Greenhouse and Energy Minimum Standards Amendment (Administrative Changes) Bill 2023 [2023] AUSStaCSBSD 107 (21 June 2023)

• Greenhouse and Energy Minimum Standards Amendment (Administrative Changes) Bill 20231
• Significant matters in delegated legislation2

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Chapter 1

Initial scrutiny

The committee comments on the following bills and, in some instances, seeks a response or further information from the relevant minister.

Greenhouse and Energy Minimum Standards Amendment (Administrative Changes) Bill 2023^[1]

Purpose	This bill seeks to amend the Greenhouse and Energy Minimum Standards Act 2012 to improve the Greenhouse and Energy Minimum Standards Regulator performance and reduce administrative burden.
Portfolio	Climate Change and Energy
Introduced	Senate on 15 June 2023

Significant matters in delegated legislation^[2]

1.1 Item 5 of Schedule 1 to the bill seeks to insert proposed subsection 27A(1) into the Greenhouse and Energy Minimum Standards Act 2012 (the Act) to allow the Greenhouse and Energy Minimum Standards Regulator (the GEMS Regulator) to, by legislative instrument, declare that specified classes of products or specified models of GEMS products are taken to comply with one or more requirements, or one or more aspects of requirements, of a specified GEMS determination in specified circumstances or if specified conditions are complied with.

1.2 The committee's consistent scrutiny view is that significant matters should be included in primary legislation unless a sound justification for the use of delegated legislation is provided. The committee notes that a determination made by the GEMS Regulator would mean that a specified class or model of products are deemed to comply with requirements specified in a determination made by the Minister under section 23 of the Act.

1.3 In this instance, the explanatory memorandum states:

The ability for the GEMS Regulator to prescribe such matters in a legislative instrument made under the Act is consistent with good regulatory practice. Over time, technological advances and consumer behaviours are likely to necessitate changes to how products are regulated under the Act. Furthermore, different products will have different requirements. Those requirements are in turn subject to change due to technological advances, consumer behaviours and changes in relevant international and domestic markets for specific products and applicable regulatory frameworks. Allowing a legislative instrument to prescribe such matters provide the necessary flexibility to quickly respond to changes in the regulatory regimes.^[3]

1.4 While acknowledging the information provided in the explanatory memorandum, the committee generally expects there to be appropriate safeguards within the primary legislation that limit the matters that are being left to delegated legislation. In this regard, the committee welcomes the inclusion in the bill of proposed subsection 27A(3) to constrain the Regulator's declaration making power. This proposed subsection provides that the GEMS Regulator must not make a declaration unless satisfied that making the declaration is likely to promote the objects of the Act and the requirements (if any) prescribed by the regulations are complied with.

1.5 The committee considers, however, that it may be appropriate to amend the bill to provide for the conduct of a review of the operation of declarations made under proposed subsection 27A(1) within a specified time, for example, within three years of commencement of the declaration. This would ensure it remains fit for purpose and would allow for the consideration of whether it would be more appropriate to amend the Minister's GEMS determination to reflect the content of the Regulator's declaration.

1.6 In light of the above, the committee requests the minister's detailed advice as to whether the bill can be amended to provide for a review of the operation of declarations made under proposed subsection 27A(1) within a specified time, for example within three years of commencement of the declaration.

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^[1] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Greenhouse and Energy Minimum Standards Amendment (Administrative Changes) Bill 2023, Scrutiny Digest 7 of 2023; [2023] AUSStaCSBSD 107.

^[2] Schedule 1, Part 2, item 5, proposed subsection 27A(1). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iv).

^[3] Explanatory memorandum, p. 7.