Offshore Petroleum (Laminaria and Corallina Decommissioning Cost Recovery Levy) Bill 2021 [2021] AUSStaCSBSD 242 (24 November 2021)

• Offshore Petroleum (Laminaria and Corallina Decommissioning Cost Recovery Levy) Bill 2021
• Modified disallowance procedures46

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Offshore Petroleum (Laminaria and Corallina Decommissioning Cost Recovery Levy) Bill 2021

Purpose	This bill seeks to introduce a temporary levy on offshore petroleum production to recover the Commonwealth’s costs of decommissioning the Laminaria and Corallina oil fields and associated infrastructure.
Portfolio	Treasury
Introduced	House of Representatives on 20 October 2021

Modified disallowance procedures^[46]

1.99 This bill forms part of a package, along with the Treasury Laws Amendment (Laminaria and Corallina Decommissioning Cost Recovery Levy) Bill 2021, seeking to establish a temporary levy on offshore petroleum production. Subclause 7(2) of the bill provides that the Resources Minister may make a determination, by legislative instrument, in relation to the termination of the levy. Similarly, subclause 8(2) of the bill provides that the Resources Minister may make a determination, by legislative instrument, in relation to the Commonwealth’s unrecovered costs for a levy year.

1.100 Clause 12 of the bill sets out when instruments made under subclauses 7(2) and 8(2) take effect. Subclause 12(2) provides that an instrument takes effect on the day immediately after the last day upon which such a disallowance resolution could have been passed by a House of Parliament, or a later day specified in the instrument. Subclause 12(3) provides that if either House of Parliament passes such a resolution, the instrument does not take effect.

1.101 While the committee welcomes the inclusion of clause 12 which will allow each House of Parliament to have an opportunity to disallow an instrument made under subclause 7(2) or 8(2) before it takes effect, the committee notes that the bill does not explicitly cover a circumstance in which a motion to disallow an instrument is unresolved at the end of the disallowance period. Normally, subsection 42(2) of the Legislation Act 2003 provides that where a motion to disallow an instrument is unresolved at the end of the disallowance period, the instrument (or relevant provision(s) of the instrument) are taken to have been disallowed and therefore cease to have effect at that time. Odgers' Australian Senate Practice notes that the purpose of this provision is to ensure that 'once notice of a disallowance motion has been given, it must be dealt with in some way, and the instrument under challenge cannot be allowed to continue in force simply because a motion has not been resolved.' Odgers' further notes that this provision 'greatly strengthens the Senate in its oversight of delegated legislation'.^[47]

1.102 It is unclear to the committee whether it is intended that clause 12 of the bill overrides, or is intended to override, the usual operation of subsection 42(2) of the Legislation Act 2003. In practice, there may be occasions where no time is made available to consider a disallowance motion within 15 sitting days after the motion is lodged. As a result, the operation of clause 12 of the bill could serve to undermine the Senate's oversight of delegated legislation in cases where time is not made available to consider a motion within 15 sitting days. Given the significance of the usual parliamentary disallowance process to Parliament's scrutiny over delegated legislation, the committee has scrutiny concerns in relation to any provision which introduces legislative ambiguity into the disallowance process. The explanatory memorandum to the bill provides no explanation for clause 12 or its intended scope.

1.103 Noting the potential impact of this measure on parliamentary scrutiny, the committee requests the Treasurer's advice as to whether the bill can be amended to clarify that an instrument made under subclause 7(2) or 8(2) will not take effect in circumstances where there is an unresolved motion to disallow the instrument at the end of the 15 sitting day disallowance period.

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[46] Clause 12. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[47] Rosemary Laing (ed), Odgers' Australian Senate Practice: As Revised by Harry Evans (Department of the Senate, 14th ed, 2016), p. 445.