Offshore Petroleum (Laminaria and Corallina Decommissioning Cost Recovery Levy) Bill 2021 [2022] AUSStaCSBSD 40 (18 March 2022)

• Offshore Petroleum (Laminaria and Corallina Decommissioning Cost Recovery Levy) Bill 2021
• Modified disallowance procedures41

---

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
Bill status	Currently before the House of Representatives

Modified disallowance procedures^[41]

2.84 In Scrutiny Digest 17 of 2021 the committee requested 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.^[42]

Treasurer's response^[43]

2.85 The Treasurer advised:

I can advise that it is not necessary to amend the Bill as requested. As section 12 of the Bill does not override, and is not intended to override, the usual operation of subsection 42(2) of the Legislation Act 2003 (Legislation Act), this already achieves the outcome sought by the Committee. Further, section 44 of the Legislation Act already provides the circumstances in which section 42 of the Legislation Act does not apply and those circumstances are not satisfied by subclause 12 of the Bill.
The Bill states that an instrument made under subsection 7(2) or 8(2) will take effect on the day immediately after the last day upon which such a resolution could have been passed. This takes into account both the period for either House of Parliament to give a notice of a motion to disallow, and the period to resolve that motion.
In other words, an instrument will take affect after there is no longer a possibility that either House may pass a resolution to disallow the instrument or provision specified in the motion. For example, if a notice of a motion to disallow is placed on the instrument on the 15th sitting day, then the instrument will not commence until the day after that motion has been finally resolved unless the instrument or a provision is disallowed.
Finally, I note that as the Bill does not reference or override the operation of section 42 of the Legislation Act, which is a provision of general application across the entire Commonwealth statute book, it would be inappropriate to explain the function of those provisions of the Legislation Act in the explanatory memorandum to this Bill.

Committee comment

2.86 The committee thanks the Treasurer for this response. The committee notes the Treasurer's advice that clause 12 of the bill does not override, and is not intended to override, the usual operation of subsection 42(2) of the Legislation Act 2003 (Legislation Act). The Treasurer advised that, as a result, it is not necessary to amend the bill to clarify that clause 12 does not override the Legislation Act.

2.87 The committee reiterates its view that the usual parliamentary disallowance process is one of the primary means by which Parliament exercises control of its delegated legislative power. As previously noted by the committee, Odgers' Australian Senate Practice states that subsection 42(2) of the Legislation Act 'greatly strengthens the Senate in its oversight of delegated legislation'.^[44]

2.88 Given the importance of the usual disallowance procedure to parliamentary scrutiny, the committee is concerned with any provision which introduces legislative ambiguity into the disallowance process. While welcoming the Treasurer's advice that the bill is not intended to override the operation of subsection 42(2) of the Legislation Act, the committee considers that it is necessary to more explicitly reflect this intention in the bill and its accompanying explanatory memorandum so as to put the intended limited statutory purpose of clause 12 beyond doubt.

2.89 In light of the above, the committee requests the Treasurer's more detailed 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; or

• whether, at a minimum, an addendum to the explanatory memorandum could be tabled in the Parliament stating that clause 12 of the bill is not intended to override the usual operation of subsection 42(2) of the Legislation Act 2003 with respect to automatic disallowance of an instrument where a disallowance motion is not resolved at the end of the disallowance period.

---

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

[42] Senate Scrutiny of Bills Committee, Scrutiny Digest 17 of 2021, pp. 35-36.

[43] The minister responded to the committee's comments in a letter dated 2 March 2022. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 2 of 2022 available at: www.aph.gov.au/senate_scrutiny_digest.

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