Nature Positive (Environment Protection Australia) Bill 2024 Nature Positive (Environment Information Australia) Bill 2024 Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 - Initial Scrutiny [2024] AUSStaCSBSD 135 (3 July 2024)

• Nature Positive (Environment Protection Australia) Bill 2024 Nature Positive (Environment Information Australia) Bill 2024 Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 202410
• Instruments not subject to an appropriate level of parliamentary oversight11
• Immunity from civil liability15
• Availability of independent merits review17

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Nature Positive (Environment Protection Australia) Bill 2024
Nature Positive (Environment Information Australia) Bill 2024
Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024^[10]

Purpose	These bills establish Environment Protection Australia as a statutory Commonwealth entity to undertake regulatory and implementation functions and the statutory position of the Head of Environment Information Australia to provide access to, assess and report on environmental information and data. Various transitional provisions and amendments to the Environment Protection and Biodiversity Conservation Act 1999 and other Acts are also made.
Portfolio	Climate Change, Energy, the Environment and Water
Introduced	House of Representatives on 29 May 2024
Bill status	Before the House of Representatives

Instruments not subject to an appropriate level of parliamentary oversight^[11]

1.11 Subclause 54(1) of the Nature Positive (Environment Protection Australia) Bill 2024 (EPA bill) seeks to provide that the CEO of Environment Protection Australia (EPA) may establish an advisory group by written instrument to provide the CEO advice or assistance in relation to the performance of the CEO’s functions and the exercise of the CEO’s powers. Subclause 54(9) seeks to provide that instruments made under subclause 54(1) are not legislative instruments. An instrument made under subclause 54(1) must also determine the terms and conditions of the appointment of the members, the terms of reference of the advisory committee and procedures to be followed while providing advice or assistance.^[12]

1.12 The establishment of committees to provide advice about matters arising under the Act in relation to the CEO’s powers and functions is a significant part of the overall legislative scheme.

1.13 A non-legislative instrument is not subject to the tabling, disallowance or sunsetting requirements that apply to legislative instruments. Noting the importance of parliamentary scrutiny, the committee expects the explanatory materials to include a justification as to why the establishment of the advisory committees has been left to non-legislative instruments. In this instance, the explanatory memorandum provides the following justification:

Such instruments would be administrative in character as they do not determine the law or alter the content of the law. Rather they deal with administrative matters relevant to setting up the advisory group and appointing members and it would be appropriate to leave such matters for the CEO to determine.^[13]

1.14 It is not clear to the committee how an instrument establishing an advisory committee that is able to provide advice on the functions and powers of the CEO is not legislative in nature, as this is a vital part of this legislative scheme. The committee also notes that while subsection 8(4) of the Legislation Act 2003 provides that an instrument is a legislative instrument if it determines or alters the law, this does not preclude this matter being set out in a legislative instrument.^[14]

1.15 In light of the above, the committee requests the minister’s advice as to why it is considered necessary and appropriate to specify that instruments made under subclause 54(1) of the Nature Positive (Environment Protection Australia) Bill 2024 are not legislative instruments (including why it is considered that the instruments are not legislative in character).

Immunity from civil liability^[15]

1.16 Clause 50 of the Nature Positive (Environment Information Australia) Bill 2024 (the EIA bill) provides that the Head of Environment Information Australia (the Head), the staff assisting the Head and persons engaged by the Secretary are not liable to actions or proceedings for damages for or in relation to an act or matter done in good faith in the performance of their functions or exercise of their powers.

1.17 This therefore removes any common law right to bring an action to enforce legal rights, unless it can be demonstrated that lack of good faith is shown. The committee notes that in the context of judicial review, bad faith is said to imply the lack of an honest or genuine attempt to undertake a task. Proving that a person has not engaged in good faith will therefore involve personal attack on the honesty of a decision-maker. As such the courts have taken the position that bad faith can only be shown in very limited circumstances.

1.18 The committee expects that if a bill seeks to provide immunity from civil liability, particularly where such immunity could affect individual rights, this should be soundly justified. In this instance, the explanatory memorandum provides:

This provision would ensure that the HEIA and persons assisting the HEIA with their functions or powers under the legislation are able to do so without fear of legal action being taken against them, as long as they act in good faith when doing so. This clause would also facilitate the provision of best available data by the HEIA, by protecting against liability for damages relating to information provided under the EIA Bill in good faith.^[16]

1.19 Although the committee acknowledges the need for the Head and other staff to be able to exercise their powers or perform their functions without fear of legal action, it is unclear to the committee how an affected individual or entity may seek recourse other than by providing evidence of a party named under clause 50 having acted in bad faith. Further, the committee queries how this clause is intended to operate as it is unclear in what circumstances a person or entity would have standing to seek action against Environment Information Australia.

1.20 The committee requests the minister’s advice as to:

• what circumstances would necessitate Environment Information Australia relying on the immunity from civil liability provided by clause 50 of the Nature Positive (Environment Information Australia) Bill 2024; and

• what recourse is available for an affected individual other than by demonstrating a lack of good faith by the Head, staff assisting the Head or persons engaged by the Secretary.

Availability of independent merits review^[17]

1.21 Item 2 of Schedule 11 to the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 seeks to introduce proposed section 474A, which would allow the minister to issue environment protection orders if the minister reasonably believes that the person has engaged, is engaging in or is likely to engage in conduct that is causing or poses an imminent risk of serious damage to the environment (or another protected matter) and that it is necessary to issue the order to ensure the person’s future compliance with legislative requirements or prevent or mitigate the damage caused or risk posed. Proposed subsection 474D(2) also imposes an obligation on the minister to revoke an environment protection order if the minister reasonably believes that the order is no longer necessary. Proposed subsection 474A(3) provides that the order can impose any requirements on the person that the minister reasonably believes are necessary for the purposes detailed above.

1.22 Proposed section 474E provides that contravening an order under proposed subsection 474A(1) can be either a fault-based or strict liability offence. Proposed subsection 474E(1) provides for a fault-based offence which carries a maximum penalty of 1,000 penalty units for an individual, while proposed subsection 474E(2) provides for a strict liability offence which carries a maximum penalty of 300 penalty units for an individual.

1.23 The committee generally expects that if a bill empowers a decision-maker to make decisions which have the capacity to affect rights, liberties or obligations, those decisions should ordinarily be subject to independent merits review. Where a bill empowers a decision-maker to make a decision which has the capacity to affect rights, liberties or obligations, the committee expects that the explanatory memorandum to the bill should address whether independent merits review is available with respect to the decision and, if not, the characteristics of the decision which justify the omission of merits review, by reference to the Administrative Review Council’s guide, What decisions should be subject to merit review?.

1.24 In this instance, the explanatory memorandum provides:

There would be no provision for a person who is subject to an environment protection order to have the order reviewed on its merits. This is necessary and appropriate because of the urgency of the circumstances in which an environment protection order would be issued, and the possibility of serious damage to the environment that may be caused by the person’s actions. Therefore, a decision to issue an environment protection order would only operate in emergency and urgent situations and it would be likely that the decision’s effect would be spent by the time of review. The Administrative Review Council has recognised that it is justifiable to exclude merits review in relation to decisions of this nature (see paragraph 4.50 of What decisions should be subject to merits review?). Judicial review would continue to be available under the Administrative Decisions (Judicial Review) Act 1977 and the Judiciary Act 1903.^[18]

1.25 In relation to the minister’s obligation to revoke an environment protection order if the minister reasonably believes the order is no longer necessary, the explanatory memorandum provides:

New subsection 474D(2) would clarify that the Minister would be required to revoke an environment protection order if they reasonably believe that the order is no longer necessary for the purposes for which it was issued. This would ensure that environment protection orders are only in force for the minimum period necessary to manage the damage, or potential damage to the environment.^[19]

1.26 The committee notes the need for urgent action in this instance, as well as the obligation on the minister to revoke an environment protection order to ensure that an order would only remain in force for the minimum period necessary to manage the damage or potential damage to the environment. However, the committee remains concerned that the only avenue to seek any review of the decision to issue an environment protection order is to seek judicial review. The committee’s concerns are heightened in this instance as the contravention of an environment protection order is associated with significant penalties, though the committee notes the justification provided that these penalties are necessary in order to maintain the integrity of the regulatory scheme and that they are broadly equivalent to penalties for similar offences under state and territory legislation.^[20]

1.27 The committee queries whether it would be possible for an affected person to seek independent review where, if under proposed subsection 474D(2), the minister has considered the necessity of an environment protection order and does not revoke the order. The committee understands that in this instance, the order would remain in force while proceedings for review could be commenced.

1.28 The committee seeks the minister’s advice as to whether independent review of the minister’s decision to not revoke an environment protection order under proposed subsection 474D(2) of the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 can be made available.

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^[10] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Nature Positive (Environment Protection Australia) Bill 2024, Scrutiny Digest 8 of 2024; [2024] AUSStaCSBSD 135.

^[11] Subclauses 54(1) and 54(9), Nature Positive (Environment Protection Australia) Bill 2024. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(v).

^[12] Subclauses 54(6) and 54(7) of the EPA bill.

^[13] Explanatory memorandum, p. 31.

^[14] Legislation Act 2003, subsection 8(4).

^[15] Clause 50 of the Nature Positive (Environment Information Australia) Bill 2024. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[16] Explanatory memorandum, p. 34.

^[17] Schedule 11, item 2, proposed subsection 474D(2) of the Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iii).

^[18] Explanatory Memorandum, p. 189.

^[19] Explanatory Memorandum, p. 191.

^[20] Explanatory memorandum, pp. 191-193.