House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Hon Mark Dreyfus KC MP)

SCHEDULE 3 - CLIMATE CHANGE, ENERGY, THE ENVIRONMENT AND WATER

OUTLINE

208. Schedule 3 contains consequential amendments to the following Acts in the Climate Change, Energy, Environment and Water portfolio:

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Antarctic Treaty (Environment Protection) Act 1980

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Carbon Credits (Carbon Farming Initiative) Act 2011

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Environment Protection and Biodiversity Conservation Act 1999

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Fuel Quality Standards Act 2000

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Great Barrier Reef Marine Park Act 1975

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National Greenhouse and Energy Reporting Act 2007

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Renewable Energy (Electricity) Act 2000

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Water Efficiency Labelling and Standards Act 2005

AMENDMENTS

General terminology changes

209. A number of items in this Schedule make simple terminology changes, such as repealing outdated references to the Administrative Appeals Tribunal, the AAT and the Administrative Appeals Tribunal Act 1975, and replacing them with references to the Administrative Review Tribunal, the ART and the Administrative Review Tribunal Act 2024. These amendments ensure that the Tribunal has jurisdiction to review decisions that are reviewable by the AAT, and that the relevant provisions continue to operate in substantively the same way in the new Tribunal.

Antarctic Treaty (Environment Protection) Act 1980

Item 1: Subsections 28(1) and (1A)

Terminology change

210. This item amends terminology. See explanation of general terminology changes above.

Item 2: Subsection 28(1A)

Updating legislative reference

211. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Subsection 41(2) of the AAT Act provides that the AAT may make orders staying or otherwise affecting the implementation of a decision that is under review by the AAT. This matter is prescribed in subclause 32(2) of the ART Bill.

212. Subsection 28(1A) of the Antarctic Treaty (Environment Protection) Act 1980 prevents the AAT from making a stay order for certain types of decisions under that Act. Those decisions include decisions by the Minister to vary, suspend or revoke an authorisation to carry on an activity if satisfied that doing so would be consistent with basic environmental principles, or to prevent irreversible environmental damage.

213. It would not be appropriate to allow the Tribunal to make orders staying or otherwise affecting the implementation of such decisions. This would allow a person to undertake the activity, potentially causing irreversible harm to the environment.

214. This amendment is technical in nature and ensures subsection 28(1A) of the Antarctic Treaty (Environment Protection) Act 1980 continues to operate in substantively the same way in relation to the Tribunal.

Item 3: Subsection 28(2)

Terminology change

215. This item amends terminology. See explanation of general terminology changes above.

Carbon Credits (Carbon Farming Initiative) Act 2011

Item 4: Subsection 164(3)

Terminology change, and interaction with the guidance and appeals panel

216. This item amends terminology. See explanation of general terminology changes above.

217. Paragraph 164(3)(f) of the Carbon Credits (Carbon Farming Initiative) Act 2011 prescribes that, if a certain decision under that Act is subject to a review by the AAT, the Regulator must publish an appropriate annotation on the Regulator's website when the AAT review is 'finalised'.

218. This item replicates that provision, substituting reference to the AAT with reference to the ART.

219. Of relevance to the operation of paragraph 164(3)(f) of the Carbon Credits (Carbon Farming Initiative) Act 2011, Part 5 of the ART Bill establishes a guidance and appeals panel within the Tribunal. The guidance and appeals panel will have the power to review and determine Tribunal decisions referred to it by the President that may contain a material error of fact or law, or that raise an issue of significance to administrative decision-making. A party may apply to the President under clause 123 of the ART Bill to refer a decision of the Tribunal made under clause 105 to the guidance and appeals panel. If the President refers the decision to the guidance and appeals panel, it will conduct a full merits review of the decision de novo.

220. For the purposes of paragraph 164(3)(f) of the Carbon Credits (Carbon Farming Initiative) Act 2011, review of the decision by the Tribunal would not be 'finalised' until the below scenarios occur:

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If a party appeals the Tribunal's decision on question of law to a court, or applies to have the decision referred to the guidance and appeals panel, the later of:

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the completion of the relevant appeal (for example, if a matter is reviewed by the guidance and appeals panel and a party appeals the decision to the court – when the appeal to the court is completed), or

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the period in which an appeal can be made concludes (for example, if a matter is reviewed by the guidance and appeals panel and a party does not appeal the decision to the court – when the period in which an appeal can be made to the court concludes).

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Where no appeal is made to the guidance and appeals panel or a court, when the period within which appeals (to a court or the guidance and appeals panel) can be made concludes.

Items 5, 6, 7 and 8: Section 239, section 244 (heading), subsections 244(1) and (2), and paragraphs 245(1)(e) and 2(b)

Terminology changes

221. These items amend terminology. See explanation of general terminology changes above.

Environment Protection and Biodiversity Conservation Act 1999

Items 9 and 10: Subsections 206A(1), 221A(1), 243A(1), 263A(1), 303GJ(1) and paragraph 472(2)(a)

Terminology change

222. These items amend terminology. See explanation of general terminology changes above.

Item 11: Paragraph 472(2)(b)

Updating legislative reference

223. This item removes the reference to section 28 of the AAT Act. Section 28 of the AAT Act (and clause 268, the equivalent provision in the ART Bill) provides that, subject to exceptions, people whose interests are affected by the reviewable decision may seek a statement of reasons for the decision. By removing the pinpoint reference to section 28 of the AAT Act, and instead referring generally to a statement in relation to a decision under the ART Bill, this item ensures that paragraph 472(2)(b) of the Environment Protection and Biodiversity Conservation Act 1999 continues to operate in substantively the same way in relation to the Tribunal.

Items 12 and 13: Section 473 (heading) and subsection 473(1)

Terminology change

224. These items amend terminology. See explanation of general terminology changes above.

Item 14: Subsection 473(2)

Updating legislative reference

225. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provisions of the ART Bill. Section 27 of the AAT Act provides that a person whose interests are affected by a reviewable decision, including if the person is the Commonwealth or a statutory authority, may apply to the Tribunal for review of the decision. This matter is prescribed in clauses 17 and 35 of the ART Bill.

226. Subsection 473(2) of the Environment Protection and Biodiversity Conservation Act 1999 provides that despite section 27 of the AAT Act, applications may not be made to the AAT by or on behalf of Commonwealth agencies, for review of decisions to give advice about whether an action would contravene a conservation order over a Commonwealth area under the Act. It is not appropriate for Commonwealth agencies to apply to the Tribunal for review of these decisions, because the decision itself was made by the Department administering the Environment Protection and Biodiversity Conservation Act 1999.

227. This amendment is technical in nature and ensures subsection 473(2) of the Environment Protection and Biodiversity Conservation Act 1999 continues to operate in substantively the same way in relation to the Tribunal.

Fuel Quality Standards Act 2000

Item 15: Subsection 35(4)

Terminology change

228. This item amends terminology. See explanation of general terminology changes above.

Item 16: Subsections 70(1) and (2)

Terminology change

229. This item amends terminology. See explanation of general terminology changes above.

Item 17: Subsection 70(2)

Updating legislative reference

230. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 27 of the AAT Act provides that a person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision. This matter is prescribed in clause 17 and clarified in clause 15 of the ART Bill.

231. Subsection 70(2) of the Fuel Quality Standards Act 2000 provides that the meaning of the term 'person whose interests are affected' in section 27 of the AAT Act is extended by subsections 70(3) and (4).

232. This amendment is technical in nature and ensures subsection 70(2) of the Fuel Quality Standards Act 2000 continues to operate in substantively the same way in relation to the Tribunal.

Great Barrier Reef Marine Park Act 1975

Items 18, 19, 20 and 21: Subsection 3(1) (definition of AAT ), subsection 3(1), section 39M (heading) and subsection 39M(1)

Terminology changes

233. These items amend terminology. See explanation of general terminology changes above.

Item 22: Subsection 39M(2)

Updating legislative reference

234. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 29 of the AAT Act prescribes when an application for review of a decision must be lodged with the AAT. Clause 18 of the ART Bill provides that an application for review of a decision by the ART must be made within the period prescribed by the rules.

235. Subsection 39M(2) of the Great Barrier Reef Marine Park Act 1975 sets out the time period for making an application to the Tribunal where a decision is deemed to have been made under subsection 39L(4) of that Act. Subsection 39M(2) as amended by this item stipulates that the time period applies regardless of clause 18 of the ART Bill.

236. This amendment is technical in nature and ensures subsection 39M(2) of the Great Barrier Reef Marine Park Act 1975 continues to operate in substantively the same way in relation to the Tribunal.

Item 23: Subsection 39M(3)

Updating legislative reference

237. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 41 of the AAT Act provides that a decision that is subject to review by the Tribunal continues to operate, unless the Tribunal makes an order staying or otherwise affecting the operation or implementation of the decision. This matter is prescribed in clause 32 of the ART Bill. This amendment is technical in nature and ensures subsection 39M(3) of the Great Barrier Reef Marine Park Act 1975 continues to operate in substantively the same way in relation to the Tribunal.

Items 24, 25 and 26: Paragraph 32N(1)(b), subsection 39N(2) and section 59G (heading)

Terminology changes

238. These items amend terminology. See explanation of general terminology changes above.

Item 27: subsection 59G(1) (definition of decision )

Updating definition

239. This item updates the definition of decision so that it refers to its meaning under the ART Bill rather than its meaning under the AAT Act. See explanation of general terminology changes above.

Items 28 and 29: Subsection 59G(2) and paragraph 59G(3)(b)

Terminology changes

240. These items amend terminology. See explanation of general terminology changes above.

Item 30: Subsection 64(6) (definition of decision )

Updating definition

241. This item updates the definition of decision so that it refers to its meaning under the ART Bill rather than its meaning under the AAT Act. See explanation of general terminology changes above.

Items 31 and 32: Section 64A (heading) and section 64A

Terminology changes

242. These items amend terminology. See explanation of general terminology changes above.

Industrial Chemicals Environmental Management (Register) Act 2021

Item 33: Subsection 47(7) (note)

Updating legislative reference

243. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. This matter is prescribed in clause 266 of the ART Bill. This amendment is technical in nature and ensures the note to subsection 47(7) of the Industrial Chemicals Environmental Management (Register) Act 2021 remains accurate.

Items 34 and 35: Section 48 (heading) and section 48

Terminology changes

244. These items amend terminology. See explanation of general terminology changes above.

National Greenhouse and Energy Reporting Act 2007

Item 36, 37, 38, 39 and 40: Subsection 22XNG(2), paragraph 22XNN(1)(e), subsection 22XNN(2), section 56 (heading) and section 56

Terminology changes

245. These items amend terminology. See explanation of general terminology changes above.

Nature Repair Act 2023

Item 41: Section 4 (paragraph beginning "This Act also contains")

Terminology change

246. This item amends terminology. See explanation of general terminology changes above.

Item 42: Subsection 176(3)

Terminology change, and interaction with the guidance and appeals panel

247. This item amends terminology. See explanation of general terminology changes above.

248. Paragraph 176(3)(f) of the Nature Repair Act 2023 prescribes that, if a certain decision under that Act is subject to a review by the AAT, the Regulator must publish an appropriate annotation on the Regulator's website when the AAT review is 'finalised'.

249. This item replicates that provision, substituting reference to the AAT with reference to the ART.

250. Of relevance to the operation of paragraph 176(3)(f) of the Nature Repair Act 2023, Part 5 of the ART Bill establishes a guidance and appeals panel within the Tribunal. The guidance and appeals panel will have the power to review and determine Tribunal decisions referred to it by the President that may contain a material error of fact or law, or that raise an issue of significant to administrative decision-making. A party may apply to the President under clause 123 of the ART Bill to refer a decision of the Tribunal made under clause 105 to the guidance and appeals panel. If the President refers the decision to the guidance and appeals panel, it will conduct a full merits review of the decision de novo.

251. For the purposes of paragraph 176(3)(f) of the Nature Repair Act 2023, review of the decision by the Tribunal would not be 'finalised' until the below scenarios occur:

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If a party appeals the Tribunal's decision on question of law to a court, or applies to have the decision referred to the guidance and appeals panel, the later of:

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the completion of the relevant appeal (for example, if a matter is reviewed by the guidance and appeals panel and a party appeals the decision to the court – when the appeal to the court is completed), or

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the period in which an appeal can be made concludes (for example, if a matter is reviewed by the guidance and appeals panel and a party does not appeal the decision to the court – when the period in which an appeal can be made to the court concludes).

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Where no appeal is made to the guidance and appeals panel or a court, when the period within which appeals (to a court or the guidance and appeals panel) can be made concludes.

Item 43: Section 211

Terminology change

252. This item amends terminology. See explanation of general terminology changes above.

Item 44: Subsection 213(2) (note)

Updating legislative reference

253. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. This matter is prescribed in clause 266 of the ART Bill. This amendment is technical in nature and ensures the note to subsection 213(2) of the Nature Repair Act 2023 remains accurate.

Items 45 and 46: Section 217 (heading) and subsections 217(1) and (2)

Terminology changes

254. These items amend terminology. See explanation of general terminology changes above.

Item 47: Subsection 217(2) (note)

Updating legislative reference

255. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. This matter is prescribed in clause 266 of the ART Bill. This amendment is technical in nature and ensures the note to subsection 217(2) of the Nature Repair Act 2023 remains accurate.

Renewable Energy (Electricity) Act 2000

Items 48, 49 and 50: Subsection 57(6), paragraph 60(a) and section 60 (note)

Terminology changes

256. These items amend terminology. See explanation of general terminology changes above.

Item 51: Section 61

Terminology change and retaining existing burden of proof

257. This item amends terminology. See explanation of general terminology changes above.

258. As only terminology changes are being made to this provision, the existing burden of proof will be retained. The basis for the burden of proof being placed on the liable entity is because they are requested to produce documentation to the Regulator and AAT, which is the basis on which the Regulator relies to reach a decision. This burden is appropriately placed on the entity making the application as it is consistent with common law principles that the party claiming that another entity's decision is wrong must prove that this is indeed the case. Further, the facts and evidence relating to these disputes are peculiarly within the knowledge of dissatisfied entities.

Item 52: Subsection 66(3) (note)

Updating legislative reference

259. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 27A of the AAT Act requires a decision-maker to notify persons who are affected by the decision of the making of the decision, and their right to have the decision reviewed. This matter is prescribed in clause 266 of the ART Bill. This amendment is technical in nature and ensures the note to subsection 66(3) of the Renewable Energy (Electricity) Act 2000 remains accurate.

Item 53: Subsection 66(5)

Terminology change

260. This item amends terminology. See explanation of general terminology changes above.

Water Efficiency Labelling and Standards Act 2005

Items 54, 55, 56, 57 and 58: Subsection 17(1), paragraph 17(2)(a), subsection 17(3), section 72 (heading) and subsection 72(1)

Terminology changes

261. These items amend terminology. See explanation of general terminology changes above.

Item 59: Subsection 72(3)

Updating legislative reference

262. This item updates a legislative reference to a provision of the AAT Act to instead refer to the equivalent provision of the ART Bill. Section 27 of the AAT Act provides that a person whose interests are affected by a reviewable decision may apply to the Tribunal for review of the decision. This matter is prescribed in clause 17 of the ART Bill. This amendment is technical in nature and ensures subsection 72(3) of the Water Efficiency Labelling and Standards Act 2005 continues to operate in substantively the same way in relation to the Tribunal.