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Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests |
2.1 This chapter considers the responses of ministers to matters previously raised by the committee.
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Purpose
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This bill seeks to amend the Atomic Energy Act 1953 to allow the
Minister to preserve the regulatory framework that applies to the Ranger Uranium
Mine in the Northern Territory.
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Portfolio
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Industry, Science and Resources
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Introduced
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House of Representatives on 8 September 2022
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Bill status
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Before the House of Representatives
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2.2 The bill provides for the variation and revocation of Part III authorities, which may authorise operations, impose requirements and set conditions for specified activities in relation to the Ranger Uranium Mine (Ranger). Proposed section 41CK allows the minister, by writing, to vary a Part III authority in response to a failure to comply with an authority,[2] to extend the time period in which an authority is in force,[3] to ensure continued effective operation of an authority,[4] or to specify close-out conditions.[5] In addition, proposed subsection 41CR(1) provides that the minister may, by writing, revoke an authority conferred under section 41 if satisfied of certain matters. The bill does not provide for a decision made by the minister under proposed subsections 41CK(1) to (5) and proposed subsection 41CR(1) (the proposed variation provisions) to be independently merits reviewed.
2.3 In Scrutiny Digest 5 of 2022 the committee requested the minister's advice as to why merits review will not be available in relation to a decision to vary, or revoke, an authority under the proposed variation provisions. 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?.[6]
Minister's response[7]
2.4 The minister advised that, given the limited scope for decisions to vary or revoke a Part III authority and consultation processes, she does not consider that merits review is necessary for decisions made under the proposed variation provisions.
2.5 The minister advised that the proposed variation provisions provide only a narrow scope to vary a Part III authority and are limited to technical or procedural decisions. For example, the proposed variation provisions would not permit the minister to vary the substantive rehabilitation obligations imposed on the mine operator, or the roles and responsibilities of other stakeholders. Because of this limited scope, the minister advised that decisions to vary or revoke a Part III authority would fall into the category of decisions for which there may not be an effective remedy available and which are therefore not suitable for review.
2.6 The minister noted that the purpose of the bill is to preserve regulatory arrangements at Ranger and to support Ranger's rehabilitation and closure. The minister advised that this means that decisions can only be made in respect of a Part III authority to rehabilitate Ranger to the required standard and are therefore beneficial to all parties. The minister also advised that only a limited number of stakeholders will be affected by such decisions as there is only one Part III authority in existence at any one time.
2.7 The minister further advised that variation or revocation can only occur following significant inquiry and consultation processes, and if agreement with the land's Traditional Owners is in effect and the variation is not inconsistent with the Commonwealth's obligations under that agreement. The minister advised that the extensive consultation process involved in making a decision would be a further factor against external merits review, in line with the Administrative Review Council's guidance document, What decisions should be subject to merit review?.
2.8 In relation to proposed subsection 41CR(1), the minister advised that this provision is intended to preserve the ability of the holder of a historic section 41 authority to request revocation under existing section 41A and therefore merits review is not appropriate.
2.9 Finally, the minister advised that, in the context of the limited scope for decisions and extensive consultation, the costs of review would not be justified.
Committee comment
2.10 The committee thanks the minister for this response.
2.11 The committee notes the minister's advice that, given the extensive consultation process involved in making a decision to revoke or vary a Part III authority, such decisions are unsuitable for merits review. The minister's response also highlighted two further exceptions with reference to the Administrative Review Council's guidance document, What decisions should be subject to merit review?. However, the committee notes that it would have been helpful if the advice provided by the minister had justified the grounds for exception, rather than merely stating that these exceptions applied.
2.12 For example, the minister advised that decisions made under the proposed variation provisions are unsuitable for merits review on the basis that the costs of the review would not be justified. The Administrative Review Council's guidance document provides that this exception would apply where the cost of merits review would be vastly disproportionate to the significance of the decision under review.[8] As such, the committee expects any claim that this exception applies to explain why the costs of review cannot be justified. In addition, it is unclear to the committee why the minister has advised that there is no effective remedy available due to the limited scope of the decision. The committee notes that this exception concerns decisions where, for example, a decision has been taken and the results are irrevocable, or where decisions operate for such a short period that their effect would be spent by the time of review. It is not clear to the committee from the explanation provided that decisions to vary or revoke a Part III authority are captured by either of these scenarios.
2.13 The committee also notes the minister's advice that only limited stakeholders will be affected by decisions to vary or revoke a Part III authority, and that such decisions will be beneficial to all parties. The committee shares the view of the Administrative Review Council that, as a matter of principle, 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 required.
2.14 In relation to proposed section 41CR(1), the committee takes this opportunity to emphasise that it does not generally consider consistency with existing provisions to be sufficient justification for excluding merits review.
2.15 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of not providing for external merits review of decisions made by the minister to vary or revoke a Part III authority under proposed subsections 41CK(1) to (5) and proposed subsection 41CR(1).
2.16 Proposed section 41CU provides that a Part III authority may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing from time to time.
2.17 In Scrutiny Digest 5 of 2022 the committee requested the minister's advice as to whether documents incorporated by reference will be freely and readily available to all persons interested in the law.[10]
Minister's response[11]
2.18 The minister advised that the ability to incorporate a document by reference would provide for more transparency and efficiency in decision making. The minister noted that this may, for example, include closure criteria used to determine if the mine operator has achieved its rehabilitation obligations.
2.19 The minister also advised that many of the documents incorporated by reference are or will be publicly available. In relation to the above example, the minister advised that these criteria would be specified in the mine operator's publicly available Mine Closure Plan and would not create uncertainty in the law. Further, the minister advised that the mine operator would not have inadequate access to the terms of incorporated documents as decisions, including to incorporate a document by reference, will only occur after consultation with stakeholders.
Committee comment
2.20 The committee thanks the minister for this response. In relation to whether documents incorporated by reference will be freely and readily available to all persons interested in the law, the committee notes the minister's advice that many of these documents will be publicly available. However, it remains unclear as to whether all incorporated documents will be publicly available and where a relevant incorporated document may be accessed. Further, while the committee welcomes the minister's advice that closure criteria incorporated by reference will be specified in the mine operator's publicly available Mine Closure Plan, the committee notes that this is not a requirement set out on the face of the bill.
2.21 The committee also notes the minister's advice that decisions, including to incorporate a document by reference, will only occur after consultation with stakeholders. The committee notes that the minister's response focuses on the access to the documents by the mine operator and other key stakeholders, which may exclude access by other persons who are interested in the terms and operation of the law. The committee therefore reiterates its consistent scrutiny view that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law. The committee considers that where it is proposed to incorporate external material into the law, the explanatory memorandum for the bill should, at a minimum, contain an undertaking that the material will be freely and readily available in all circumstances. If it is not possible to do this, the committee expects that the explanatory memorandum state this clearly and explain why it is not possible and why it is nevertheless justifiable to allow external incorporation of non‑legislative materials.
2.22 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of including a power to incorporate external materials as in force from time to time in circumstances where incorporated materials may not be freely and readily available.
[1] Schedule 1, item 18, proposed subsections 41CK(1)–(5) and 41CR(1). The committee draws senators' attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iii).
[2] Proposed subsection 41CK(1).
[3] Proposed subsection 41CK(2).
[4] Proposed subsection 41CK(3).
[5] Proposed subsection 41CK(4).
[6] Senate Standing Committee for the Scrutiny of Bills Committee, Scrutiny Digest 5 of 2022,
pp. 1–2.
[7] The minister responded to the committee's comments in a letter dated 12 October 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 6 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.
[8] See Chapter 4 of the Administrative Review Council, What decisions should be subject to merit review?, January 1999.
[9] Schedule 1, item 18, proposed section 41CU. The committee draws senators' attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).
[10] Senate Standing Committee for the Scrutiny of Bills Committee, Scrutiny Digest 5 of 2022, p. 3.
[11] The minister responded to the committee's comments in a letter dated 12 October 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 6 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.
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URL: http://www.austlii.edu.au/au/other/AUSStaCSBSD/2022/108.html