Australian Radioactive Waste Agency Bill 2022 [2022] AUSStaCSBSD 23 (18 March 2022)

• Australian Radioactive Waste Agency Bill 2022
• Exemption from disallowance76

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Australian Radioactive Waste Agency Bill 2022

Purpose	This bill seeks to establish the Australian Radioactive Waste Agency as a non-corporate Commonwealth entity. The Bill includes administrative and foundational provisions and sets out the Agency’s functions. The Agency will be authorised to conduct activities under section 23 of the National Radioactive Waste Management Act 2012 to safely manage all radioactive material that may have waste implications for Australia and, more broadly, to ensure the safe management of all radioactive material that may have waste implications for Australia.
Portfolio	Industry, Science, Energy and Resources
Introduced	House of Representatives on 16 February 2022

Exemption from disallowance^[76]

1.97 The bill proposes to establish the Australian Radioactive Waste Agency (the Agency) as a non-corporate Commonwealth entity and to set out the Agency’s functions.

1.98 Clause 11 of the bill provides that the minister may give written directions of a general nature to the Agency about the performance of its functions. The Agency must comply with such directions.

1.99 Clause 15 of the bill provides that the minister may give written directions to the Chief Executive Officer of the Agency about the performance of the Chief Executive Officer's functions. The Chief Executive Officer must comply with such directions.

1.100 Directions given under clauses 11 and 15 are legislative instruments, however they are not subject to parliamentary disallowance. 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 or is consistent with current arrangements does not, of itself, provide an adequate justification.

1.101 In this instance, the explanatory memorandum states that directions given under clauses 11 and 15 are legislative instruments but are not subject to disallowance by virtue of section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015.^[77]

1.102 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 to be, of itself, a sufficient justification for excluding parliamentary disallowance.^[78] 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'.^[79]

1.103 This issue has been highlighted recently in the committee's review of the Biosecurity Act 2015,^[80] the inquiry of the Senate Standing Committee for the Scrutiny of Delegated Legislation into the exemption of delegated legislation from parliamentary oversight,^[81] 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.^[82] The committee therefore expects that the explanatory memorandum to a bill that authorises the making of a legislative instrument that is exempt from disallowance to specify why the exemption is appropriate in the particular circumstances, including an explanation of the exceptional circumstances that may justify an exemption.

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

• why it is considered necessary and appropriate to provide that directions given under clauses 11 and 15 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.

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[76] Part 2, clause 11 and Part 3, Division 2, clause 15. The committee draws senators’ attention to these provisions pursuant to Senate Standing Order 24(1)(a)(iv) and (v).

[77] Explanatory memorandum, pp. 9 and 10.

[78] 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.

[79] 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.

[80] See Review of exemption from disallowance provisions in the Biosecurity Act 2015: https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Bills/Completed_inquiries; First Report, Scrutiny Digest 7 of 2021, chapter 4, pp. 33-34; and Second Report, Scrutiny Digest 1 of 2022, chapter 4, pp. 76-86.

[81] 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.

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