Nature Repair Market (Consequential Amendments) Bill 2023 - Commentary on Ministerial Responses [2023] AUSStaCSBSD 133 (2 August 2023)

• Nature Repair Market (Consequential Amendments) Bill 202357
• Broad delegation of administrative powers and functions58

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Nature Repair Market (Consequential Amendments) Bill 2023^[57]

Purpose	This bill seeks to amend the Clean Energy Regulator Act 2011 and the National Greenhouse and Energy Reporting Act 2007 to support the commencement of the Nature Repair Market Bill 2023. The bill seeks to provide a framework for a voluntary national biodiversity market that would enable eligible landholders to undertake projects that enhance or protect biodiversity in native species and receive a tradeable certificate for doing so.
Portfolio	Climate Change, Energy, the Environment and Water
Introduced	House of Representatives on 29 March 2023
Bill status	Before the House of Representatives

Broad delegation of administrative powers and functions^[58]

2.122 Item 7 of Schedule 1 to the bill seeks to insert proposed paragraphs 35(1)(f) and 35(1)(g) into the Clean Energy Regulator Act 2011 (the Act) to expand the Regulator's delegation power. The amendments allow the Regulator to delegate any of its powers and functions to a person assisting the Regulator under section 37 and who is a Senior Executive Service (SES) employee or acting SES employee, or an APS employee who holds or performs the duties of an Executive Level 2 position or an equivalent position, in the Biodiversity Department.

2.123 In Scrutiny Digest 5 of 2023 the committee requested the minister's more detailed advice as to:

• why it is considered necessary and appropriate to empower the Regulator to delegate any or all of its functions or powers to an Executive Level 2 employee in the Biodiversity Department rather than limiting the delegation to the Senior Executive Service level; and

• whether the bill could be amended to limit the functions and powers that may be delegated to an Executive Level 2 employee in the Biodiversity Department.^[59]

Minister for the Environment and Water's response^[60]

2.124 The Minister for the Environment and Water (the minister) advised that allowing the Regulator to delegate any of its powers and functions to APS employees of an Executive Level 2 will assist the ministers responsible for the Act and the Nature Repair Market bill (the NRM bill) to administer different departments.

2.125 The minister advised that the existing delegation of powers under paragraphs 35(1)(d) and (e) would only apply to officials of the Biodiversity Department responsible for the Act. The minister further noted that officers and employees of any public service agency can be made available to assist the Regulator,^[61] and for this reason it is important for the Regulator to be able to delegate its functions and powers specifically to officials of the Biodiversity Department that are responsible for, and hold expertise relevant to, the NRM bill. The minister advised that this would ensure efficiency in the administration of the NRM scheme.

2.126 The minister further advised that the approach taken within the bill is consistent with the Australian Administrative Law Guide which provides that it may be appropriate for an agency officer to make decisions, particularly where there is a limited exercise of discretion.^[62]

Committee comment

2.127 The committee thanks the minister for this response.

2.128 The committee notes the minister's advice that the delegation powers set out in the bill are necessary and appropriately limited to officials of the Biodiversity Department that hold expertise relevant to the NMR bill.

2.129 While the committee acknowledges it is sometimes appropriate to delegate powers to a wide range of staff to allow for administrative efficiency and, in line with the Administrative Law Guide, it may be appropriate for agency officers to make decisions, the committee nevertheless remains concerned about the breadth of the powers and functions that can be delegated. The committee considers that, as the bill provides for the Regulator's powers and functions to be delegated beyond the SES level to Executive Level 2 employees, it is particularly important that such persons possess the appropriate training, qualifications, skills or experience to exercise those powers or functions.

2.130 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of providing a broad power to delegate any of the Regulator's powers and functions to an Executive Level 2 employee in the Biodiversity Department.

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[57] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Nature Repair Market (Consequential Amendments) Bill 2023, Scrutiny Digest 8 of 2023; [2023] AUSStaCSBSD 133.

[58] Schedule 1, item 7, proposed paragraphs 35(1)(f) and 35(1)(g). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(ii).

[59] Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 5 of 2023 (10 May 2023) pp. 41–43.

[60] The minister responded to the committee's comments in a letter dated 21 June 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.

[61] Clean Energy Regulator Act 2011, section 37.

[62] Attorney-General's Department, Australian Administrative Law Policy Guide (4 April 2017) pp. 11‑12.