Jenny McAllister (NSW, Australian Labor Party, Assistant Minister for Climate Change and Energy) Share this | Hansard source

I am able to come back to you now, Senator Pocock, in relation to the approach taken to both administrative review and merits review. The bill does define administrative decisions of the Clean Energy Regulator that can be reviewed, and they include refusal to register a project or refusal to issue a biodiversity certificate. Merits review of the decision can be initiated by a person aggrieved by the decision of the regulator, and this includes the person who made the application for the decision, and a decision of a delegate of the regulator would generally be reviewed internally before it can proceed by application to the Administrative Appeals Tribunal.

As you probably know, our government has initiated reforms to the Administrative Appeals Tribunal and the new model will apply to the nature repair market through relevant legislative amendments. The minister's decisions to make, vary or revoke a method or biodiversity assessment instrument or the advice of the independent advisory committee are not subject to merits review as they are not administrative decisions. The methods and biodiversity instrument are legislative instruments and subject to normal parliamentary process, including disallowance and sunsetting. Methods and biodiversity assessment instruments will be developed in consultation with stakeholders and must be reviewed by the independent advisory committee.

The committee's advice is not subject to merits review. However, the process for creating the advice involves a rigorous statutory process with many integrity elements, including public consultation. The final advice will be published along with submissions to public consultation and a statement of reasons by the minister, and this provides transparency about the advice and how elements such as the biodiversity integrity standards have been applied.

In addition, the independent statutory reviews of the bill conducted every five years will include a review of the operation of the committee and the kinds of advice provided to the committee. Decisions made under the bill may also be reviewed under relevant judicial review legislation in relation to errors of law.

For most matters that are the subject of merits or judicial review, the bill allows people directly affected by a decision to ask for a review or appeal the decision, and examples of people who can request a review would include a person who has been refused the issuance of a certificate and a person directly affected by the approval of a project being registered, such as a neighbour. However, the bill does not provide for open standing for such appeals, nor for injunctions to enforce compliance by proponents and others. We have not included this, because open-standing provisions could present a number of risks, including a disincentive for participation in what is a voluntary market, the potential for provisions to be used by one proponent against another with whom they are in competition and undermining the Clean Energy Regulator's approach of bringing a noncompliant proponent back into compliance.