Greenhouse and Energy Minimum Standards Amendment (Administrative Changes) Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 129 (2 August 2023)

	Home \| Databases \| WorldLII \| Search \| Feedback Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests

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
Bill status	Before the Senate

Significant matters in delegated legislation^[23]

2.41 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:

2.42 In Scrutiny Digest 7 of 2023, the committee requested the minister's 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 the commencement of the declaration.^[24]

2.43 The Minister for Climate Change and Energy (the minister) advised that it is necessary and appropriate to leave declarations of compliance to delegated legislation because of the requirement for flexibility. As the regulatory regime may quickly change due to technological advances, consumer behaviours and international and domestic markets, the minister considers it necessary to ensure that the GEMS Regulator can respond to these changes and efficiently and effectively make and implement declarations under proposed subsection 27A(1). The minister advised that as a matter of administrative and regulatory best practice, the GEMS Regulator would be able to review declarations made at any time to respond to changing regulatory settings, or on a regular basis to ensure that a declaration remains fit for purpose. The minister advised that this flexibility would also allow the GEMS Regulator to best target areas of review in the context of the entire GEMS legislative framework.

2.44 The minister further advised that the GEMS Scheme is established by the Intergovernmental Agreement for the GEMS Legislative Scheme (the IGA). The Ministerial Council responsible for the IGA maintains the Inter-Jurisdictional Advisory Committee (the IJAC) to advise the Ministerial Council. The minister advised that to exercise the powers proposed under subsection 27A(1), the GEMS Regulator would engage with the IJAC to ensure the declaration made is fit for purpose and adjust the declaration as necessary based on IJAC feedback. Finally, the minister advised that to ensure ministerial oversight of any declaration made, the Ministerial Council responsible for the IGA would need to approve the new or revised GEMS requirements and timing for their introduction.

2.46 The committee notes the minister's advice that delegated legislation is appropriate and necessary to flexibly respond to changing regulatory settings and to efficiently and effectively make and implement declarations. The committee also notes the minister's advice regarding safeguards on the exercise of proposed subsection 27A(1).

2.47 While the committee has generally not accepted a desire for flexibility to be a sufficient justification for leaving significant matters to delegated legislation, the committee nevertheless welcomes the detailed information provided by the minister in relation to the administrative processes that regulate the making of new or revised GEMS requirements. The committee considers that it would be helpful for this information to be included in the explanatory memorandum to the bill.

2.48 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).

2.49 In light of the detailed information provided by the minister, the committee makes no further comment on this issue.

[23] 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).

[24] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 7 of 2023 (21 June 2023) pp. 1–2.

[25] The minister responded to the committee's comments in a letter dated 5 July 2023. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 8 of 2023 available at: www.aph.gov.au/senate_scrutiny_digest .

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests