Nature Positive (Environment Protection Australia) Bill 2024 Nature Positive (Environment Information Australia) Bill 2024 Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 184 (11 September 2024)

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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 Senate

Instruments not subject to an appropriate level of parliamentary oversight^[104]

2.92 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.^[105]

2.93 In Scrutiny Digest 8 of 2024 the committee requested the minister’s advice as to the necessity and appropriateness of specifying that instruments made under subclause 54(1) are not legislative instruments, including why the instruments are not considered legislative in character.^[106]

Minister for the Environment and Water’s response^[107]

2.94 The minister advised that an instrument which establishes an advisory group would not determine the law or alter the content of the law as such a group is unable to make, give content to, or affect the content of any laws. As such, the minister concluded that, for this reason, ‘an instrument to establish an advisory group should not be considered legislative in character.’

2.95 The minister also advised that these instruments are not appropriate as legislative instruments as they only function in relation to purely administrative matters for the establishment of an advisory group. As the instruments would not create rights, obligations, privileges, nor other characteristics found in legislative instruments, the minister concluded that it is appropriate that the instruments made under subclause 54(1) would not be considered legislative in character.

Committee comment

2.96 The committee thanks the minister for this advice and the notes the minister’s advice that an instrument under subclause 54(1) would only establish the advisory group and not alter or determine the content of the law.

2.97 In light of the minister’s advice, the committee considers its scrutiny concerns have been addressed and makes no further comment in relation to this matter.

Immunity from civil liability^[108]

2.98 The Nature Positive (Environment Information Australia) Bill 2024 (the EIA bill) seeks to provide 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.

2.99 In Scrutiny Digest 8 of 2024 the committee requested the minister’s advice as to the circumstances requiring immunity to civil liability as provided by clause 50 of the Nature Positive (Environment Information Australia) Bill 2024 as well as the options of recourse available for affected individuals besides demonstrating a lack of good faith by the Head, staff assisting the Head or persons engaged by the Secretary.^[109]

Minister for the Environment and Water’s response^[110]

2.100 The minister advised that the Head of Environment Information Australia (the Head) would be responsible for providing information and data to a range of stakeholders and the public, and this role creates the potential for civil proceedings seeking damages. The minister provided examples of instances which may lead to such proceedings, such as a person or entity alleging that harm has been caused by the unauthorised disclosure of protected information, breach of copyright or intellectual property rights, or breaches of confidence or defamation. The minister also provided an example of individuals relying on information, or the absence of information, provided by Environment Information Australia (EIA) in good faith to their detriment, and attempted to recover their losses against the Head or persons assisting the Head.

2.101 The minister advised that without protection from civil liability, individuals may be reluctant to be appointed to roles within the EIA for fear of personal liability in relation to acts or omissions relating to their performance of functions or exercise of powers, even those done in good faith. The minister also advised that it is important high quality environmental information and data can be made available to inform policy, project, investment and regulatory decision-making.

2.102 The minister also noted that acts or omissions not performed in good faith would not be provided immunity from civil liability. Further, the immunity does not extend to immunity from criminal proceedings. The minister finally advised that an affected individual would be able to make a complaint to the Commonwealth Ombudsman.

Committee comment

2.103 The committee thanks the minister for this advice. The committee notes the minister’s advice regarding the necessity of this immunity and the examples of the circumstances the immunity is seeking to avoid. The committee appreciates the importance of ensuring the Head of the EIA is not held personally liable, noting the difficulty otherwise in filling the role. The committee also welcomes the advice that affected individuals would be able to make a complaint to the Commonwealth Ombudsman.

2.104 However, the committee notes that this immunity would appear to leave a person affected by the actions of the Head, or their staff, in disclosing confidential information, or defamatory information, so long as this was done in good faith, without any remedy. The minister’s response did not indicate any recourse for any potential harm done other than the ability to complain to the Ombudsman, but the committee notes that the Ombudsman has no powers other than to make recommendations, which would not necessarily ensure an affected person would receive a remedy.

2.105 The committee understands that where power is conferred on a named officer of the Commonwealth, such that the officer exercises the power independently, then the employer (the Commonwealth) is not vicariously liable for the actions of that officer.^[111] Therefore, in this instance, the Head, others assisting the Head as part of the EIA, and by implication the Commonwealth more broadly, are immune from liability for civil proceedings.

2.106 The committee notes that in some instances, this principle regarding the liability of the Commonwealth has been abrogated in statute. One example is in relation to officers of the Australian Federal Police, where the Commonwealth is held to be liable in tort for the actions of individual officers (but not the officer personally).^[112] The committee notes that in order to ensure affected persons are able to seek legal remedy, it would be possible for a similar provision to be included in the bill to provide that the Commonwealth is liable in respect of a tort committed by the Head, staff assisting the Head and persons engaged by the Secretary, while ensuring no personal liability applies to those persons.

2.107 The committee draws this matter to the attention of senators and leaves to the Senate as a whole the appropriateness of providing immunity from civil liability to individuals in circumstances where there appears to be no provision for an affected person to seek a remedy against the Commonwealth itself.

Availability of independent merits review^[113]

2.108 The Nature Positive (Environment Law Amendments and Transitional Provisions) Bill 2024 seeks to introduce a provision 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. This provision 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. The environment protection order can impose any requirements on the person that the minister reasonably believes are necessary for the purposes detailed above. Contravening an order under this provision can be either a fault-based or strict liability offence.

2.109 In Scrutiny Digest 8 of 2024 the committee requested the minister’s advice on whether an independent review of the minister’s decision to not revoke an environment protection order, under proposed subsection 474D(2), can be made available.^[114]

Minister for the Environment and Water’s response^[115]

2.110 The minister advised that merits review is not appropriate as subsection 474D(2) is a mandatory decision arising from a statutory obligation to act in a certain manner on the instance of a specified set of circumstances. The minister provided further explanation, stating, ‘if the Minister reasonably believes that the environment protection order is no longer necessary, the Minister must revoke the order; that is, the revocation would be mandatory’.

2.111 However, should the minister reasonably believes that the environment protection order is still necessary then it would mean that the urgent circumstances which caused the order to be issued are ongoing. In this circumstance, the minister advised it is necessary and appropriate to exclude merits review due to the urgency of the situation, and the potential for serious damage to the environment caused by a person’s actions. These factors mean that it is likely the decision’s effect would be spent by the time of review.

Committee comment

2.112 The committee thanks the minister for this advice. Although the committee notes that there is a statutory obligation to act in a certain way (that is, to revoke the environment protection order), this is contingent on the minister’s reasonable belief that the order is no longer necessary for the purposes it was issued for. As such, the consideration of whether the order remains necessary is a decision that is amenable to merits review, noting it is not one that automatically follows from the happening of a set of circumstances.

2.113 The committee remains concerned that there is no means of independently reviewing whether the minister’s belief that the environmental protection order is still necessary is reasonable. The committee’s concerns relate to the minister deciding not to revoke an environment protection order, not to the initial making of the order. As such, the committee does not agree that the decision’s effect would be spent by the time of the review, as at that time the order would remain on foot. Further, the urgency of the situation would not appear to preclude merits review, noting that the order would remain in force during the review.

2.114 The committee therefore remains concerned that independent review of the minister’s decision not to revoke an environment protection order^[116] would not be available, and draws this matter to the attention of senators and leaves the appropriateness of this to the Senate as a whole.

^[104] Subclauses 54(1) and 54(9), EPA bill. The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(v).

^[107] The minister responded to the committee’s comments in a letter dated 13 August 2024 (received on 26 August 2024). A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 11 of 2024).

^[108] Clause 50. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

^[110] The minister responded to the committee’s comments in a letter dated 13 August 2024 (received on 26 August 2024). A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 11 of 2024).

^[113] Schedule 11, item 2, proposed subsection 474D(2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iii).

^[115] The minister responded to the committee’s comments in a letter dated 13 August 2024 (received on 26 August 2024). A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 11 of 2024).

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