Commentary on Amendments and Explanatory Materials [2024] AUSStaCSBSD 94 (15 May 2024)

• Commentary on amendments and explanatory materials94
• Digital ID Bill 2024
• Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024
• No-invalidity clause Availability of judicial review97

---

Commentary on amendments
and explanatory materials^[94]

Digital ID Bill 2024

1.186 On 27 March 2024, the Senate agreed to 27 Government amendments and 16 Australian Greens amendments to the bill. The Assistant Minister for Education (Senator the Hon Anthony Chisholm) tabled a supplementary explanatory memorandum relating to the Government amendments.

1.187 The Government amendments address, amongst other matters, concerns raised by the committee in Scrutiny Digest 2 of 2024^[95] and clarified by the minister in a response, commented on in Scrutiny Digest 3 of 2024.^[96]

1.188 Government amendment no. 18 replaces subclause 84(1) with new subclauses 84(1), (1A) and (1B). The effect of the amendment is to clarify that the protection from liability for accredited entities provided by the section applies only in respect of actions or other proceedings brought by other accredited entities and relying parties participating in the Australian Government Digital ID System (AGDIS) and that the protection from liability is not intended to apply more generally.

1.189 Government amendment no. 25 amends clause 145 which requires the Minister to have periodic review of legislative rules made for the charging of fees by accredited entities participating in the AGDIS. The amendment requires that the report about each review be tabled in each House of Parliament within 15 sitting days of the Minister receiving the report.

1.190 The committee welcomes these amendments which address the committee’s scrutiny concerns relating to immunity from civil liability and to the tabling of documents in the Parliament.

Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024

No-invalidity clause
Availability of judicial review^[97]

1.191 On 26 March 2024, the House of Representatives agreed to three Government amendments to the Offshore Petroleum and Greenhouse Gas Storage Legislation Amendment (Safety and Other Measures) Bill 2024 (the bill) and the Minister for Resources and Minister for Northern Australia, the Honourable Madeleine King MP, tabled a supplementary explanatory memorandum relating to the amendments. The bill as amended is yet to be considered by the Senate at time of writing.

1.192 Amendment no. 2 amended proposed section 790E of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 (OGPS Act), in item 6 of Schedule 2 to the bill. This section would enable a person whose conduct is in accordance with the OGPS Act or regulations to maintain approval under section 146D of the Environmental Protection and Biodiversity Conservation Act 1999 (the EPBC Act) even if that conduct is inconsistent with aspects of the endorsed program (which describes the process for environmental management approvals under the OGPS Act and Regulations).

1.193 The effect of agreeing to the amendment was to insert proposed subsection 790E(1A), which requires that the minister do the following prior to the Governor-General making regulations prescribed for the purposes of proposed paragraph 790E(1)(a):

• be satisfied that the designated regulations would not be inconsistent with the principles of ecologically sustainable development set out in section 3A of the EPBC Act (proposed paragraph 790E(1A)(a)); and

• consult with the Environment Minister about the designated regulations; (proposed paragraph 790E(1A)(b)); and

• have received notice from the Environment Minister that:

• the Environment Minister is satisfied that the designated regulations would not be inconsistent with the principles of ecologically sustainable development set out in section 3A of the EPBC Act (proposed subparagraph 790E(1A)(c)(i)); or

• the Environment Minister is not satisfied that the designated regulations would not be inconsistent with the principles of ecologically sustainable development set out in section 3A of the EPBC Act (proposed subparagraph 790E(1A)(c)(ii)).

1.194 However, the effect of agreeing to amendment no. 2 was to also insert proposed subsection (1D) into proposed section 790E. Proposed subsection 790E(1D) provides that a failure to comply with these new requirements as amended does not affect the validity or enforceability of regulations made under the OGPS Act.

1.195 A legislative provision that indicates that an act done or decision made in breach of a particular statutory requirement or other administrative law norm does not result in the invalidity of that act or decision, may be described as a ‘no-invalidity’ clause. There are significant scrutiny concerns with no-invalidity clauses, as these clauses may limit the practical efficacy of judicial review to provide a remedy for legal errors. The committee therefore expects a sound justification for the use of a no‑invalidity clause to be provided in the explanatory memorandum.

1.196 In this instance, the supplementary explanatory memorandum relating to the government amendments states:

The effect of subsection 790E(1D) is that if the Environment Minister provides notice that they are not satisfied that the designated regulations would not be inconsistent with the ESD principles, or if a notice is not given, this would not affect the validity or enforceability of regulations made under the OPGGS Act. Likewise, the validity or enforceability of regulations made under the OPGGS Act will not be affected if the Resources Minister is not satisfied that the designated regulations would not be inconsistent with the ESD principles, or fails to consult with the Environment Minister as required by paragraphs (1A)(a) and (b).

...

Subsection 790E(1D) does not exclude judicial review under section 75(v) of the Constitution or section 39B of the Judiciary Act 1903 where a failure to meet procedural requirements would amount to a jurisdictional error.^[98]

1.197 While noting the advice that judicial review remains available where a failure to meet procedural requirements would amount to a jurisdictional error, the committee queries the practical efficacy of judicial review. This is because the conclusion that an instrument is valid irrespective of whether procedural requirements to the making of the instrument were followed means that the instrument-maker had the power (i.e. jurisdiction) to make it. Therefore, review of the instrument on the grounds of jurisdictional error is unlikely to be available. The result is that some of judicial review's standard remedies will not be available.

1.198 In addition, the supplementary explanatory memorandum provides the following justification for the inclusion of a no-invalidity clause:

Subsection 790E(1D) is consistent with section 19 of the Legislation Act. The purpose of this provision is to avoid any risk of subsection 790E(1A) affecting the validity or enforceability of the prescribed regulations. The Environment Regulations are intended to be prescribed for the purposes of paragraph 790E(1)(a). The Environment Regulations provide for the environmental management of offshore petroleum and greenhouse gas storage activities. The object of the Environment Regulations is to ensure that activities are carried out in a manner that is consistent with the ESD principles by which the environmental impacts and risks of the activity will be reduced to as low as reasonably practicable and an acceptable level. As such, it is important that the ongoing validity of the Environment Regulations is maintained.^[99]

1.199 The committee acknowledges that section 19 of the Legislation Act 2003 (the Legislation Act) is a no-invalidity clause relating to the requirement under section 17 of the Legislation Act for rule-makers to consult before making legislative instruments.

1.200 However, the committee is of the view that the specific procedural requirements to be imposed on the minister under proposed subsection 790E(1A) of the OGPS Act are not analogous to the broad consultation requirement applied to all legislative instruments under section 17 of the Legislation Act. This is made clear by the construction of the relevant clauses. For instance, the heading to section 17 is ‘Rule-makers should consult before making legislative instruments’, and the procedural requirement imposed by the section is for the rule-maker to be satisfied that consultation has been undertaken that is ‘considered by the rule-maker to be appropriate’. In circumstances where only a weak obligation is imposed on a rule‑maker (to be satisfied that such consultation has been undertaken as they consider appropriate), a provision that states that the fact that consultation does not occur does not affect the validity or enforceability of the instrument may be viewed as declaratory and of limited concern.

1.201 On the other hand, the consultation requirements prescribed in proposed subsection 790E(1A) are specifically tailored to the relevant circumstances of legislative instruments to be made for the purposes of proposed paragraph 790E(1)(a) and are aimed at achieving a particular purpose. In this regard, it can be considered that the consultation requirements set out in these amendments are not analogous with the consultation required by section 17 of the Legislation Act.

1.202 Further, the committee notes the uncertainty that the no-invalidity clause creates in instances where an instrument made under these provisions is subject to judicial review, and whether or not an injunction could be issued by the court to restrain reliance on instruments that may be declared unlawful.

1.203 The committee seeks the minister’s advice as to:

• why the validity of instruments made for the purposes of proposed paragraph 790E(1)(a) of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 should not be conditional on compliance with the requirements in proposed subsection 790E(1A), noting the specificity of these requirements and the significance of the statutory purposes underpinning them; and

• whether the minister would be obliged to remake the instrument in circumstances where a court declared that the instrument, although valid in consequence of proposed subsection 790(1D), was made in breach of the legal requirements set out in subsection 790(1A).

The committee makes no comment on amendments made or explanatory materials relating to the following bills:

• Competition and Consumer Amendment (Fair Go for Consumers and Small Business) Bill 2024

• On 21 March 2024, the Senate agreed to one Opposition amendment to the bill;

• Treasury Laws Amendment (Making Multinationals Pay Their Fair Share—Integrity and Transparency) Bill 2023

• On 27 March 2024, the Senate agreed to 89 Government amendments (one as amended by an Australian Greens amendment), 2 Pauline Hanson’s One Nation amendments and 2 Independent (Senator David Pocock) amendments to the bill. The Assistant Minister for Education, Senator the Honourable Anthony Chisholm, tabled a supplementary explanatory memoranda relating to the Government amendments; and

• Treasury Laws Amendment (Support for Small Business and Charities and Other Measures) Bill 2023

• On 27 March 2024, the Senate agreed to 6 Opposition amendments to the bill.

---

^[94] This report can be cited as: Senate Standing Committee for the Scrutiny of Bills, Commentary on amendments and explanatory materials, Scrutiny Digest 6 of 2024; [2024] AUSStaCSBSD 94.

^[95] Senate Scrutiny of Bills Committee, Scrutiny Digest 2 of 2024 (7 February 2024), pp. 29–31.

^[96] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2024 (28 February 2024), pp. 72–74.

^[97] Schedule 2, Part 2, item 6, proposed subsection 790E(1D) of the Offshore Petroleum and Greenhouse Gas Storage Act 2006. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(iii).

^[98] Supplementary explanatory memorandum, p. 5.

^[99] Supplementary explanatory memorandum, p. 5