to be swiftly implemented without a lengthier process requiring legislative scrutiny or being subject to disallowance.^[52]

1.93 While noting this explanation, the committee has not generally accepted a desire for administrative flexibility to be a sufficient justification for providing that an instrument will not be a legislative instrument. In addition, it is not clear to the committee why a determination made under clause 136 is not of a legislative character in circumstances in which it appears that these instruments may determine or alter the content of the law. For example, the committee notes that vessels may be prohibited from entering a safety zone under subclause 137(3). In this regard, the committee notes that a protection zone determination made under clause 142 of the bill is a legislative instrument. It is unclear to the committee why determinations made under clause 142, which may impose similar obligations, are specified as legislative instruments while determinations made under clause 137 are specified as notifiable instruments.

1.94 Furthermore, the committee notes that legislative instruments can commence immediately after they registered on the Federal Register of Legislation. It is therefore unclear why providing that determinations made under clause 136 are legislative instruments would prevent the Regulation from acting quickly if necessary.

1.95 As noted above, this issue has been highlighted recently including in the committee's review of the Biosecurity Act 2015,^[53] the inquiry of the Standing Committee for the Scrutiny of Delegated Legislation into the exemption of delegated legislation from parliamentary oversight,^[54] and a resolution of the Senate on 16 June 2021 emphasising that delegated legislation should be subject to disallowance and sunsetting to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances.^[55] Moreover, in this case, the committee's concerns are heightened given that elements of strict liability offences may be included within a safety zone determination, and because these offences may carry significant penalties, including imprisonment.^[56]

1.96 The committee therefore requests the minister's more detailed advice regarding:

• why it is considered necessary and appropriate that determinations made under proposed clause 136 are not legislative instruments; and

• whether the bill could be amended to provide that these determinations are legislative instruments to ensure that they are subject to appropriate parliamentary oversight.

Significant matters in delegated legislation—licensing scheme^[57]

1.97 Clause 29 of the bill provides that the regulations must prescribe a licensing scheme relating to, among other things, applications for licenses, changes in control of licence holders, the prescription of fees or levies, and management plans for licences. A management plan includes offshore infrastructure activities that are to be carried out under a licence and that have been approved by the Regulator.^[58] Licensing schemes may cover feasibility licences, commercial licences, research and demonstration licences, and transmission and infrastructure licences.

1.98 The committee's view is that significant matters, such as the details of a licensing scheme, should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. In this instance, the explanatory memorandum contains no justification regarding why it is necessary to allow such significant matters to be set out in delegated legislation.

1.99 The committee notes that a legislative instrument, made by the executive, is not subject to the full range of parliamentary scrutiny inherent in bringing proposed changes in the form of an amending bill. In this case the committee's scrutiny concerns are heightened given the significance of the licensing scheme to the administration of the offshore electricity infrastructure scheme. For example, the committee notes that some elements of provisions carrying significant penalties may be set out within the licensing scheme.^[59]

1.100 In light of the above, the committee requests the minister's detailed advice as to:

• why it is considered necessary and appropriate to leave the details of the licensing scheme to delegated legislation; and

• whether the bill can be amended to include at least high-level guidance regarding the matters listed at subclause 29(1) on the face of the primary legislation.

Fees in delegated legislation^[60]

1.101 There are several provisions within the bill which would provide for fee‑making powers within delegated legislation. Clause 111 of the bill provides that all instruments, or copies of instruments, that may be subject to inspection under Part 3 of Chapter 3 of the bill are open for inspection by any person on payment of a fee calculated under the licensing scheme. In addition, clause 286 of the bill provides that the regulations may make provision for fees relating to confidential information made available by the Registrar or the Minister under clauses 283 or 285.

1.102 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 clause 111 the explanatory memorandum states:

The applicable fee (if any) will enable the Registrar, as a fully cost-recovered entity, to recover the costs that it will incur in relation to enabling public access to the relevant instrument.^[61]

1.103 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.^[62] In this regard, the committee notes the advice set out at paragraph 24 of the Office of Parliamentary Counsel Drafting Direction No. 3.1.^[63] 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 make clear that the amount calculated under delegated legislation 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.

1.104 The committee also notes that clause 189 states 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 clauses 111 and 286 do not include similar guidance.

1.105 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 clause 111 and clause 286 will be calculated, including, at a minimum, a provision stating that the fees must not be such as to amount to taxation.

Power for delegated legislation to modify the operation of primary legislation (akin to Henry VIII clause)—regulations for pre-existing infrastructure^[64]

1.106 Clause 309 sets out transitional measures in relation to pre-existing offshore infrastructure. Subclause 309(3) provides that the regulations may provide that provisions of the bill apply, or do not apply, to pre-existing infrastructure. Paragraph 309(3)(c) provides that clause 309 ceases to apply at the end of a period or in circumstances specified in the regulations.

1.107 Provisions enabling delegated legislation to modify the operation of primary legislation are akin to Henry VIII clauses, which authorise delegated legislation to make substantive amendments to primary legislation (generally the relevant parent statute). The committee has significant scrutiny concerns with Henry VIII-type clauses, as such clauses impact on the level of parliamentary scrutiny and may subvert the appropriate relationship between the Parliament and the executive. Consequently, the committee expects a sound justification to be included in the explanatory memorandum for the use of any clauses that allow delegated legislation to modify the operation of primary legislation.

1.108 In this case, the explanatory memorandum states:

The purpose of this clause is to make allowance for pre-existing infrastructure, which at the time of the enactment of this legislation is already in place. It is considered that there could be a disadvantage to owners or operators of pre-existing arrangements if they were made subject to new terms and conditions which had not previously been in place. It is appropriate for matters of a detailed transitional nature to be dealt with in delegated instruments to ensure the result is fair and appropriate in particular circumstances.^[65]

1.109 It is not clear to the committee from this explanation why it is not possible to set out transitional provisions relating to pre-existing infrastructure within the bill itself. The committee notes that it has not generally considered administrative flexibility to be a sufficient justification for allowing delegated legislation to modify the operation of primary legislation. Moreover, the committee notes that there is little guidance on the face of the bill as to how the power to make regulations specifying that provisions of the bill apply or do not apply to pre-existing infrastructure should be exercised. For example, the committee notes that there is no requirement that the regulations operate beneficially for individuals, nor does the bill specify a timeframe by which clause 309 ceases to have effect.

1.110 In light of the above, the committee requests the minister's advice as to:

• why it is considered necessary and appropriate to allow delegated legislation to modify the operation of the bill as it applies to pre-existing offshore infrastructure; and

• whether the bill can be amended to, at a minimum, provide that the regulations may only have a beneficial effect and to specify a timeframe as to when clause 309 ceases to apply within the primary legislation.

Tabling of documents in Parliament^[66]

1.111 Clause 181 provides that the minister may, by written notice, require the Regulator to prepare a report or a document setting out specified information relating to the performance of its functions, or the exercise of its powers. A copy of the report must be given to the minister within the period specified in the notice.

1.112 The bill contains no requirement that reports or documents produced under clause 181 be tabled in the Parliament.

1.113 The committee’s consistent scrutiny view is that tabling documents in Parliament is important to parliamentary scrutiny, as it alerts parliamentarians to the existence of documents and provides opportunities for debate that are not available where documents are not made public or are only published online. Tabling reports on the operation of regulatory schemes promotes transparency and accountability. As such, the committee expects there to be appropriate justification within the explanatory memorandum to the bill for failing to mandate tabling requirements.

1.114 In relation to clause 181, the explanatory memorandum states:

The ability for the Minister to require the Regulator to provide reports on the exercise of powers and performance of functions is intended to provide the Minister with information. It is not intended that the reports or documents will be tabled in Parliament or made publicly available. The Regulator is required to publish certain enforcement actions under the Bill, to submit Annual Reports and to be subject to periodic reviews of the performance of its functions and the exercise of its powers. Both Annual Reports and review reports must be tabled or otherwise published.^[67]

1.115 It is not clear to the committee from this explanation why it would be inappropriate to table reports or documents prepared under clause 181 in the Parliament. The committee does not consider that the fact that other reports relating to the Regulator's functions will be publicly available is a sufficient justification for failing to mandate tabling requirements in relation to clause 181.

1.116 Noting that there may be impacts on parliamentary scrutiny where reports associated with the operation of regulatory schemes are not tabled in the Parliament, the committee requests the minister's advice as to why reports or documents prepared under clause 181 of the bill are not required to be tabled in the Parliament.

Limitation on merits review^[68]

1.117 Clause 33 of the bill provides that the Minister may, by written notice, grant a feasibility licence for an offshore area. A feasibility licence may only be granted to an eligible person who meets the criteria set out under clause 34. The Minister may vary the licence under clause 38.

1.118 In addition, the Minister may vary a commercial licence under clause 48, a research and demonstration licence under clause 57, and a transmission and infrastructure licence under clause 66 of the bill. Variation of a licence may include imposing conditions, varying or revoking conditions, and removing one or more licence areas from the scope of the licence.

1.119 A decision by the Minister under clauses 33, 38, 48, 57 or 66 is not subject to external merits review.^[69]

1.120 The committee considers that, generally, administrative decisions that will, or are likely to, affect the interests of a person should be subject to independent merits review unless a sound justification is provided. In relation to a decision by the minister under clause 32, the explanatory memorandum states:

Granting a feasibility licence is not specified as a reviewable decision because the competitive nature of the process renders it unsuitable for external merits review.^[70]

1.121 The committee appreciates that certain decisions may be unsuitable for merits review. However, it is not clear to the committee why the fact that the minister must consider the outcome of a competitive process in forming a decision under clause 33 is a sufficient justification for excluding independent review of that decision.

1.122 The explanatory memorandum does not provide any explanation as to why a decision to vary a licence under clauses 38, 48, 57 or 66 is not subject to external merits review. As a result, it is not clear to the committee why it is appropriate that a decision made under these clauses will not be subject to merits review.

1.123 The committee therefore requests the minister's more detailed advice as to why merits review will not be available in relation to the grant of a feasibility licence under clause 33 or the varying of a licence under clauses 38, 48, 57 or 66 of the bill. The committee's consideration of this matter would be assisted if the minister's response identified established grounds for excluding merits review, as set out in the Administrative Review Council's guidance document, What Decisions Should be Subject to Merit Review?.

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^[29] Subclauses 15(2), 95(4), 96(4), and 116(3), clause 149, and subclauses 203(4) and 211(4). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

^[30] Subsection 13.3(3) of the Criminal Code provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

^[31] Explanatory memorandum, p. 27.

^[32] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

^[33] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 52.

^[34] Subclauses 133(1) and 139(8). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

^[35] Explanatory memorandum, p. 145.

^[36] Clause 112. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

^[37] Explanatory memorandum, p. 106.

^[38] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 54.

^[39] Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 55.

^[40] Subclauses 77(2), 78(2), 116(4), 123(3), 128(3), 139(3), and 267(2). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(i).

^[41] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 22–25.

^[42] Statement of compatibility, p. 14.

^[43] Explanatory memorandum, p. 144.

^[44] Clause 182. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

^[45] Explanatory memorandum, p. 166.

^[46] The committee further notes that the Senate Standing Committee for the Scrutiny of Delegated Legislation has recommended that the blanket exemption of instruments that are 'a direction by a Minister to any person or body' should be abolished. See Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, 16 March 2021, p. 101.

^[47] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, 16 March 2021, pp. 75–76.

^[48] Scrutiny Digest 7 of 2021, chapter 4, pp. 33-34.

^[49] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report, December 2020; and Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, March 2021.

^[50] Senate resolution 53B. See Journals of the Senate, 16 June 2021, pp. 3581–3582.

^[51] Clause 136. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

^[52] Explanatory memorandum, p. 140.

^[53] Scrutiny Digest 7 of 2021, chapter 4, pp. 33-34.

^[54] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report, December 2020; and Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report, March 2021.

^[55] Senate resolution 53B. See Journals of the Senate, 16 June 2021, pp. 3581–3582.

^[56] See, for example, subclause 139(7).

^[57] Clauses 29. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

^[58] Clause 8, definition of 'management plan'.

^[59] See, for example, clause 95, clause 96 and subclause 84(3).

^[60] Clauses 111 and 286. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).

^[61] Explanatory memorandum, p. 105.

^[62] See, for example, subsection 399(3) of the Export Control Act 2020 and subsection 32(4) of the Hazardous Waste (Regulation of Exports and Imports) Act 1989.

^[63] Office of Parliamentary Counsel, Drafting Direction No. 3.1 Constitutional law issues, September 2020, para 24.

^[64] Clause 309. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).

^[65] Explanatory memorandum, p. 263.

^[66] Clause 181. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

^[67] Explanatory memorandum, p. 166.

^[68] Clauses 33 and 38. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).

^[69] See clause 297.

^[70] Explanatory memorandum, p. 255.