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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
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Purpose
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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.
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Portfolio
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Industry, Science, Energy and Resources
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Introduced
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House of Representatives on 2 September 2021
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Bill status
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Before the House of Representatives
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2.72 In Scrutiny Digest 16 of 2021 the committee requested 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); and
• 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.[35]
Minister's response[36]
2.73 The minister advised:
The Guide to Framing Commonwealth Offences (the Guide) indicates that a change in the burden of proof can be appropriate in circumstances where the issues are 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. Having regard to the Guide, it is nevertheless my view that the reversal of the burden of proof is necessary in these circumstances for the following reasons.
Clause 15(2)
Clause 15 relates to the prohibition of unauthorised offshore electricity infrastructure activities. The exceptions, at subclause 15(2), to this offence are that conduct is authorised by a licence or otherwise authorised or required by or under the Offshore Electricity Infrastructure Bill 2021 (the Bill).
The defendant should know whether the activity in question is authorised by a licence or otherwise authorised or required by or under the Bill and should have quick and easy access to such evidence. While I acknowledge that the prosecution would also be in a position to know if the defendant had been issued with a licence, and what the licence authorised, it is unlikely that it will be able to be determined as quickly and efficiently, whether the activities in question were authorised given the remote nature of offshore electricity infrastructure activities. This information would be readily available from the defendant as they will have intimate knowledge of the specific activities they undertook and the licence or authorisation they hold.
Clause 95(4)
Clause 95 provides that a change in control must be approved by Registrar. Subclause (4) provides that the offence does not apply if the person did not know, and could not reasonably be expected to have known, that the person has begun to control, or ceased to control, the licence holder.
The corporate workings of a licence holder are peculiarly within the knowledge of the defendant. The Offshore Infrastructure Registrar will likely not be aware of all commercial transactions that occur in relation to a licence holder particularly as in some cases, depending on the company ownership structure, transactions may not be publicly reported. It would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish that they were not aware that they had begun to control, or ceased to control, the licence holder.
Clause 96(4)
Clause 96 provides for notification of change in control that takes effect without approval. Subclause (4) provides that the offence does not apply if the person did not know, and could not reasonably be expected to have known, that the person has begun to control, or ceased to control, the licence holder.
In my view, the same reasons for reversing the evidential burden of proof for subclause 95(4) apply to this subclause.
Clause 116(3)
Clause 116 relates to maintenance and removal of property etc. by a licence holder. The licence holder is the entity who has day to day operational control over the activities that occur within their licence area. Therefore the licence holder is the only entity under the regime who will be in a position to authorise, or not authorise, the bringing of property onto their licence area for the purposes of offshore infrastructure activities or for the removal of offshore infrastructure from their licence area.
It would be disproportionately time consuming, expensive and difficult for the prosecution to have to establish that items of property or equipment were brought into the licence area with the licence holder’s authority or otherwise, whereas this information would be readily available to the licence holder as the entity who is in day-to-day control of activities on their licence area. It is therefore considered appropriate in this circumstance that the evidential burden of proof be placed on the licence holder.
Clause 149
Clause 149 provides for defences to the offence of engaging in prohibited or restricted activities in clause 148. Protection zones will be put in place in remote maritime locations in the Commonwealth offshore area. In the event that a person engages in prohibited or restricted conduct in a protection zone, that person’s motivations for engaging in that conduct are likely to be peculiarly within their own knowledge. The prosecution will not have knowledge of the motivations of the defendant who is alleged to have engaged in the prohibited or restricted conduct and therefore it is considered appropriate for the burden of proof in relation to the motivations of the defendant to rest with the defendant.
Clause 203(4)
Clause 203 relates to obstructing or hindering Offshore Electricity Infrastructure (OEI) inspectors. Subclause (4) provides that a person does not commit an offence if the person has a reasonable excuse. The excuse for obstructing or hindering an inspector is peculiarly within the knowledge of the person who engaged in this conduct. It is therefore reasonable for the defendant to bear the evidential burden of proof in relation to establishing a reasonable excuse for their conduct.
Clause 211(4)
Clause 211 relates to tampering with and removing notices. This offence does not apply if the person has a reasonable excuse. In my view, the same reasons for reversing the evidential burden of proof for subclause 203(4) apply to this subclause.
Further to the above, and as noted by the committee, clauses 203(4) and 211(4) provide that the defendant bears an evidential burden to establish a defence of reasonable excuse, rather than relying on the general defences in the Criminal Code or more offence-specific defences adapted to the particular circumstances. In both instances the defence of reasonable excuse has been applied because it is considered appropriate to allow for a more ‘open-ended’ defence. This is because the matters relating to the offences will be peculiarly within the defendant’s knowledge. For example, there may be any number of reasons why a defendant engaged in conduct that hinders an OEI Inspector (clause 203). The reasons for this would be peculiarly within the defendant’s knowledge. A more ‘open-ended’ defence is necessary to capture all of the circumstances which may reasonable explain the defendant’s contravention. A contravention of clause 211 could similarly be explained by reasons peculiarly within the defendant’s knowledge.
Additionally, these provisions have been considered and aligned with those in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act). The National Offshore Petroleum Safety and Environmental Management Authority (NOPSEMA) has regulatory functions under that act, and is also being provided the role of Offshore Infrastructure Regulator under the Offshore Electricity Infrastructure Bill 2021. As NOPSEMA is the regulator for both frameworks, and it is possible that there will be others who are participants in the industries regulated by both legislative schemes, it is important that there is a consistency in approach to the extent reasonably possible.
In addition, I note that there is a body of case law around the meaning of the expression ‘reasonable excuse’ and what is needed for a trier of facts to conclude that such an excuse exists. Accordingly, while I acknowledge that, in accordance with the Guide, this defence would usually be avoided in Commonwealth legislation, in view of the policy rationale outlined above, the need for consistency with similar legislative schemes, and the case law surrounding this legal test, I consider its use in this context to be appropriate.
Committee comment
2.74 The committee thanks the minister for this response. The minister's advice in relation to each relevant clause is summarised below.
Subclause 15(2)
2.75 Subclause 15(2) provides that it is a defence if the conduct of certain activities in relation to infrastructure that is within a Commonwealth offshore area is authorised by a licence or the Act.
2.76 The minister advised that, while the prosecution would be in a position to know if the defendant had been issued with a licence, and what the licence authorised, the evidential burden of proof in relation to subclause 15(2) is appropriate as it is unlikely that the prosecution will be able to determine in a quick and efficient manner whether the activities carried out in relation to infrastructure were authorised given the remote nature of offshore electricity infrastructure activities. The minister further advised that the defendant will have intimate knowledge of the specific activities they undertook and the licence or authorisation they hold.
Subclause 95(4) and 96(4)
2.77 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 of a licence holder had occurred.
2.78 The minister advised that it would be significantly more difficult and costly for the prosecution to disprove a change in control of licence holder as the Registrar will likely not be aware of all commercial transactions that occur in relation to a licence holder and, in some cases, transactions may not be publicly reported.
Subclause 116(3)
2.79 Subclause 116(3) provides that it is a defence if structure, equipment or property was not brought into the licence area by authority of the licence holder.
2.80 The minister advised that it would be disproportionately time consuming, expensive and difficult for the prosecution to establish that items of property or equipment were brought into the licence area with the licence holder's authority or otherwise, whereas this information would be readily available to the licence holder as the entity who is in day-to-day control of activities inside their licence area.
Clause 149
2.81 Clause 149 provides a defence if prohibited activities within a protected zone were carried out because it was necessary to save a life or vessel, prevent pollution, or if all reasonable steps had been taken to avoid engaging in the conduct.
2.82 The minister advised that the prosecution will not have knowledge of the motivations of the defendant who is alleged to have engaged in the prohibited or restricted conduct and therefore it is appropriate for the burden of proof to rest with the defendant.
Subclause 203(4)
2.83 It is a defence under subclause 203(4) if the person has a reasonable excuse for a person obstructing or hindering an Offshore Electricity Infrastructure inspector who is exercising powers under Part 2 or 3 of the Regulatory Powers (Standard Provisions) Act 2014.
2.84 The minister advised that the excuse for obstructing or hindering an inspector is peculiarly within the knowledge of the person who engaged in this conduct. For this reason, the minister advised that it is reasonable for the defendant to bear the evidential burden of proof in relation to establishing a reasonable excuse for their conduct.
Subclause 211(4)
2.85 It is a defence under subclause 211(4) if the person has a reasonable excuse for tampering with a notice that is displayed in accordance with subclauses 206(2), 208(3) or 209(8).
2.86 The minister advised that the same reasons for reversing the evidential burden of proof for subclause 203(4) apply to this subclause.
2.87 The minister further advised that the defence of reasonable excuse applied for subclause 203(4) and subclause 211(4) is considered appropriate to allow for a more 'open-ended' defence. The minister advised that a more 'open-ended' defence is necessary to capture all of the circumstances which may reasonably explain why a defendant engaged in conduct that hinders an Offshore Electricity Inspector.
2.88 Finally, the minister advised that the above provisions have been considered and aligned with those in the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act). The minister also advised that as NOPSEMA is the regulator for both the OPGGS Act and the Offshore Electricity Infrastructure Bill 2021, it is important that there is a consistency in approach.
2.89 While noting this explanation, the committee does not consider that the explanation provided adequately justifies why it is proposed to use offence-specific defences in relation to the provisions listed above. The committee reiterates that the Guide to Framing Commonwealth Offence 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.[37]
2.90 While the committee acknowledges that it may be difficult for the prosecution to establish that a person did not have lawful authority to engage in the conduct set out in the offences, the committee emphasises that the mere fact that it is more difficult for the prosecution to prove a particular matter is not, of itself, a sufficient justification for placing the evidential burden of proof on a defendant. The committee considers that it does not appear to the appropriate to reverse the evidential burden of proof in relation to the matters in subclauses 15(2), 95(4), 96(4), clause 149, and subclause 211(4).
2.91 In addition, the committee has also generally not accepted consistency with existing legislation to be a sufficient justification for reversing the evidential burden of proof.
2.92 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof in relation to subclauses 15(2), 95(4), 96(4), and 116(3), clause 149, and subclauses 203(4) and 211(4) of the bill and whether it is appropriate to use a defence of reasonable excuse in subclauses 203(4) and 211(4) rather than relying upon more specific defences.
2.93 In Scrutiny Digest 16 of 2021 the committee requested 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.[39]
Minister's response[40]
2.94 The minister advised:
The Guide states that placing a legal burden of proof on a defendant should be kept to a minimum and where imposed, the burden of proof must be discharged on the balance of probabilities. Having had regard to the Guide, it is nevertheless my view that the reversal of the legal burden of proof is necessary in these circumstances for the following reasons.
Clause 133 provides for a defence in the case of a prosecution for failing to comply with a direction that may be given to a person by the minister or the Offshore Infrastructure Regulator under a number of provisions. It operates where that person has taken reasonable steps to comply with a direction.
Subclause (1) specifies that it is a defence in a prosecution for an offence, or in proceedings for a civil penalty order, for a breach of a direction in the case where the defendant is able to establish that they took all reasonable steps to comply with the direction. The explanatory note makes clear that the onus is on the defendant to establish this. The defendant bears a legal burden in a prosecution or proceedings for a civil penalty.
This is because the capacity of a person to comply with a direction, and information as to whether a person has taken a reasonable steps to comply with a direction, are all matters that are peculiarly within the person's knowledge and would not generally be available to the prosecution. The prosecution might have no knowledge of what the defendant actually did, and might know only that the direction was not complied with. In contrast, in bringing a defence, the defendant would know what steps were taken and would be better placed to establish the reasonableness of the steps.
Affected persons (offshore electricity infrastructure licence holders) are expected to maintain thorough records of their activities. Raising evidence of their capacity to comply with a direction or proving on the balance of probabilities that they have undertaken reasonable steps to comply with the direction, should place no significant additional burden on them. The licence holder is in a unique position to understand the technical and financial resources available to them, which may allow them to take reasonable steps to comply with a direction.
If the burden of proof were not reversed, the prosecutor would be required to undertake costly and difficult investigations into the internal workings of the person in question. In many cases the prosecutor may have some difficulty accessing information about the person's capacity to comply with the direction or whether they have undertaken reasonable steps to comply.
Subclause 139(8) sets out a defence provision in a prosecution in relation to entering or being present in a safety zone. The offence provision provides for intentional breach, reckless breach, negligent breach and strict liability. In presenting a defence, again the defendant bears the legal burden. This is because the matters set out are ones that the prosecution would be unable to establish the absence of. For example, in relation to (a), the defendant would be peculiarly able to establish that there was an emergency, that it was unforeseen, and that it had the result outlined in that paragraph. Likewise for paragraphs (b) and (c), the defendant would be peculiarly able to establish the circumstances in which these subclauses apply.
In each case, the remoteness of the Commonwealth offshore area is likely to make it difficult for the prosecution to obtain evidence about what was transpired in any of the circumstances to which the above clauses apply.
In my view, it is appropriate to impose a legal burden of proof instead of an evidential burden because failing to comply with a direction is a serious offence which could result in loss of life, injury or significant damage to infrastructure. Similarly, the offence of entering a safety zone without authorisation is an equally serious offence that could also lead to loss of life, injury, or damage to infrastructure. In both instances it is appropriate that the onus is placed on the defendant to establish on the balance of probabilities.
For the reasons above, it is my view that the reversal of the legal burden of proof in subclauses 133(1) and 139(8) is appropriate.
Committee comment
2.95 The committee thanks the minister for this response. The committee notes the minister's advice that the capacity of a person to comply with a direction, or to provide information as to whether a person has taken reasonable steps to comply with a direction are matters that would be peculiarly within the defendant's knowledge and would not generally be available to the prosecution.
2.96 The minister further advised that offshore electricity infrastructure licence holders are expected to maintain records of their activities to prove that they have undertaken reasonable steps to comply with a direction under clause 133. The minister advised that if the burden of proof were not reversed in regard to subclause 133(1), the prosecutor would be required to undertake costly investigations and may have some difficulty accessing information about the person's capacity to comply with the direction or whether they have undertaken reasonable steps to comply.
2.97 Similarly, the minister advised that the prosecution would be unable to establish the absence of any of the matters set out in subclause 139(8). For example, in relation to paragraph 139(8)(a), the defendant would be peculiarly able to establish that there was an emergency, that it was unforeseen, and that it had the result outlined in that paragraph.[41]
2.98 Finally, the minister advised that it is appropriate to impose a reverse legal burden of proof instead of an evidential burden in this case because both offences are serious and could result in loss of life, injury or significant damage to infrastructure.
2.99 While acknowledging this advice, it is not clear to the committee from this explanation why it is necessary to reverse the legal burden of proof, as opposed to the evidential burden of proof, in relation to either clause 133 or subclause 139(8). The committee reiterates its view that the legal burden of proof should only be reversed in exceptional circumstances. The committee notes the minister's advice that the seriousness of the offence means that it is appropriate for a reverse legal burden to apply. However, the committee does not consider the seriousness of an offence to be a sufficient justification for reversing a legal burden of proof. Rather, the exceptional circumstance said to justify the reversal of the legal burden of proof would more appropriately relate to the nature of the evidence needed to be adduced in order to prove a relevant defence.
2.100 In this instance, the committee's concerns are heightened given that the legal burden of proof is reversed in relation to a number of strict liability offences and the fact that significant penalties may apply including significant custodial penalties.
2.101 In light of the above, the committee requests the minister's more detailed advice as to why it is not sufficient to reverse the evidential, rather than legal, burden of proof in relation to the defences set out at clause 133 and subclause 139(8) of the bill.
2.102 In Scrutiny Digest 16 of 2021 the committee requested the minister's advice 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.[43]
Minister's response[44]
2.103 The minister advised:
Safety zones are needed in order to protect offshore electricity infrastructure, vessels in the vicinity of such infrastructure, and the safety and lives of crew on infrastructure and vessels. They are in turn protective of the environment surrounding such infrastructure, as well as of the associated economic investment.
Two of the principal reasons that this Bill applies strict liability to the offence under subclause 139(7) are as follows.
First, an important consideration is alignment with similar offence provisions under sections 616 and 617 of the OPGGS Act, which apply to offshore petroleum infrastructure and offshore greenhouse gas infrastructure respectively. The matters that these existing provisions protect and the matter that clause 139 of this Bill is intended to protect are similar in many regards. Given this degree of similarity, I am concerned that, if corresponding penalties were not applied to clause 139 of this Bill, the effect would be that this Bill would have significantly weaker penalties than existing laws for breaching safety zones, which could conceivably adversely affect investment in offshore renewable energy infrastructure as compared to investment in other offshore resources infrastructure.
Second, I consider that the use of strict liability offences for these safety zone provisions is justified as a result of the serious consequences of a breach of those provisions. In this regard, it is important to note:
• the vulnerability and physical defencelessness of offshore facilities of this nature, particularly unmanned ones; and
• the potentially serious consequences of damage to, or interference with, facilities or operations at such facilities.
When considering offences that are alleged to have occurred in an offshore area, this kind of legislation has traditionally taken account of the viability of conducting a successful prosecution, if that can be achieved only with proof of intention, recklessness or negligence.
Taken together, these factors have in the past led to the use of strict liability offences.
In relation to the points outlined in the Guide to Framing Commonwealth Offences, I note the following:
• Contrary to the Guide, subclause 139(7) imposes strict liability in circumstances where there is a term of imprisonment. However, the penalty for the strict liability offence is markedly lower than the penalties for the corresponding fault-based offences under that clause. In view of the above comments, and the cascading nature of the penalties, which reduce as culpability reduces, I consider a departure from this element of the Guide to be justified in this case.
• In light of the above comments, strict liability here is necessary in order to ensure the integrity of the regulatory regime under this Bill as it relates to safety zones. This also gives rise to associated environmental protections.
• There are no broad or uncertain criteria involved in subclause 139(7) of this Bill.
• Strict liability is not being imposed on the sole ground of minimising resource requirements.
Committee comment
2.104 The committee thanks the minister for this response. The committee notes the minister's advice that the offence set out at subclause 139(7) aligns with similar offence provisions under sections 616 and 617 of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OPGGS Act). The minister advised that if corresponding penalties were not applied to clause 139 of the bill, the penalties would be significantly weaker than existing laws for breaching safety zones and would adversely affect investment in offshore renewable energy infrastructure.
2.105 The minister advised that the imposition of strict liability offences is justified as a result of the serious consequences of a breach of the provisions under clause 139 such as the vulnerability and physical defencelessness of the offshore facilities, and the potentially serious consequences of damage to, or interference with, facilities or operations at such facilities. The minister advised that imposing strict liability offences is necessary in order to ensure the integrity of the regulatory regime under the bill as it relates to safety zones and associated environmental protections.
2.106 The minister further advised that the imposition of strict liability offences in this case takes into account the viability of conducting a successful prosecution and that, while the penalty imposed under subclause 139(7) includes a term of imprisonment, the penalty for the offence is lower that the penalties for the corresponding fault-based offences under clause 139.
2.107 The committee notes the minister's advice that the offence of strict liability is appropriate in this instance to protect the safety and lives of crew on infrastructure and vessels, and to protect the environment surrounding such infrastructure. While noting this justification, the committee continues to have scrutiny concerns about the application of strict liability to an offence carrying a maximum penalty of imprisonment for five years, noting that this penalty is significantly higher than is recommended in the Guide to Framing Commonwealth Offences.[45] The committee has also generally not accepted consistency with existing legislation to be a sufficient justification for applying strict liability in circumstances in which the penalty is inconsistent with the recommendations of the Guide to Framing Commonwealth Offences.
2.108 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of providing that the offence set out at subclause 139(7) is an offence of strict liability subject to a significant custodial penalty.
2.109 In Scrutiny Digest 16 of 2021 the committee requested the minister's 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.[47]
Minister's response[48]
2.110 The minister advised:
Clause 182 provides that the minister may make a direction. Directions under this clause provide the minister with a degree of control over the exercise of the functions of the Offshore Infrastructure Regulator under the offshore electricity infrastructure framework. The provisions make it clear that the minister may only issue directions to the Offshore Infrastructure Regulator that are general in nature.
For example, I may wish the Offshore Infrastructure Regulator to increase monitoring and compliance activities in relation to the industry, in the event of a significant incident or series of significant incidents that warrant increased regulatory intervention and where I am not satisfied that he Offshore Infrastructure Regulator is appropriately focusing regulatory effort on matters of this nature.
While the directions are given by legislative instrument, they are intrinsically of an administrative rather than a legislative character. This is primarily to ensure public notice of directions. Given the overall administrative character, disallowance would be inappropriate in this context.
In my view, it would be inappropriate to amend this Bill as suggested, as a power to direct a regulator such as this is not the kind of matter that is traditionally made subject to Parliamentary oversight and disallowance.
Committee comment
2.111 The committee thanks the minister for this response. The committee notes the minister's advice that, while directions given under clause 182 are legislative instruments, they are intrinsically of an administrative rather than a legislative character. The minister further advised that given this administrative character and the fact that similar directions powers have previously not been subject to disallowance, disallowance would be inappropriate in this context.
2.112 While acknowledging this advice, the committee considers that it is not sufficient to merely state that instruments made under clause 182 will be administrative in nature when instruments made under clause 182 could conceivably include provisions that are legislative in character. The committee also reiterates that the mere fact that an instrument making power falls within a class of provisions that are routinely exempt from disallowance is not a sufficient justification for not subjecting those instruments from disallowance without further justification.[49]
2.113 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of not subjecting ministerial directions given to the Regulator under clause 182 of the bill to parliamentary disallowance.
2.114 In Scrutiny Digest 16 of 2021 the committee requested the minister's advice regarding:
• why it is considered necessary and appropriate that all 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.[51]
Minister's response[52]
2.115 The minister advised:
Safety zones are needed in order to protect offshore electricity infrastructure, vessels in the vicinity of such infrastructure, and the safety and lives of crew on infrastructure and vessels. They are in turn protective of the environment surrounding such infrastructure, as well as of the associated economic investment.
Determinations of safety zones are likely to occur at different times throughout the life of an offshore electricity infrastructure project and are intended to be short term in nature. They prohibit vessels from entering an area for a period of time in order to minimise risks of collision during times of significant activity, such as during construction and installation of infrastructure where risks to the health and safety of workers and other marine users are heightened, or in response to an emergency.
Due to restrictions on the size of safety zones that stem from the United Nations Convention of the Law of the Sea (500m from the outer edge of infrastructure), it is likely that multiple safety zones will be required for an individual project depending on project layout. For example, a large windfarm with up to 300 wind turbines may require in excess of 300 safety zone determinations to cover all infrastructure, including turbines, cables and substations during periods of construction, installation and commissioning, and these determinations may be subject to amendment over time. These safety zones may also be progressively determined and then revoked over relatively short timeframes as needed.
In my view, safety zone determinations do not of themselves determine the content of the law. Rather, the content of the law is set out in Division 3 of Part 2 of this Bill. As the determinations do not determine the content of the law, they are not intrinsically of a legislative character, and so are appropriately classified as not being legislative instruments.
What the determinations do is determine the facts on which the law, as set out in this Bill, operates. It is accordingly more akin to an administrative determination that is given legal consequence by provisions of this Bill.
In my view it would not be appropriate for safety zone determinations to be subject to disallowance, as the time-critical nature of the implementation is key to its effectiveness. For this reason, and those above, I consider it appropriate that safety zone determinations are notifiable instruments and that amending this Bill is not necessary.
Committee comment
2.116 The committee thanks the minister for this response. The committee notes the minister's advice that safety zones are needed in order to protect offshore electricity infrastructure, vessels in the vicinity of such infrastructure, surrounding areas, and the safety and lives of crew on infrastructure and vessels. The minister further advised that determinations of safety zones are likely to occur at different times throughout the life of an offshore electricity infrastructure project and are intended to be short term in nature.
2.117 The minister further advised that as safety zone determinations do not of themselves determine the content of the law, they are not intrinsically of a legislative character and so are appropriately classified as not being legislative instruments. Finally, the minister advised that it would not be appropriate for safety zone determinations to be subject to disallowance, as the time-critical nature of the implementation is key to its effectiveness.
2.118 While acknowledging this advice, it is not clear to the committee why a determination made under clause 136 is not of a legislative character in circumstances where it appears that the making of such a determination could alter or determine 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 remains 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.
2.119 Furthermore, the committee notes that legislative instruments can commence immediately after they registered on the Federal Register of Legislation. It is therefore unclear to the committee how providing that determinations made under clause 136 are legislative instruments would prevent the Regulator from acting quickly if necessary.
2.120 The committee reiterates its scrutiny concerns in relation to proposed clause 136 of the bill which provides that safety zone determinations are notifiable instruments, which are not subject to the tabling, disallowance and sunsetting requirements that apply to legislative instruments.
2.121 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of leaving determinations made under clause 136 to non-disallowable instruments which are not subject to parliamentary scrutiny.
2.122 In Scrutiny Digest 16 of 2021 the committee requested the minister's 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.[54]
Minister's response[55]
2.123 The minister advised:
The framework of the licensing scheme has been set out in Chapter 3 of this Bill. The ability to set out the operational detail in delegated legislation is considered essential for flexibility to adapt to a changing industry and a cover a range of different technologies and infrastructure. Having the technical details that underpin these licence arrangements in delegated legislation allows for industry and other stakeholders to participate in the development of the regulations.
I understand that the Committee generally does not accept a desire for administrative flexibility in order to justify broad delegation legislation-making powers, and I appreciate the basis of the Committee’s view in this regard. However, in my view, the need to permit these details to be set out in delegated legislation goes beyond what might be thought of as being mere administrative flexibility. Its need stems from the newness of the offshore energy industry, and the impossibility, at this stage, of predicting precisely what kind of regulatory scheme will be needed over time as the industry develops. If this Bill was to unduly limit the ability of the legislative scheme to develop as the industry develops, there would be a real risk that the legislation could then hamper the development of the industry, which would be an unwelcome outcome.
In relation to providing high-level guidance as to the matters listed at subclause 29(1) of this Bill, I note that this Bill already includes several provisions in addition to clause 29 which specify:
• particular matters that the licensing scheme must include – see subclauses 32(1) and (2), 41(2) and (3), 51(1) and (2), 60(1) and (2), 69(3) and 114(1), and
• particular matters that the licensing scheme may include – see subclauses 29(2), 32(3), 34(2), 36(3), 37(1), 44(2), 46(2), 47(1), 53(2), 55(3), 56(1), 62(2), 64(2), 65(1), 72(2) and (3), 84(3), 107(5), 114(1) and (3), and 115(2).
I consider that, in view of these provisions, this Bill already contains a sufficient level of guidance as to what must and may be included in the feasibility scheme, and more guidance than Bills ordinarily provide for delegated legislation. Because of that, while I appreciate the Committee’s underlying concern here, I do not consider it necessary in this instance for this Bill to be amended to provide further high-level guidance regarding the matters listed at subclause 29(1).
Committee comment
2.124 The committee thanks the minister for this response. The committee notes the minister's advice that flexibility is needed due to the newness of the offshore energy industry and the impossibility at this stage of predicting what kind of regulatory scheme will be needed as the industry develops. The minister advised that including the key details of the licensing scheme within delegated legislation will allow for industry and other stakeholders to participate in the development of the regulations and that including this detail within the bill could instead serve to hamper the development of the industry.
2.125 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.126 In light of the detailed information provided, the committee makes no further comment on this matter.
2.127 In Scrutiny Digest 16 of 2021 the committee requested 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.[57]
Minister's response[58]
2.128 The minister advised:
In my view, it would be inappropriate for this Bill to be amended to provide further guidance regarding how the fees under clauses 111 and 286 will be calculated.
As the Committee notes, the explanatory memorandum to this Bill already indicates that fees will be set at cost-recovery levels. The fees will be calculated in line with the guidelines for Cost Recovery Implementation Statements (CRIS), and set out in delegated legislation. It is expected that this will be done within the 6 month proclamation period so that industry can be consulted and the details settled to coincide with commencement of the legislation. I consider that this is important to ensure that this new regulatory regime is able to be fully cost recovered. As the industry evolves, adjustments to the fees may be required to ensure that they continue to reflect industry needs. The regulations are subject to disallowance.
Further, in my view, clauses 111 and 286 are not intended to be read as independent, free-standing powers to prescribe fees by regulation.
Rather, clause 111 should be read as an obligation on the Offshore Infrastructure Registrar to (stated broadly) ensure that instruments are available for inspection upon payment of a fee, where the fee will be calculated in accordance with the licensing scheme. This clause does not deal with the actual power to prescribe the fee, which is dealt with elsewhere. Rather, this clause requires the Offshore Infrastructure Registrar to ensure that instruments are made open for inspection, where this requirement is condition on the payment of the relevant fee. The fee itself would need to be prescribed under the provisions contained in Part 3 of Chapter 5 of this Bill. Of this part, subclause 189(1) permits fees to be charged, and subclause 189(2) provides that the amount of such a fee is the amount prescribed, or worked out in accordance with a method prescribed, by the regulations. Subclause (3) provides that such a fee must not be such as to amount to taxation. Accordingly, my view is that the limitation sought by the Committee already exists in relation to clause 111, when the Bill is read in the intended way.
Similarly, I do not consider that clause 286 should be read as an independent, free-standing power to prescribe fees. This provision should be read as expressly providing that fees may be prescribed in relation to the matters referred to in paragraph 283(3)(a) or 285(4)(a), but it should also be read as operating alongside the provisions of Part 3 of Chapter 5 of this Bill, which relate to prescribing of fees, and as also being limited by subclause 189(3).
Accordingly, while I appreciate the Committee’s concerns in this regard, I consider that these observations together obviate the need for further amendment to this Bill to address these concerns in relation to these provisions.
Committee comment
2.129 The committee thanks the minister for this response. The committee notes the minister's advice that the explanatory memorandum already states that the amount of the fees will be set at cost-recovery level. The minister also advised that the fees will be calculated in line with the guidelines for Cost Recovery Implementation Statements. The minister advised that the fee is expected to be set out within delegated legislation within the 6-month proclamation period so that industry can be consulted, and the details settled to coincide with commencement of the legislation. The minister also advised that, as the industry evolves, adjustments to the fees may be required to ensure that they continue to reflect industry needs.
2.130 The minister further advised that, in his view, clauses 111 and 286 are not intended to be read as independent, free-standing powers to prescribe fees by regulation. The minister advised that, rather, this power is instead contained in Part 3 of Chapter 5 of the bill. The minister noted that subclause 189(1) permits fees to be charged, and subclause 189(2) provides that the amount of such a fee is the amount prescribed, or worked out in accordance with a method prescribed, by the regulations. Subclause (3) provides that such a fee must not be such as to amount to taxation.
2.131 In light of the detailed information provided, the committee makes no further comment on this matter.
2.132 In Scrutiny Digest 16 of 2021 the committee requested 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.[60]
Minister's response[61]
2.133 The minister advised:
Henry VIII clauses are not uncommon as part of transitional arrangements. In my view, this clause is needed to deal with any unintended or unforeseen circumstances that may arise in the future. As the purpose of the provision is to assist with unintended or unforeseen circumstances, it is difficult to provide specific examples of when the rule-making power may be used or a timeframe for when they may apply.
The use of delegated legislation in this instance will provide the flexibility to work directly with owners of existing infrastructure to ensure that specific adjustments can be made, if needed, to minimise the impact on operations. It was not possible for this Bill to set out a comprehensive scheme for dealing with pre-existing infrastructure, because:
• When this Bill was introduced, it was not possible to state with certainty what pre-existing infrastructure there would be in the Commonwealth offshore area when the Bill commences.
• After this Bill enters into law, the appropriate way to regulate pre-existing infrastructure might develop, along with the general development of the offshore electricity infrastructure industry and the associated regulatory regime. For this reason, the flexibility provided by delegated legislation was needed to deal with regulation of this pre-existing infrastructure.
The Committee noted that there was no requirement under this Bill that regulations made for the purposes of clause 309 operate beneficially to individuals. In my view, it would be inappropriate to include a limitation of this nature. The regulatory scheme under this Bill necessarily balances a range of interests, and regulations made for the purposes of this clause will similarly need to balance the interests of owners or operators of pre-existing infrastructure against the interests of others affected by regulation of offshore electricity infrastructure, or with broader interests in the Commonwealth offshore area. Because of that, I think that it would be inappropriate for the Bill to impose a limitation of the kind proposed.
The Committee noted that there was no requirement under this Bill that such regulations cease to have effect after a specified timeframe. For similar reasons to those outlined above, in a new and evolving industry such as this, it is not possible to propose a particular date up-front by which transitional provisions of this nature will cease to be required.
As such, I consider it appropriate for delegated legislation to modify the operation of this Bill as it applies to pre-existing infrastructure, ensuring a fit for purpose approach can be taken.
Committee comment
2.134 The committee thanks the minister for this response. The committee notes the minister's advice that the use of delegated legislation in this instance will provide the flexibility to work directly with owners of existing infrastructure to ensure that specific adjustments can be made to minimise the impact on offshore infrastructure operations.
2.135 The minister advised that it would be inappropriate to introduce a requirement that regulations made for the purposes of clause 309 operate beneficially for individuals because the regulations will need to balance the interests of owners or operators of pre-existing infrastructure against the interests of others affected by regulation of offshore electricity infrastructure, or with broader interests in the Commonwealth offshore area.
2.136 The minister also advised that it would be inappropriate to introduce amendments such that the regulations cease to have effect after a specified timeframe because it is not possible to propose a particular date by which transitional provisions of this nature will cease to be required.
2.137 The committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.138 In light of the detailed information provided, the committee makes no further comment on this matter.
2.139 In Scrutiny Digest 16 of 2021 the committee requested 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.[63]
Minister's response[64]
2.140 The minister advised:
Clause 181 of this Bill provides that the minister may require the Offshore Infrastructure Regulator to prepare reports or give information. The Offshore Infrastructure Regulator must comply with that requirement. NOPSEMA is the specified Offshore Infrastructure Regulator and it is important that this process aligns with the specifications in the legislation NOPSEMA is created under, the OPGGS Act.
There are other mechanisms in this Bill whereby the Offshore Infrastructure Regulator is required to table or publish information on the performance of its functions and as such, I do not consider that an amendment is needed.
Importantly, this Bill does not preclude the tabling of these reports or documents, and so there is discretion to table in appropriate circumstances, in accordance with usual Parliamentary procedures.
Committee comment
2.141 The committee thanks the minister for this response. The committee notes the minister's advice that the current tabling requirements align with similar provisions in the OPGGS Act. The minister further advised that an amendment introducing tabling requirements in relation to documents produced under clause 181 is not needed as there are other provisions within the bill that require the Regulator to table or publish information on the performance of its functions.
2.142 While acknowledging this advice, the committee does not consider consistency with existing legislation to be a valid justification for not providing for significant documents to be tabled in Parliament. The committee reiterates that not providing for reports produced by the Regulator to be tabled in Parliament reduces the scope for parliamentary scrutiny. The process of tabling documents in Parliament alerts parliamentarians to their existence and provides opportunities for debate that are no available where documents are only published online. From a scrutiny perspective, the committee therefore does not consider that the minister's response has provided a sufficient justification as to why it is appropriate not to provide for tabling of reports or documents prepared under clause 181 of the bill in the Parliament.
2.143 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of not requiring reports prepared by the Offshore Infrastructure Regulator under clause 181 to be tabled in the Parliament.
2.144 In Scrutiny Digest 16 of 2021 the committee requested the minister's 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 noted that its 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?.[66]
Minister's response[67]
2.145 The minister advised:
The principles as set out in the Administrative Review Council's guidance document ‘What Decisions Should be Subject to Merit Review’? (the ARC guidance document) were considered during development of the Bill.
In response to the specific queries of the Committee I make the following comments.
The ARC guidance document provides for the exclusion of merits review, amongst other things, where decisions are allocating a finite resource between competing applicants and an allocation that has already been made to another party would be affected by overturning the original decision.
A feasibility licence authorises the holder to construct, install, commission, operate, maintain and decommission offshore renewable energy infrastructure. The undertaking of these activities are exclusive to the licence holder within the licence area. Therefore, in granting a feasibility licence, I am allocating a finite resource. Where there is multiple parties applying for licences in the same, or overlapping, areas, I am allocating a finite resource between competing parties. It is not possible to grant a feasibility licence to each and every proponent.
Merit criteria have been set out to determine the suitability of applicants. The criteria for allocating feasibility licences will be made clear in the licensing scheme and associated guidance.
A successful feasibility licence applicant could be negatively affected if, for example, upon the successful grant of a feasibility licence, the holder proceeded to finance activities authorised under the feasibility licence. If a merits review application was then made, and the subsequent decision was to overturn the original decision, the original successful feasibility licence applicant could be left in an uncertain position and therefore be negatively affected.
In the case of a licence variation there are limitations to when a licence may be varied. The licence holder can make an application, in accordance with the licensing scheme, to vary the licence. Variation applications are expected to be mainly made in this way or connected to other applications (such as change of control). The licence holder will have visibility over the decision-making processes for variation and the processes will be subject to procedural fairness.
I am satisfied that the approach in this Bill aligns with the ARC guidance document.
Committee comment
2.146 The committee thanks the minister for this response. The committee notes the minister's advice that the Administrative Review Council's guidance document What Decisions Should be Subject to Merit Review? provides for the exclusion of merits review where decisions are allocating a finite resource between competing applicants and an allocation that has already been made to another party would be affected by overturning the original decision. The minister advised that, as a feasibility licence authorises the holder to construct, install, commission, operate, maintain and decommission offshore renewable energy infrastructure within a specific area, a finite resource is being allocated upon granting a feasibility licence.
2.147 The minister advised that a successful feasibility licence applicant could be negatively affected if, for example, upon the successful grant of a feasibility licence, the holder proceeded to finance activities authorised under the feasibility licence and the original decision was subsequently overturned as a result of an application for independent merits review. The minister advised that the criteria for granting a feasibility licence will be found within guidance documents and the licensing scheme upon passage of the bill through Parliament.
2.148 In relation to the minister's power to vary a licence, the minister advised that there are limitations placed on when a licence may be varied. The minister advised that the licence holder can make an application, in accordance with the licensing scheme, to vary the licence and that it is expected this will be the main way in which variation applications will be made. As such, the minister advised that the licence holder will have visibility over the decision-making processes for variations and that these processes will be subject to procedural fairness.
2.149 While acknowledging the minister's advice, the committee does not consider that the mere existence of some elements of procedural fairness in relation to a decision justifies the exclusion of independent merits review where the consequences of that decision will, or are likely to, affect the interests of a person. The committee notes that the broad powers to vary a licence under clauses 38, 48, 57 or 66 of the bill may affect the interests of a person and that it would therefore be more appropriate to subject these decisions to independent merits review.
2.150 In relation to the granting of a feasibility licence under clause 33 of the bill, the committee requests that an addendum to the explanatory memorandum containing the key information provided by the minister be tabled in the Parliament as soon as practicable, noting the importance of these explanatory materials as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).
2.151 In relation to the varying of a licence under clauses 38, 48, 57 or 66 of the bill, the committee requests the minister's more detailed advice as to why merits review will not be available. 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?.
[34] 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 these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[35] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, pp. 15-17.
[36] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[37] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.
[38] Subclauses 133(1) and 139(8). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[39] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, pp. 17-19.
[40] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[41] Under paragraph 139(8)(a), it is a defence if the defendant proves that an unforeseen emergency rendered it necessary for the vessel to enter or be present in the safety zone in order to attempt to secure the safety of the vessel, or another vessel, or offshore renewable energy infrastructure or offshore electricity transmission infrastructure, or any other structure or equipment, or human life.
[42] Subclauses 77(2), 78(2), 116(4), 123(3), 128(3), 139(3), and 267(2). The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(i).
[43] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, pp. 20-22.
[44] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[45] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.
[46] Clause 182. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).
[47] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, pp. 22-24.
[48] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[49] 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.
[50] Clause 136. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv) and (v).
[51] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, pp. 24-26.
[52] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[53] Clauses 29. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[54] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, p. 26.
[55] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[56] Clauses 111 and 286. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv).
[57] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, pp. 27-28.
[58] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[59] Clause 309. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iv).
[60] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, pp. 28-29.
[61] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[62] Clause 181. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).
[63] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, pp. 29-30.
[64] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
[65] Clauses 33 and 38. The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(iii).
[66] Senate Scrutiny of Bills Committee, Scrutiny Digest 16 of 2021, pp. 30-31.
[67] The minister responded to the committee's comments in a letter dated 8 November 2021. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 17 of 2021 available at: www.aph.gov.au/senate_scrutiny_digest.
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