Nature Repair Market (Consequential Amendments) Bill 2023 [2023] AUSStaCSBSD 78 (10 May 2023)

• Nature Repair Market (Consequential Amendments) Bill 202394
• Broad delegation of administrative powers and functions95

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Nature Repair Market (Consequential Amendments) Bill 2023^[94]

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

Broad delegation of administrative powers and functions^[95]

1.156 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 an 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.

1.157 The committee has consistently drawn attention to legislation that allows the delegation of administrative powers to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, the committee prefers to see a limit set either on the scope of powers that might be delegated, or on the categories of people to whom those powers might be delegated. The committee's preference is that delegates be confined to the holders of nominated offices or to members of the Senior Executive Service. Where broad delegations are provided for, the committee expects the explanatory memorandum to include an explanation as to the purpose and scope of the delegated power, including why these are considered necessary, and, where a delegation extends beyond members of the Senior Executive Service, an explanation as to why this is appropriate, what safeguards are in place to ensure that any powers are appropriately delegated, and whether these safeguards are contained in law or policy.

1.158 In this instance, the explanatory memorandum states that:

Limiting delegations to officials at Executive Level 2 ensures that only persons with appropriate seniority and expertise in the Biodiversity Department would be exercising the Regulator’s powers. Delegating powers and functions to Executive Level officers is consistent with the Australian Administrative Law Guide which provides that it may be appropriate for such officers to make decisions, particularly where there is a limited exercise of discretion (such as many of the powers Regulator’s functions and powers in the NRM Bill [Nature Repair Market Bill 2023]).
Limiting delegations to officials at Executive Level 2 is also consistent with existing section 35 of the Clean Energy Regulator Act 2011 in relation to staff of the Regulator and the Department.^[96]

1.159 The explanatory memorandum further notes some safeguards to this power, including that significant decisions are intended to be made by persons of higher classifications and these limitations would be operationally imposed in the administration of the Nature Repair Market Bill 2023.^[97]

1.160 While the committee welcomes the advice that, in practice, delegations will be limited to employees with appropriate seniority and expertise in the Biodiversity Department, the committee considers it would be appropriate for the bill itself to specify or limit the functions and powers it is intended that an Executive Level 2 employee may exercise. The committee also considers that the explanatory memorandum could provide a greater justification as to why a delegation to officials at the Executive Level 2 level is necessary and appropriate rather than limiting the delegation to the Senior Executive Service, particularly given the breadth of powers that may be delegated under proposed paragraph 35(1)(g).

1.161 The committee further notes the advice that these delegation powers are consistent with the Australian Administrative Law Guide and the existing powers under section 35 of the Act. However, the committee does not generally consider consistency with existing provisions to be sufficient justification for allowing a broad delegation of administrative powers and functions.^[98]

1.162 In light of the above, the committee requests 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.

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[94] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Nature Repair Market (Consequential Amendments) Bill 2023, Scrutiny Digest 5 of 2023; [2023] AUSStaCSBSD 78.

[95] 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).

[96] Explanatory memorandum, pp. 8–9.

[97] Explanatory memorandum, p. 9.

[98] See Senate Standing Committee for the Scrutiny of Bills, Guidelines, 2nd edition (July 2022) p. 11 for further guidance.