Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Regulations and Ordinances—Standing Committee—Delegated legislation monitor no. 7 of 2016, dated 12 October 2016


Download PDF Download PDF

The Senate

Standing Committee on Regulations and Ordinances

Delegated legislation monitor

Monitor 7 of 2016

12 October 2016

ii

© Commonwealth of Australia 2016

ISSN 2201-8689 (print) ISSN 1447-2147 (online)

This document was prepared by the Senate Standing Committee on Regulations and Ordinances and printed by the Senate Printing Unit, Department of the Senate, Parliament House, Canberra.

iii

Membership of the committee

Current members

Senator John Williams (Chair) Ne w South Wales, NAT

Senator Gavin Marshall (Deputy Chair) Vic toria, ALP

Senator Anthony Chisholm Queensland, ALP

Senator Jane Hume Victoria, LP

Senator Claire Moore Queensland, ALP

Senator Linda Reynolds Western Australia, LP

Secretariat

Ms Toni Dawes, Secretary Ms Jessica Strout, Acting Principal Research Officer Ms Eloise Menzies, Senior Research Officer Ms Morana Kavgic, Legislative Research Officer

Committee legal adviser

Mr Stephen Argument

Committee contacts

PO Box 6100 Parliament House Canberra ACT 2600 Ph: 02 6277 3066 Email: regords.sen@aph.gov.au Website: http://www.aph.gov.au/senate_regord_ctte

iv

v

Contents

Membership of the committee ................................................................................ iii

Introduction ................................................................................................................ xi

Chapter 1 - New and continuing matters

Response required

AD/GAS/1 Amdt 11 - Inspection, Test and Retirement [F2016L01364] .............. 1

Australian Crime Commission Amendment (National Policing Information) Regulation 2016 (No. 1) [F2016L01378] ............................................................... 3

Banking, Insurance and Life Insurance (prudential standard) determination No. 1 of 2016 [F2016L01428]................................................................................ 4

Banking, Insurance and Life Insurance (prudential standard) determination No. 2 of 2016 [F2016L01429]................................................................................ 4

CASA 100/16 - Instructions — V.F.R. flights conducted by CGG Aviation (Australia) Pty Ltd [F2016L01407] ....................................................................... 5

Coastal Trading (Revitalising Australian Shipping) Act 2012 - Section 11 Exemption for cruise vessels 2018 extension [F2016L01308] .............................. 6

Consular Fees Amendment (Fees and Indexation) Regulation 2016 [F2016L01379] ....................................................................................................... 7

Health Insurance (Diagnostic Imaging Services Table) Regulation 2016 [F2016L01303] ....................................................................................................... 9

Health Insurance (Pathology Services Table) Regulation 2016 [F2016L01304] ....................................................................................................... 9

Marine Safety (Domestic Commercial Vessel) National Law Amendment (Cost Recovery) Regulation 2016 [F2016L01307] .............................................. 10

Migration Amendment (Entrepreneur Visas and Other Measures) Regulation 2016 [F2016L01391] ............................................................................................ 11

Private Health Insurance (Data Provision) Rules 2016 (No. 1) [F2016L01406] ..................................................................................................... 12

Radiocommunications (Emergency Locating Devices) Class Licence 2016 [F2016L01399] ..................................................................................................... 13

Remuneration Tribunal Determination 2016/10 - Remuneration and Allowances for Holders of Public Office [F2016L01360] ................................... 15

Further response required

Biosecurity (Human Health) Regulation 2016 [F2016L00719] .......................... 17

Commonwealth Electoral (Logo Requirements) Determination 2016 [F2016L00376] ..................................................................................................... 20

vi

Greenhouse and Energy Minimum Standards (Incandescent Lamps for General Lighting Services) Determination 2016 [F2016L00659] ....................... 23

Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/010 [F2016L00377] ................................................ 26

Migration

Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/007 [F2016L00455] ................................................ 26

Migration

Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/008 [F2016L00456] ................................................ 26

Migration

Act 1958 - Class of Persons Defined as Fast Track Applicants 2016/049 [F2016L00679] ..................................................................................... 26

Quality Agency Principles Amendment Principle 2016 [F2016L00830] ............ 29

Radioco

mmunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2016 [F2016L01294] .................................................................... 31

Advice only

National Health (Originator Brand) Amendment Determination 2016 (No. 6) [F2016L01329] ..................................................................................................... 34

Private Hea

lth Insurance (Prostheses) Rules 2016 (No. 3) [F2016L01318] ........ 35

Multiple i

nstruments that appear to rely on section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) ........... 36

Multiple i

nstruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901 ................................................................................ 37

Chapter 2 - Concluded matters AD/RAD/47 Amdt 4 - Periodic Testing of ATC Transponders [F2016L00368] ..................................................................................................... 39

ASIC Corporations (Minimum Subscription and Quotation Conditions) Instrument 2016/70 [F2016L00328] .................................................................... 40

Australian Consumer Law Interim Ban on Hoverboards that do not meet Specific Safety Requirements [F2016L00357] .................................................... 43

Australian Crime Commission (National Policing Information Charges) Determination 2016 [F2016L00678] .................................................................... 46

Australian Prudential Regulation Authority instrument fixing charges No. 2 of 2016 [F2016L01043].............................................................................. 47

Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2016 [F2016L01148] .................................................................... 49

Building Energy Efficiency Disclosure Determination 2016 [F2016L01276] ..................................................................................................... 49

CASA 27/16 - Instructions — use of Global Navigation Satellite System (GNSS) [F2016L00475] ..................................................................................................... 52

vii

CASA EX50/16 - Exemption — CASR Subpart 99.B DAMP requirements for foreign aircraft AOC holders [F2016L00373] ................................................ 54

CASA EX57/16 - Exemption — for seaplanes [F2016L00466] .......................... 55

Comptroller-General of Customs Directions (Use of Force - Norfolk Island) 2016 [F2016L01033]......................................... 57

Def

ence Determination 2016/8, Field allowance- amendment ........................... 59

Defence Determination 2016/10, Additional recreation leave-amendment ....... 59

Defence Determination 2016/15, Dependants - amendment [F2016L00509] ..... 61

Defence Determination 2016/19, Conditions of service [F2016L00643] ............ 62

Defence Trade Controls Act 2012 - Foreign Country List [F2016L00548] ........ 64

Electoral and Referendum Regulation 2016 [F2016L00399] .............................. 65

Environment Protection and Biodiversity Conservation Act 1999 - Section 269A - Instru ment Adopting Recovery Plan (Mallee Emu-Wren, Red-lored Whistler,

Western Whipbird) (02/05/2016) [F2016L00655] ............................................... 67

Environ

ment Protection and Biodiversity Conservation Act 1999 - Section 269A - Instru ment Adopting Recovery Plan (Spotted-tailed Quoll) (02/05/2016) [F2016L00657] ..................................................................................................... 67

Environ

ment Protection and Biodiversity Conservation Act 1999 - Section 269A - Instru ment Adopting Recovery Plan (Mountain Pygmy-Possum) (02/05/2016) [F2016L00658] ..................................................................................................... 67

Environ

ment Protection and Biodiversity Conservation Act 1999 - Section 269A - Instru ment Adopting Recovery Plan (Orange-bellied Parrot) (02/05/2016) [F2016L00662] ..................................................................................................... 67

Financial

Framework (Supplementary Powers) Amendment (Industry, Innovation and Science Measures No. 1) Regulation 2016 [F2016L00513] ......................... 70

Health Insu

rance (Section 19AB Exemptions) Guidelines 2016 [F2016L00134] ..................................................................................................... 74

Health Legislation Amendment (eHealth-Governance Restructure Day) Proclamation 2016 [F2016L00732] ..................................................................... 76

Marine Order 12 (Construction - subdivision and stability, machinery and electrical installations) 2016 [F2016L01049] ...................................................... 77

Marine Ord

er 21 (Safety and emergency arrangements) 2016 [F2016L01076] ..................................................................................................... 77

Marine Order 27 (Safety of navigation and radio equipment) 2016 [F2016L01077] ..................................................................................................... 77

Migration

Amendment (Priority Consideration of Certain Visa Applications) Regulation 2016 [F2016L00295] ......................................................................... 80

Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 [F2016L00523] ..................................................................................................... 82

viii

Migration Regulations 1994 - Working Holiday Visa - Definitions of Specified Work and Regional Australia 2016/041 [F2016L00757] .................... 83

Migration Regulations 1994 - Specification of Designated Areas - IMMI 16/044 [F2016L00777] ..................................................................................................... 83

Migration Regulations 1994 - Specification of Regional Certifying Bodies and Regional Postcodes - IMMI 16/045 [F2016L00778] .................................... 83

Migration

Regulations 1994 - Specification of Arrangements for Resident Return Visa Applications 2016/042 - IMMI 16/042 [F2016L00785] .................. 83

Migration Regulations 1994 - Specification of Arrangements for Other Visas 2016/043 - IMMI 16/043 [F2016L00786] ........................................................... 83

Migration Regulations 1994 - Specification of Visa Subclass for the Purposes of the Health Requirement - IMMI 16/067 [F2016L01126] ................ 83

Minister's Road User Charge Determination 2016 (No. 1) [F2016L00556] ....... 85

National Disability Insurance Scheme (Becoming a Participant) Rules 2016 [F2016L00544] ..................................................................................................... 86

National Disability Insurance Scheme (Facilitating the Preparation of Participants' Plans—Queensland) Rules 2016 [F2016L00342] ........................... 88

National Disability Insurance Scheme (Prescribed Programs—New South Wales) Rules 2016 [F2016L00792] .................................................................................. 90

National Health Determination under paragraph 98C(1)(b) Amendment 2016 (No. 4) (PB 44 of 2016) [F2016L00855] ............................................................. 91

National Measurement Guidelines 2016 [F2016L00538] .................................... 92

Norfolk Island Customs Ordinance 2016 [F2016L00736]................................... 93

PAYG Withholding Variation: Variation of amount to be withheld from Indigenous artists when an ABN is not provided [F2016L00358] ...................... 95

Private Ancillary Fund and Public Ancillary Fund Amendment Guidelines 2016 [F2016L00651] ..................................................................................................... 96

Private Health Insurance (Prostheses) Rules 2016 (No. 1) [F2016L00268] ........ 97

Private Hea

lth Insurance (Prostheses) Rules 2016 (No. 2) [F2016L00381] ........ 97

Public Governance, Performance and Accountability Amendment (CSC) Rule 2016 [F2016L00504] ................................................................................... 99

Public Len

ding Right Scheme 1997 (Modification No. 1 of 2016) [F2016L00610] ................................................................................................... 101

Radiocommunications (Spectrum Access Charges - 2 GHz Band) Determination 2016 [F2016L01021] .................................................................. 103

Safety, Rehabilitation and Compensation (Rate of Interest Payable - s26(3)) Notice 2016 [F2016L00464] .............................................................................. 104

Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016 [F2016L00720] ....................................................................... 106

ix

Tertiary Education Quality and Standards Agency Act 2011 - Determination of Fees (Amendment) No. 1 of 2016 [F2016L01078] ....................................... 108

Therapeutic Goods (Permissible Ingredients) Determination No. 2 of 2016 [F2016L01253] ................................................................................................... 110

Work Health and Safety (Managing Electrical Risks in the Workplace) Code of Practice 2015 [F2016L00407] ............................................................. 113

Work Health and Safety (Preventing Falls in Housing Construction) Code of Practice 2015 [F2016L00411] .............................................................. 113

Work Health and Safety (Spray Painting and Powder Coating) Code of Practice 2015 [F2016L00412] .............................................................. 113

Work Health and Safety (Labelling of Workplace Hazardous Chemicals) Code of Practice 2015 [F2016L00413] .............................................................. 113

Work Health and Safety (How to Safely Remove Asbestos) Code of Practice 2015 [F2016L00418] .......................................................................................... 113

Work Health and Safety (Managing Risks of Hazardous Chemicals in the Workplace) Code of Practice 2015 [F2016L00420] .......................................... 113

Work Health and Safety (Managing the Work Environment and Facilities) Code of Practice 2015 [F2016L00421] .............................................................. 113

Work Health and Safety (How to Manage and Control Asbestos in the Workplace) Code of Practice 2015 [F2016L00423] ................................ 113

Work Health and Safety (Preparation of Safety Data Sheets for Hazardous Chemicals) Code of Practice 2015 [F2016L00424] ........................................... 113

Work Health and Safety (Managing the Risk of Falls at Workplaces) Code of Practice 2015 [F2016L00425] .............................................................. 113

Work Health and Safety (Managing Noise and Preventing Hearing Loss at Work) Code of Practice 2015 [F2016L00426] ............................................... 113

Appendix 1 - Correspondence ............................................................................ 117

Appendix 2 - Guideline on consultation ........................................................... 207

x

xi

Introduction

Terms of reference The Senate Standing Committee on Regulations and Ordinances (the committee) was established in 1932. The role of the committee is to examine the technical qualities of all disallowable instruments of delegated legislation and decide whether they comply with the committee's non-partisan scrutiny principles of personal rights and parliamentary propriety.

Senate Standing Order 23(3) requires the committee to scrutinise each instrument referred to it to ensure:

(a) that it is in accordance with the statute;

(b) that it does not trespass unduly on personal rights and liberties;

(c) that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and

(d) that it does not contain matter more appropriate for parliamentary enactment.

Nature of the committee's scrutiny The committee's scrutiny principles capture a wide variety of issues but relate primarily to technical legislative scrutiny. The committee therefore does not generally examine or consider the policy merits of delegated legislation. In cases where an instrument is considered not to comply with the committee's scrutiny principles, the committee's usual approach is to correspond with the responsible minister or instrument-maker seeking further explanation or clarification of the matter at issue, or seeking an undertaking for specific action to address the committee's concern.

The committee's work is supported by processes for the registration, tabling and disallowance of legislative instruments under the Legislation Act 2003.1

Publications The committee's usual practice is to table a report, the Delegated legislation monitor (the monitor), each sitting week of the Senate. The monitor provides an overview of the committee's scrutiny of disallowable instruments of delegated legislation for the preceding period. Disallowable instruments of delegated legislation detailed in the monitor are also listed in the 'Index of instruments' on the committee's website.2

1 For further information on the disallowance process and the work of the committee see Odger's Australian Senate Practice, 13th Edition (2012), Chapter 15.

2 Parliament of Australia, Senate Standing Committee on Regulations and Ordinances, Index of instruments, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations _and_Ordinances/Index.

xii

Structure of the monitor The monitor is comprised of the following parts:

 Chapter 1 New and continuing matters: identifies disallowable instruments of delegated legislation about which the committee has raised a concern and agreed to write to the relevant minister or instrument-maker:

(a) seeking an explanation/information; or

(b) seeking further explanation/information subsequent to a response; or

(c) on an advice only basis.

 Chapter 2 Concluded matters: sets out matters which have been concluded to

the satisfaction of the committee, including by the giving of an undertaking to review, amend or remake a given instrument at a future date.

 Appendix 1 Correspondence: contains the correspondence relevant to the matters raised in Chapters 1 and 2.

 Appendix 2 Consultation: includes the committee's guideline on addressing the

consultation requirements of the Legislation Act 2003.3

Acknowledgement The committee wishes to acknowledge the cooperation of the ministers, instrument-makers and departments who assisted the committee with its consideration of the issues raised in this monitor.

General information The Federal Register of Legislation Register should be consulted for the text of instruments, explanatory statements, and associated information.4

The Senate Disallowable Instruments List provides an informal listing of tabled instruments for which disallowance motions may be moved in the Senate.5

The Disallowance Alert records all notices of motion for the disallowance of instruments in the Senate, and their progress and eventual outcome.6

Senator John Williams (Chair)

3 On 5 March 2016 the Legislative Instruments Act 2003 became the Legislation Act 2003 due to amendments made by the Acts and Instruments (Framework Reform) Act 2015.

4 See Australian Government, Federal Register of Legislation, www.legislation.gov.au.

5 Parliament of Australia, Senate Disallowable Instruments List, http://www.aph.gov.au/Parli amentary_Business/Bills_Legislation/leginstruments/Senate_Disallowable_Instruments_List.

6 Parliament of Australia, Senate Standing Committee on Regulations and Ordinances, Disallowance Alert 2016, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate /Regulations_and_Ordinances/Alerts.

Chapter 1

New and continuing matters

This chapter details concerns in relation to disallowable instruments of delegated legislation received by the Senate Standing Committee on Regulations and Ordinances (the committee) between 19 August 2016 and 15 September 2016 (new matters); and matters previously raised in relation to which the committee seeks further information (continuing matters).1

Response required

The committee requests an explanation or information from relevant ministers or instrument-makers with respect to the following concerns.

Instrument AD/GAS/1 Amdt 11 - Inspection, Test and Retirement [F2016L01364]

Purpose Corrects an unsafe situation on compressed gas cylinders and clarifies the applicability of the airworthiness directive

Last day to disallow 23 November 2016

Authorising legislation Civil Aviation Safety Regulations 1998

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(a)

Incorporation of documents

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above the committee notes that:

 subsections 1(a), 1(d) and section 4 of the instrument incorporate AS 2030;

1 The committee continues to defer its consideration of Financial Framework (Supplementary Powers) Amendment (Industry, Innovation and Science Measures No. 2) Regulation 2016 [F2016L00672].

2

 subsection 1(e) of the instrument incorporates the USA Compressed Gas

Association Pamphlet C-8 (Standards for Visual Inspection of Compressed Gas Cylinders (1972); and

 section 2 of the instrument incorporates paragraph 10.2.2 of AS2337.1-2004.

However,

neither the text of the instrument nor the explanatory statement (ES) expressly states the manner in which these documents are incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Access to and description of documents

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that the instrument incorporates AS 2030; the USA Compressed Gas Association Pamphlet C-8 (Standards for Visual Inspection of Compressed Gas Cylinders (1972); and paragraph 10.2.2 of AS2337.1-2004. However, neither the text of the determination nor the ES provides a description of these documents or indicates how they may be freely obtained.

The committee requests the advice of the minister in relation to this matter.

3

Instrument Australian Crime Commission Amendment (National Policing Information) Regulation 2016 (No. 1) [F2016L01378]

Purpose Prescribes additional kinds of information that may be national policing information and provides an expanded list of bodies, other than Board agencies, that are able to receive national policing information

Last day to disallow 24 November 2016

Authorising legislation Australian Crime Commission Act 2002

Department Attorney-General's

Scrutiny principle Standing Order 23(3)(b)

Retrospective commencement

Items 3, 5 and 6 of the regulation amend the Australian Crime Commission Regulations 2002 to expand the definition 'national policing information' and commence retrospectively on 1 July 2016.

Subsection 12(2) of the Legislation Act 2003 provides that an instrument that commences retrospectively is of no effect if it would disadvantage the rights of a person (other than the Commonwealth) or impose a liability on a person (other than the Commonwealth) for an act or omission before the instrument's date of registration. Accordingly, the committee's usual expectation is that ESs explicitly address the question of whether an instrument with retrospective commencement would disadvantage any person other than the Commonwealth.

In this respect, the ES to the regulation states:

Subsection 12(2) of the Legislation Act 2003 would only limit the application of the retrospective provisions and is unlikely to be engaged by the relevant provisions operating retrospectively.

However, the committee considers that the statement that subsection 12(2) of the Legislation Act 2003 is 'unlikely to be engaged by the relevant provisions operating retrospectively' does not adequately address the question of whether the regulation would disadvantage any person other than the Commonwealth.

The committee requests the advice of the minister in relation to this matter.

4

Instrument Banking, Insurance and Life Insurance (prudential

standard) determination No. 1 of 2016 [F2016L01428]

Banking, Insurance and Life Insurance (prudential standard) determination No. 2 of 2016 [F2016L01429]

Purpose Determine Prudential Standard 3PS 001 Definitions and

Prudential Standard 3PS 221 Aggregate Risk Exposures

Last day to disallow 30 November 2016

Authorising legislation Banking Act 1959; Insurance Act 1973; and Life Insurance Act 1995

Department Treasury

Scrutiny principle Standing Order 23(3)(a)

Statement of compatibility

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the maker of a disallowable instrument to have prepared a statement of compatibility in relation to the instrument. The statement of compatibility must include an assessment of whether the instrument is compatible with human rights, and must be included in the ES for the instrument.

With reference to these requirements, the committee notes that the shared ES for the two determinations does not contain a statement of compatibility. The shared ES states:

A Statement of compatibility prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 is provided at Attachment A to this Explanatory Statement.

However, no attachment to the sh ared ES is provided.

The committee requests the advice of the minister in relation to this matter, and requests that the ES be updated in accordance with the requirements of the Human Rights (Parliamentary Scrutiny) Act 2011.

5

Instrument CASA 100/16 - Instructions — V.F.R. flights conducted by CGG Aviation (Australia) Pty Ltd [F2016L01407]

Purpose Sets out instructions relating to the use of GPS navigation

equipment

Last day to disallow 24 November 2016

Authorising legislation Civil Aviation Regulations 1988

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(a)

Incorporation of documents

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above the committee notes that schedule 1 to the instrument incorporates 'TSO-C129a', 'TSO-C145a' and 'TSO-C146a'. However, neither the text of the instrument nor the ES expressly states the manner in which these documents are incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Access to and description of documents

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

6

With reference to the above, the committee notes that that Schedule 1 to the instrument incorporates 'TSO-C129a', 'TSO-C145a','TSO-C146a', and 'Advisory Circular 21-36, as published by CASA from time to time'. However, neither the text of the instrument nor the ES provides a description of these documents or indicates how they may be freely obtained.

While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of an incorporated document fails to satisfy the requirements of the Legislation Act 2003.

The committee requests the advice of the minister in relation to this matter.

Instrument Coastal Trading (Revitalising Australian Shipping) Act 2012 - Section 11 Exemption for cruise vessels 2018 extension [F2016L01308]

Purpose Exempts certain cruise ships from applying for a licence under the Coastal Trading (Revitalising Australian Shipping) Act 2012 when engaging in coastal trading

Last day to disallow 21 November 2016

Authorising legislation Coastal Trading (Revitalising Australian Shipping) Act 2012

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(d)

Matter more appropriate for parliamentary enactment

Scrutiny principle (d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via primary rather than delegated legislation). This may include instruments which extend relief from compliance with principal legislation.

Coastal Trading (Revitalising Australian Shipping) Act 2012 - Section 11 Exemption for cruise vessels 2018 extension [F2016L01308] (the instrument) exempts certain cruise ships from applying for a licence for the carriage of passengers between ports in the Commonwealth or in the Territories (other than between Victoria and Tasmania) under the Coastal Trading (Revitalising Australian Shipping) Act 2012 (CT (RAS) Act). The committee notes that the instrument extends, until 31 December 2018, an exemption that has been in place since 1998 and continues a longstanding exemption that was previously provided under subsection 286(6) of the Navigation Act 1912. The ES to the instrument states that the exemption will:

provide certainty for industry in long term planning and positioning of large cruise vessels.

7

The committee also notes that the statement of compatibility to the instrument states:

The purpose of the exemption is to promote tourism activity within Australia, recognising that Australia does not currently have any Australian registered vessels in this category.

Given the duration and purpose of the exemption, it appears the instrument may be addressing an unintended consequence of the operation of the licensing provisions of the CT (RAS) Act. The committee's general preference is that exemptions are not used or do not continue for such a time as to operate as de facto amendments to principal legislation (in this case the CT (RAS) Act). However, no information is provided in the ES as to why the series of exemptions have been used in favour of an amendment to the relevant licensing provisions of the CT (RAS) Act.

The committee requests the advice of the minister in relation to this matter.

Instrument Consular Fees Amendment (Fees and Indexation)

Regulation 2016 [F2016L01379]

Purpose Amends the Consular Fees Regulations 1990 to increase

consular fees and index them annually in line with the Consumer Price Index

Last day to disallow 24 November 2016

Authorising legislation Consular Fees Act 1955

Department Foreign Affairs and Trade

Scrutiny principle Standing Order 23(3)(a) and (b)

Unclear basis for determining fees

The regulation amends the Consular Fees Regulations 1990 to increase consular fees and index them annually in line with the Consumer Price Index (CPI).

The ES to the regulation states:

Notarial fees have not increased since the current regulations came into effect on 1 July 2000. The new fee structure simplifies the current fee structure to facilitate a move to online payment options in the future and better align with notarial fees charged by commercial providers…The new fees also account for inflation (with annual increases based on the latest annual CPI published by the Australian Bureau of Statistics).

The committee's usual expectation in cases where instruments of delegated legislation carry financial implications via the imposition of a charge, fee, levy, scale or rate of costs or payment is that the relevant ES makes clear the specific basis on which an individual imposition or change has been calculated.

8

With reference to this expectation, the committee notes that, while the ES for the regulation states that the new fees account for inflation, it provides no indication as to the basis on which the fee has been calculated for the purposes of the making of the regulation.

The committee requests the advice of the minister in relation to this matter.

Retrospective effect

Item 6 of the regulation inserts a transitional provision into the Consular Fees Regulations 1990 to provide that that the increased fees will apply to consular acts performed on or after 1 January 2017, even if an application or request relating to the consular act was made before that day.

The committee notes that, although the commencement of the regulation is not retrospective, it prescribes fees for the future based on antecedent facts (that is, the existence of an earlier request or application). As a consequence, it appears that a person who makes an application or request for a consular service prior to the commencement of the regulation on 1 January 2017 may be required to pay a higher fee than that which applied at the time that they made the request or application. In this regard, the committee notes that the Australian Government, Department of Foreign Affairs and Trade website sets out the current fees for consular acts. However, it does not appear to alert people to the increased fees that will apply from 1 January 2017, other than to state:

Please note that fees are reviewed from time to time and may vary to the above table when you present your application. A full listing of fees is available in the Consular Fees Regulations 1990.2

The committee's usual approach in cases such as this is to regard the instrument as being retrospective in effect and to assess such cases against the requirement to ensure that instruments of delegated legislation do not unduly trespass on personal rights and liberties (scrutiny principle 23(3)(b)). The committee notes that the ES for the regulation does not address this issue.

The committee requests the advice of the minister in relation to this matter.

2 Australian Government, Department of Foreign Affairs and Trade, Notarial services and document legalisation overseas, http://smartraveller.gov.au/services/legalising- documents/pages/overseas.aspx (accessed 11 October 2016).

9

Instrument Health Insurance (Diagnostic Imaging Services Table) Regulation 2016 [F2016L01303]

Health Insurance (Pathology Services Table) Regulation 2016 [F2016L01304]

Purpose The regulations prescribe diagnostic imaging and pathology

services and the benefits payable for such services

Last day to disallow 21 November 2016

Authorising legislation Health Insurance Act 1973

Department Health

Scrutiny principle Standing Order 23(3)(a)

Incorporation of documents

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above the committee notes that Australian Standard Geographical Classification (ASGC) (ABS catalogue number 1216.0), published by the Australian Statistician in July 2010, is incorporated in the regulations at:

 Schedule 1, Part 3 of the Health Insurance (Diagnostic Imaging Services Table) Regulation 2016 [F2016L01303] (the diagnostic imaging regulation); and

 subclause 2.12.1(3) of Health Insurance (Pathology Services Table)

Regulation 2016 [F2016L01304] (the pathology services regulation).

The diagnostic imaging regulation includes a note that: 'The ASGC could in 2015 be viewed on the Australian Bureau of Statistics (ABS) website (http://www.abs.gov.au)'. However, neither the text of the regulations nor the ESs expressly states the manner in which the ASGC is incorporated. Further, the committee notes that that the version of ASGC that can be viewed on the ABS website is dated July 2011.

The committee also notes that paragraph 2.4.4(b) of the diagnostic imaging regulation incorporates the NEMA Standards Publication NU 2-2007, Performance Measurements of Positron Emission Tomographs, published by the National Electrical Manufacturers Association (USA) (NU 2-2007). However, neither the text of the regulation nor the ES expressly states the manner in which NU 2-2007 is incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from

10

time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Access to documents

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that paragraph 2.4.4(b) of the diagnostic imaging regulation incorporates NU 2-2007 and provides a description of this document. However, the committee also notes that NU 2-2007, published by the National Electrical Manufacturers Association (USA), appears to only be available online for a fee of $95, and the ES does not provide any information as to whether NU 2-2007 is otherwise freely available.

The committee requests the advice of the minister in relation to this matter.

Instrument Marine Safety (Domestic Commercial Vessel) National Law Amendment (Cost Recovery) Regulation 2016 [F2016L01307]

Purpose Prescribes fees for accreditation of marine surveyors and other services carried out by Australian Maritime Safety Authority

Last day to disallow 21 November 2016

Authorising legislation Marine Safety (Domestic Commercial Vessel) National Law Act 2012

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(a)

Statement of compatibility

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the maker of a disallowable instrument to have prepared a statement of compatibility in relation

11

to the instrument. The statement of compatibility must include an assessment of whether the instrument is compatible with human rights, and must be included in the ES for the instrument.

With reference to these requirements, the committee notes that a statement of compatibility to the regulation is published on the Federal Register of Legislation as supporting material. However, the committee's concern with respect to a statement of compatibility is to ensure that an ES is technically compliant with the requirements of the Human Rights (Parliamentary Scrutiny) Act 2011 and the Legislation Act 2003, and thus in accordance with statute (scrutiny principle 23(3)(a)). The committee considers that an ES that does not contain a statement of compatibility falls short of these requirements.

The committee requests the advice of the minister in relation to this matter, and requests that the ES be updated in accordance with the requirements of the Human Rights (Parliamentary Scrutiny) Act 2011.

Instrument Migration Amendment (Entrepreneur Visas and Other Measures) Regulation 2016 [F2016L01391]

Purpose Amends the Migration Regulations 1994 to implement the

‘Supporting Innovation through Visas’ initiative

Last day to disallow 24 November 2016

Authorising legislation Migration Act 1958

Department Immigration and Border Protection

Scrutiny principle Standing Order 23(3)(a)

Unclear basis for determining fees

Schedule 1, items 4 and 7 of the regulation set first instalment application charges for Subclass 888 and 188 visas in the new entrepreneur stream. The regulation sets a base application charge for these visas of $3,600, and additional applicant charges of $1,800 and $900 for applicants who are at least 18 years old, and less than 18 years old, respectively. Schedule 1, item 4 of the regulation also sets the first instalment application charge for a Business Skills Class EC visa. The regulation sets a base application charge for this visa of $2,305, and additional applicant charges of $1,155 and $575 for applicants who are at least 18 years old, and less than 18 years old, respectively.

However, while noting that the regulation 'maintains the previous rates' for Business Skills Class EC visa application charges, the ES does not explicitly state the basis on which these charges have been calculated, nor the basis on which the Subclass 888 and 188 entrepreneur stream visa application charges have been calculated.

12

The committee's usual expectation in cases where an instrument of delegated legislation carries financial implications via the imposition of or change to a charge, fee, levy, scale or rate of costs or payment is that the relevant ES makes clear the specific basis on which an individual imposition or change has been calculated.

The committee requests the advice of the minister in relation to this matter.

Instrument Private Health Insurance (Data Provision) Rules 2016 (No. 1) [F2016L01406]

Purpose Specifies information that private health insurers must give to the Secretary of the Department of Health under section 172-10 of the Private Health Insurance Act 2007

Last day to disallow 24 November 2016

Authorising legislation Private Health Insurance Act 2007

Department Health

Scrutiny principle Standing Order 23(3)(a)

Drafting

The committee notes that section 4 of the Private Health Insurance (Data Provision) Rules 2016 (No. 1) [F2016L01406] (the rules) contains the following definitions:

 GT-Dental Data from Insurers to the Department means the protocol set out

in the document approved by the Assistant Secretary of the Health System Financing Branch of the Department of Health on 25 April 2015 which consists of “Data Specifications (GT-Dental)” and “Explanatory Notes (GT-Dental)”;

 HCP1 Data from Insurers to the Department means the protocol set out in the document approved by the Assistant Secretary of the Health System Financing Branch of the Department of Health on 31 March 2016 which consists of “Data Specifications (HCP1)” and “Explanatory Notes (HCP1)”; and

 HCP2 Data from Insurers to the Department means the protocol set out in the document approved by the Assistant Secretary of the Health System Financing Branch of the Department of Health on 25 April 2015 which consists of “Data Specifications (HCP2)” and “Explanatory Notes (HCP2)”.

The committee understands the above referenced documents to be incorporated as existing on the date approved by the Assistant Secretary. However, with respect to this date, the committee notes that the ES to the rules states:

13

The information required by the Rules is specified in the following documents, which were approved by the Assistant Secretary of the Health System Financing Branch of the Department on the dates indicated:

GT-Dental Data from Insurers to the Department, approved 25 April 2016;

HCP1 Data from Insurers to the Department, approved 31 March 2016; and

HCP2 Data from Insurers to the Department, approved 25 April 2016.

It is therefore unclear to the committee whether the documents 'GT-Dental Data from Insurers to the Department' and 'HCP2 Data from Insurers to the Department' are intended to be incorporated into the rules as the documents existed on 25 April 2015 or 25 April 2016.

The committee requests the advice of the minister in relation to this matter.

Instrument Radiocommunications (Emergency Locating Devices) Class Licence 2016 [F2016L01399]

Purpose Authorises the operation of a range of emergency locating

devices that are categorised as satellite distress or emergency position indiciating radio beacons, or locating aids

Last day to disallow 24 November 2016

Authorising legislation Radiocommunications Act 1992

Department Communications and the Arts

Scrutiny principle Standing Order 23(3)(a)

Incorporation of documents

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above the committee notes that subsection 5(1) of the Radiocommunications (Emergency Locating Devices) Class Licence 2016 [F2016L01399] (the licence) states:

radar has the meaning given to it in the Radio Regulations Articles, published by the International Telecommunication Union.

The committee further notes that subsection 314A(2) of the Radi ocommunications Act 1992 alters the operation of section 14 of the Legislation Act 2003, such that the licence may incorporate documents, either as in force at a particular date or as in force

14

from time to time. However, neither the text of the licence nor the ES expressly state the manner in which the Radio Regulations Articles are incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Access to and description of incorporated documents

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that in addition to incorporating the Radio Regulations Articles, published by the International Telecommunication Union, subsection 5(1) of the licence incorporates the following documents, published by Standards Australia International, as in force from time to time:

 AS/NZS 4280.1:2003, 406 MHz satellite distress beacons Part 1: Marine

emergency position-indicating radio beacons (EPIRB) (IEC 61097-2:2002, MOD);

 AS/NZS 4280.2:2003, 406 MHz satellite distress beacons Part 2: Personal locator beacons (PLBs);

 AS/NZS 4869.1:2006 (R2015) Maritime Survivor Locating Systems (MSLS) -

Operating on 121.5 MHz;

 AS/NZS 4869.2:2010 Stand alone maritime survivor locating systems (MSLS)

- Operating on frequencies other than 121.5 MHz;

 AS/NZS 4869.3:2015 Maritime survivor locating systems (MSLS) - Maritime

survivor locating devices (MSLD) - Operating on frequencies of 156.575 MHz and/or 161.975 MHz/162.025 MHz (RTCM 11901.1:2012, MOD); and

 AS/NZS 4869.4:2015 Maritime survivor locating systems (MSLS) - Maritime

low power personal locating devices employing Automatic Identification System.

With respect to the Radio Regulations Articles, the committee notes that neither the text of the licence nor the ES provides a description of the Radio Regulations Articles,

15

or indicates how they may be freely obtained. While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of an incorporated document fails to satisfy the requirements of the Legislation Act 2003. Notwithsta nding this, in this case the committee notes that the Radio Regulations Articles, published by the International Telecommunication Union, are available for free online.3 Where an incorporated document is available for free online, the committee considers that a best-practice approach is for the ES to an instrument to provide details of the website where the document can be accessed.

With respect to the documents published by Standards Australia International, the committee notes that they are only available for sale from SAI Global4, and neither the licence nor the ES provides information about whether the documents are otherwise freely and readily available.

The committee requests the advice of the minister in relation to this matter.

Instrument Remuneration Tribunal Determination 2016/10 -

Remuneration and Allowances for Holders of Public Office [F2016L01360]

Purpose Removes references to a previous office holder and provides

increased remuneration for the Chief Executive Officer of the National Disability Insurance Scheme Launch Transition Agency

Last day to disallow 23 November 2016

Authorising legislation Remuneration Tribunal Act 1973

Department Prime Minister and Cabinet

Scrutiny principle Standing Order 23(3)(a)

Consultation

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriat e consultation, as is reasonably practicable, has been undertaken in relation

to a proposed instrument. The ES which must accompany an instrument is required to

3 See International Telecommunication Union, http://www.itu.int/dms_pub/itus/oth/02/02/S0202 0000244501PDFE.PDF (accessed 4 October 2016).

4 The committee notes that AS/NZS 4280.1:2003 is available for a fee of $176.88; AS/NZS 4280.2:2003 is available for a fee of $91.09; AS/NZS 4869.1:2006 is available for a fee of $103.66; AS/NZS 4869.2:2010 is available for a fee of $91.09; AS/NZS 4869.3:2015 is available for a fee of $228.34; and AS/NZS 4869.4:2015 is available for a fee of $176.88.

16

describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the determination states:

In making this determination the Tribunal has informed itself through consultation in accordance with established practice.

While the committee does not interpret paragraphs 15J(2)(d) and (e) of the Legislation Act 2003 as requiring a highly detailed description of consultation undertaken, it considers that an overly bare or general description is insufficient to satisfy the requirements of the Legislation Act 2003. In the committee's view, the general statement that the tribunal has informed itself through consultation is not sufficient to meet the requirement that the ES describe the nature of any consultation undertaken.

Where consultation has taken place, the committee considers that a best-practice approach is for the ES to an instrument to set out the method and purpose of consultation, the bodies, groups or individuals consul ted, the issues raised in consultations, and the outcomes of the consultation process.

The committee's expectations in this regard are set out in the guideline on consultation contained in Appendix 2.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

Further response required

The committee requests further explanation or information from relevant ministers or instrument-makers with respect to the following concerns.

Correspondence relating to these matters is included at Appendix 1.

Instrument Biosecurity (Human Health) Regulation 2016

[F2016L00719]

Purpose Sets requirements for preventing and managing biosecurity

risks to human health

Last day to disallow 21 November 2016

Authorising legislation Biosecurity Act 2015

Department Health

Scrutiny principle Standing Order 23(3)(a) and (b)

Previously reported in Delegated legislation monitor 6 of 2016

Incorporation of documents

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above the committee notes that various sections of the regulation incorporate the Biosecurity (Movements between Parts of Australian Territory) Declaration 2016 (the movements declaration), which is made under subsection 618(2) of the Biosecurity Act 2015 (the Biosecurity Act). However, neither the text of the regulation nor the ES expressly states the manner in which the declaration is incorporated.

The committee further notes that subsection 618(7) of the Biosecurity Act provides that the movements declaration is a legislative instrument that is not subject to disallowance (an exempt instrument). Subsection 14(3) of the Legislation Act 2003 provides that only disallowable legislative instruments may be incorporated as in force from time to time. The committee therefore understands that the movements declaration may only be incorporated as in force at the commencement of the regulation, unless authorising or other legislation alters the operation of section 14.

18

However, the committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which exempt instruments are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Health and Aged Care advised:

In regard to your request for advice on the incorporation of documents into this instrument, it is intended that the reference to the Biosecurity (Movements between Parts of Australian Territory) Declaration 2016 (the Movements Declaration) be read as in force on commencement of the Biosecurity (Human Health) Regulation 2016. I note that the Deputy Prime Minister and Minister for Agriculture and Water Resources, the Hon Barnaby Joyce MP, will also be advising on a similar matter regarding incorporation of the Movements Declaration.

Committee's response

The committee thanks the minister for her advice and has concluded its examination of this issue.

Drafting

The committee commented as follows:

The regulation sets requirements for taking and storing body samples. It requires that samples 'must be taken in a manner consistent with appropriate medical samples' and 'must be stored, transported, labelled and used in a manner consistent with appropriate professional standards that are relevant to managing the risks to human health of listed human diseases.' Failure to comply with these requirements is an offence under subsection 10(5) of the regulation.

The committee is concerned that the terms 'appropriate medical standards' and 'appropriate professional standards' are insufficiently precise, such that it may be difficult for a person to know what standards must be complied with to ensure that they do not commit an offence under the regulation. This uncertainty in the application of the offence is problematic in terms of the committee's task of ensuring that the exercise of the Parliament's delegated legislative powers does not trespass unduly on personal rights and liberties (scrutiny principle 23(3)(b)).

Further, the taking and storing of body samples must be subject to clear and appropriate safeguards in order to avoid undue tresspass on personal rights and liberties (namely the right to privacy). Without more specific information regarding the medical or professional standards with which officers must comply when taking or storing body samples, the committee is unable to satisfy itself that the regulation will not trespass unduly on an individual's rights and liberties.

The committee requests the advice of the minister in relation to this matter.

19

Minister's response

The Minister for Health and Aged Care advised:

In regard to your request for advice on whether the terms 'appropriate medical standard' and 'appropriate professional standard' are sufficiently precise, an individual operating under section 10 of the Biosecurity (Human Health) Regulation 2016 will always be a qualified medical professional. The reference to 'appropriate professional standards' captures all standards and requirements that apply to medical professionals in their care and treatment of patients, such as codes of conduct set by colleges to which medical professionals belong, as well as standards for laboratories in the storage, transportation and labelling of body samples, including those established by the National Association of Testing Authorities. Adherence to these quality assurance systems is regulated by multiple bodies outside of my Department.

I consider that adherence to existing professional medical standards and requirements, appropriately manages human rights concerns, including privacy and respect for personal rights and liberties.

Committee's response

The committee thanks the minister for her response.

The committee notes the minister's advice that adherence to existing professional medical standards and requirements appropriately manages human rights concerns, including privacy and respect for personal rights and liberties. However, in the absence of information regarding specific requirements for the taking and storage of body samples, the committee remains concerned that it may be difficult for a person to know what standards must be complied with to ensure that they do not commit an offence under the regulation. This uncertainty in the application of the offence is problematic in terms of the committee's task of ensuring that the exercise of the Parliament's delegated legislative powers does not trespass unduly on personal rights and liberties (scrutiny principle 23(3)(b)). The committee also notes that body samples can contain very personal information, and the taking of body samples without appropriate safeguards that are readily apparent and understood, may unduly intrude on a person's bodily integrity.

The committee therefore requests the further advice of the minister in relation to this matter.

20

Instrument Commonwealth Electoral (Logo Requirements)

Determination 2016 [F2016L00376]

Purpose Specifies the technical requirements that must be complied with when making an application to include a party logo on the Register of Political Parties

Last day to disallow 13 October 2016

Authorising legislation Commonwealth Electoral Act 1918

Department Finance

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

No description of consultation

The committee commented as follows:

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the instrument provides no information regarding consultation.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

Minister's response

The Special Minister of State advised:

Consultation was undertaken for the Commonwealth Electoral Amendment Act 2016 (the Amendment Act) and the Commonwealth Electoral (Logo Requirements) Determination 2016 through the Joint Standing Committee on Electoral Matters (JSCEM).

The Amendment Act was the culmination of an extensive inquiry into the 2013 Federal Election by JSCEM where a number of recommendations were made into improving the Senate voting system. In particular, in its inquiry into the 2013 Federal Election, JSCEM noted that the use of logos on ballot papers should be investigated:

The Committee is conscious of the merits of the proposal to permit the inclusion of party logos on ballot papers. The potential to limit confusion amongst voters, especially with complex ballot papers, is an argument for the adoption of logos.

21

Following the Committee's report, and prior to the introduction of the Amendment Act, the then Special Minister of State met extensively with representatives from the Labor Party, the Greens and all Independent Senators, when developing the changes to the Electoral Act, including the proposal to include logos on ballot papers.

After the Bill was introduced to Parliament, it was subject to a specific inquiry from JSCEM, which included the opportunity for the public to make submissions. The JSCEM inquiry received 107 submissions about the proposed changes, a number of which commented favourably on the proposal of using political party logos on ballot papers.

Committee's response

The committee thanks the minister for his response.

The committee notes the minister's advice that consultation was undertaken for the determination.

However, the committee's concern with respect to consultation is to ensure that an ES is technically compliant with the requirements of the Legislation Act 2003, and thus in accordance with statute (scrutiny principle 23(3)(a)). The committee considers that an ES that does not contain a description of consultation falls short of these requirements.

The committee therefore requests the further advice of the minister; and reiterates its request that the ES be updated in accordance with the requirements of the Legislation Act 2003.

Access to extrinsic material

The committee commented as follows:

The instrument requires that a logo in an application for the registration of an eligible political party must meet certain requirements, including that it be a PDF file that complies with International Standard ISO 32000-1:2008 as in force at the time the instrument commences.

The committee notes that this standard is published by and available for sale from the International Organization for Standardization for a fee. However, neither the instrument nor the ES provides information about whether the standard is otherwise freely and readily available.

The committee's expectations where provisions allow the incorporation of legislative provisions by reference to other documents generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates extrinsic material that is not readily and freely available to the public. Generally, the committee will be concerned where relevant information, including standards or industry databases, is not publically available or is available only if a fee is paid, such that those obliged to obey the law may have inadequate access to its terms.

The committee requests the advice of the minister in relation to this matter.

22

Minister's response

The Special Minister of State advised:

In response to your second question regarding the Determination and the incorporation of the International Standard ISO 32000-1:2008, I am advised that the Standard is the universal format which is used to produce portable document formats (PDFs). The Standard was produced by the International Organisation for Standardisation in 2008 so as to ensure that products, for example PDFs, were consistent and reliable.

The Standard was incorporated into the Determination to ensure that an industry standard proprietary format was used so that the logos submitted would be compatible with industry hardware and software. The use of the Standard (ISO 32000-1:2008) also ensures that the files will contain stable and reliable graphic files which can be reproduced reliably when resized for reproduction on ballot papers.

Given the industry-wide use of the Standard in producing PDFs, the incorporation of the Standard into the Determination was not considered a disadvantage to the public. Further, we note that while the Standard can be purchased from ISO for a fee, ISO has also allowed Adobe Systems to provide and host an unofficial ISO 3200-1 document, available as a free download from Adobe Systems.

The Standard can be accessed at the following web address: http://www.adobe.com/content/dam/Adobe/en/devnet/acrobat/pdfs/PDF320 00_2008.pdf.

Committee's response

The committee thanks the minister for his response and has concluded its examination of this issue.

The committee also notes that paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of an incorporated document fails to satisfy the requirements of the Legislation Act 2003. However, in this case the committee notes the minister's advice that an unofficial International Standard ISO 32000-1:2008 is available for free online. Where an incorporated document is available for free online, the committee considers that a best-practice approach is for the ES to an instrument to provide details of the website where the document can be accessed.

23

Instrument Greenhouse and Energy Minimum Standards

(Incandescent Lamps for General Lighting Services) Determination 2016 [F2016L00659]

Purpose Establishes energy efficiency, labelling and product

performance requirements, and requirements for conducting tests, for incandescent lamps for general lighting services

Last day to disallow 21 November 2016

Authorising legislation Greenhouse and Energy Minimum Standards Act 2012

Department Environment and Energy

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Access to incorporated documents

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of a legislative instrument, unless authorising or other legislation alters the operation of section 14.

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee on Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that section 3 of the determination incorpora tes the following documents as they existed on the day the determination

came into force:

 Australian/New Zealand Standard 4934.1:2014 - Incandescent lamps for general lighting services - Part 1: Test methods - Energy performance;

 Australian Standard 4934.2-2011 - Incandescent lamps for general lighting

services - Part 2: Minimum Energy Performance Standards (MEPS) requirements; and

24

 IEC 60630 Edition 2.5 International Electrotechnical

Commission - Maximum lamp outlines for incandescent lamps.

While the ES to the determination provides a description of these standards and how they may be obtained, the committee notes that the standards are only available for sale from Standards Australia Limited and SAI Global, and neither the determination nor the ES provides information about whether the documents are otherwise freely and readily available.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for the Environment and Energy advised:

The Committee has identified that the Australian Standards referenced in the instrument are published by SAI Global Limited. The standards are readily available, but a fee applies.

The Greenhouse and Energy Minimum Standards Act 2012 (GEMS Act) and associated governmental agreements enable the Commonwealth, states and territories and New Zealand to set out specific energy performance and labelling requirements with the aim of reducing energy use for regulated products.

GEMS product determinations, including the instrument noted above and its predecessors, reference industry standards that provide the technical detail for the requirements. The Australian and joint Australian/New Zealand standards were developed via a Standards Australia committee. The committee is made up of a diverse range of stakeholders, including industry representatives, consumer advocates and government representatives. The committee members provide their expertise freely, but the intellectual property developed resides with Standards Australia and SAI Global.

The IEC standard used in the instrument is developed by the International Electrotechnical Commission (IEC), which is the international standards and conformity assessment body for all fields of electrotechnology. SAI Global manages copyright permissions and licensing on behalf of Standards Australia and the IEC.

While the referenced standards are available for a fee, it should be noted the legislative instruments do not apply to the general public, but rather manufacturers and importers of the regulated products. The stakeholders using these determinations are likely to already have access to the standards via participation in the committee process. However, there are no restrictions preventing interested parties from purchasing the standards and in the case of new entrants the Australian Government does not consider the fees as unreasonable or an access barrier for industry. Industry stakeholders have broadly supported the Standards Australia process in developing new determinations under the GEMS Act. The Government also views it as a well-functioning practice to ensure effective regulation for the end benefit of Australian consumers.

25

Committee's response

The committee thanks the minister for his response.

The committee notes the minister's advice that he does not consider the fees imposed to access the incorporated standards as unreasonable or an access barrier for industry.

However, the minister's response does not directly address the committee's concern about access to the incorporated standards.

In this regard, the committee reiterates its concerns about the incorporation of documents where there is a cost to access the material. The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms. In addition to access for industry members, the committee is interested in the broader issue of access for other parties who might be affected by, or are otherwise interested in, the law.

The committee requests the further advice of the minister in relation to this matter.

Drafting

The committee commented as follows:

Section 3 of the determination contains the following definition:

IEC 60630 Edition 2.5 means International Electrotechnical Commission - Maximum lamp outlines for incandescent lamps, as it existed on the day this Determination came into force.

However, the committee notes that the the product class characteristics for product class 1 in the table set out in subsection 5(1) of the determination refers to IEC 60630 Edition 2. It is therefore unclear to the committee whether the reference in subsection 5(1) should be to IEC 60630 Edition 2 or Edition 2.5.

The committee seeks the advice of the minister in relation to this matter.

Minister's response

The Minister for the Environment and Energy advised:

The Committee has correctly noted that there is a discrepancy in section 3 of the instrument which refers to IEC 60630 Edition 2.5 and the table set out in subsection 5(1) of the instrument which refers to IEC 60630 Edition 2. The reference to IEC 60630 Edition 2 in subsection 5(1) is a drafting error.

The instrument is currently being reviewed as part of the consideration of whether to regulate LED products under the GEMS Act, and this error will be corrected in any new instrument arising as part of that process.

26

Committee's response

The committee thanks the minister for his response and has concluded its examination of this issue.

The committee also thanks the minister for his advice that the drafting error identified by the committee will be corrected in any new instrument.

Instrument Migration Act 1958 - Specification of Class of Persons

Defined as Fast Track Applicants 2016/010 [F2016L00377]

Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/007 [F2016L00455]

Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/008 [F2016L00456]

Migration Act 1958 - Class of Persons Defined as Fast Track Applicants 2016/049 [F2016L00679]

Purpose These instruments define certain non-citizen persons as fast

track applicants

Last day to disallow 13 October 2016; 13 October 2016; 13 October 2016; and 21 November 2016

Authorising legislation Migration Act 1958

Department Immigration and Border Protection

Scrutiny principle Standing Order 23(3)(a) and (d)

Previously reported in Delegated legislation monitor 5 and 6 of 2016

Background

The Migration Act 1958 - Class of Persons Defined as Fast Track Applicants 2016/049 [F2016L00679] (the instrument) is made under Part 1, paragraph 5(1AA)(b), of the Migration Act 1958 (the Migration Act), and defines a class of persons who are fast track applicants for the purpose of paragraph 5(1)(b) of that Act. The committee understands the instrument to be exempt from disallowance by virtue of table item 20 in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 [F2015L01475] (the exemption regulation), which exempts particular instruments made under the Migration Act from disallowance (including Part 1 under which the instrument is made).

The exemption regulation replaced the former Legislative Instruments Regulations 2004, and implemented a number of changes to the regime governing legislative instruments by the Acts and Instruments (Framework Reform) Act 2015

27

(including changing the name of the Legislative Instruments Act 2003 to the Legislation Act 2003).

In its report on the exemption regulation, the committee noted that the item description of section 10 in the ES to the regulation provided justifications for the exemption of particular instruments from disallowance, explaining why their particular nature or character required them to be exempt from disallowance.5

However, no such justification was provided for item 20 of the table in section 10, which applies to the present instrument as described above. Accordingly, the committee sought a response from the Attorney-General in relation to this question.

In response, the Attorney-General advised:

It is appropriate to continue to exempt the relevant instruments from disallowance. These instruments are crucial to the operation of the migration program. Continuing to exempt such instruments from disallowance ensures certainty in operational matters, as well as certainty for the rights and obligations of individuals with regard to visa and migration status.

Many of these instruments support the machinery of the migration program by providing for administrative matters, such as the form required to make a valid visa application, the manner and place for lodging applications and appropriate course qualifications or language proficiency. In addition to ensuring certainty in the operation of the immigration program, these instruments are largely administrative in nature, and therefore would not ordinarily be considered legislative instruments under the Legislative Instruments Act...6

The Attorney-General also provided the following examples of the nature and purpose of instruments commonly made under Part 1of the Migration Act:

 authorisation of officers for certain purposes;

 approved places of immigration detention; and

 appointment of ports.

In concluding the matter, the committee noted the Attorney-General's advice that exempting such instruments from disallowance ensures certainty in operational matters and provides for administrative matters to support the machinery of the migration program.

Exemption of instrument from disallowance

With reference to each instrument the committee commented as follows:

As noted above, the purpose of the instrument is to define a class of persons as fast track applicants for the purposes of paragraph 5(1)(b) of the Migration Act.

5 See Delegated legislation monitor 14 of 2015 (11 November 2015), pp 8-9.

6 Delegated legislation monitor 16 of 2015 (2 December 2015), pp 30-33 and Appendix 1.

28

Paragraph 6 of the ES to the instrument states:

Under section 42 of the Legislation Act 2003, the Instrument is subject to disallowance…

However, as set out above, the instrument is made under Part 1 of the Migration Act, and the committee therefore understands it to be exempt from disallowance by virtue of section 10 of the exemption regulation.

With reference to the Attorney-General's previous advice about the nature of instruments made under Part 1 of the Migration Act, and the examples provided of the nature and purpose of such instruments, the committee notes that the instrument provides a substantive definition relating to classes of persons who are fast track applicants for the purposes of the Migration Act. In this respect, it is unclear to the committee that the instrument is properly characterised as providing merely for 'administrative matters to support the machinery of the migration program', so as to justify its exemption from disallowance (and thereby being effectively removed from the effective oversight of the Parliament).

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Immigration and Border Protection advised:

The Committee noted that Instruments F20l6L00377 and F20l6L006797 are made under Part 1 of the Migration Act 1958 (the Migration Act) and should thus be exempt from disallowance, according to section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Exemption Regulation). The Explanatory Statement to both instruments states however, that "under section 42 of the Legislation Act 2003, the instrument is subject to disallowance."

However, Instruments F2016L00377 and F2016L00679 are made under paragraph 5(1AA)(b) of the Migration Act, which states that the Minister may make a legislative instrument for the purposes of paragraph (b) of the definition of "fast track applicant" in subsection 5(1) of the Act. Subsection 5(1AD) of the Migration Act stipulates that despite subsection 44(2) of the Legislation Act 2003 (the Legislation Act), section 42 of the Legislation Act (which deals with the disallowance of legislative instruments) applies to an instrument made under subsection 5(1AA). Consequently, regardless of the provision in section 10 of the Exemption Regulation (which creates an exemption for instruments made under Part 1 of the Migration Act) Instruments F2016L00377 and F2016L00679 are subject to disallowance. This is consistent with the Explanatory Statements associated with the instruments.

7 The committee notes that the minister's response is also relevant to the issues raised in Delegated legislation monitor 5 of 2016 (3 May 2016) concerning Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/007 [F2016L00455]; and Migration Act 1958 - Specification of Class of Persons Defined as Fast Track Applicants 2016/008 [F2016L00456].

29

Committee's response

The committee thanks the minister for his response.

However, the committee is concerned that when these instruments were received by both the Parliament and the committee they had been classified as exempt from disallowance, and thereby tabled as exempt from disallowance.

In this respect, the incorrect classification of these instruments as exempt from disallowance may have hindered the effective oversight of the instruments by Parliament. Therefore, the committee has resolved to place protective notices of motion on each of the instruments to extend the disallowance period by 15 sitting days.

The committee is concerned that these instruments were improperly classified and that it is unable to determine how this occurred. The committee is also interested in whether there is any further action that needs to be taken to correct the situation, both for these particular instruments and for the classification process generally.

The committee requests the further advice of the minister in relation to this matter.

Instrument Quality Agency Principles Amendment Principle 2016 [F2016L00830]

Purpose Removes the methods for calculation and indexation of

application fees for accrediation from the Quality Agency Principles 2013 [F2016C00652]

Last day to disallow 21 November 2016

Authorising legislation Australian Aged Care Quality Agency Act 2013

Department Health

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Removing fees from a disallowable legislative instrument

The committee commented as follows:

This Quality Agency Principles Amendment Principle 2016 [F2016L00830] (the amendment principle) removes from the Quality Agency Principles 2013 [F2016C00652] (the 2013 principles) the details of how application fees for accreditation of certain aged care services are calculated and indexed. As such, the fees will no longer be set out in a disallowable legislative instrument, and instead will be determined by the Chief Executive Officer of the Australian Aged Care Quality Agency and published on that agency’s website.

30

The committee acknowledges that the Australian Aged Care Quality Agency Act 2013 (Quality Agency Act) does not require these fees to be included in a disallowable legislative instrument. However, the committee notes that, when considering the bill that became the Quality Agency Act, the Scrutiny of Bills committee sought a justification from the minister for including important matters relating to the accreditation of care services in the 2013 principles. The minister's response advised that the information to be included in the quality agency principles, such as application fees, was not appropriate for inclusion in primary legislation as the information needed regular updating. The minister further justified this approach by noting that the 2013 principles would be subject to oversight by this committee.8

The amendment principle removes the details of how application fees for accreditation of certain aged care services are calculated and indexed from the 2013 principles (a disallowable legislative instrument), and therefore from direct parliamentary oversight (including consideration by this committee).

The committee is concerned that the ES for the amendment principle does not provide a justification for the removal of the calculation and indexation of application fees for accreditation of certain aged care services from the Quality Agency Principles; nor information on whether it is appropriate to remove this process from a disallowable legislative instrument (thereby removing the process from the effective oversight of the Parliament).

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Health and Aged Care advised:

In regard to your query regarding removing fees from the instrument, the Quality Agency Act 2013 does not give the Minister authority to set fees for accreditation services in the instrument. Instead, section 15 of the Quality Agency Act 2013 authorises the Chief Executive Officer of the Quality Agency to publish a document setting out accreditation fees and re-accreditation fees. This allows a transparent approach to the setting of such fees for accreditation services which is also consistent with the legislative authority in the Quality Agency Act 2013.

Committee's response

The committee thanks the minister for her response.

The committee agrees that the Quality Agency Act authorises the Chief Executive Officer of the Quality Agency to publish a document setting accreditation and re-accreditation fees. However, the minister's response provided to the Scrutiny of Bills committee with respect to the Quality Agency Act indicated that these fees would be included in a disallowable legislative instrument and subject to

8 Senate Standing Committee for the Scrutiny of Bills, Sixth Report of 2013 (19 June 2013), Australian Aged Care Quality Agency Bill 2013 (see p. 4 of the correspondence from the minister, The Hon Mark Butler, MP, attached to the report).

31

Parliamentary oversight. Therefore, the committee remains concerned that the minister's response does not provide a justification for removing from a disallowable legislative instrument the process for calculating and indexing fees for the accreditation of certain aged care services (thereby removing the process from the effective oversight of the Parliament).

The committee requests the further advice of the minister in relation to this matter.

Instrument Radiocommunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2016 [F2016L01294]

Purpose Revokes and replaces the Radiocommunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2006 [F2012C00581]

Last day to disallow 21 November 2016

Authorising legislation Radiocommunications Act 1992

Department Communications and the Arts

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Access to incorporated documents

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of a legislative instrument, unless authorising or other legislation alters the operation of section 14.

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee on Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

32

With reference to the above, the committee notes that section 6 of

Radioco

mmunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2016 [F2016L01294] (the Class Licence) incorporates as in force from time to time 'AS/NZS IEC 62287.1: 2007: Maritime navigation and radiocommunication equipment and systems—Class B shipborne equipment of the automatic identification system (AIS), Part 1: Carrier-sense time division multiple access (CSTDMA) techniques,

published by Standards Australia' (AS/NZS IEC 62287.1:2007).

However, the committee notes that AS/NZS IEC 62287.1: 2007, published by Standards Australia, appears to be only available for a fee of $228.34 from SAI Global, and the ES does not provide any information as to whether AS/NZS IEC 62287.1: 2007, published by Standards Australia, is otherwise freely available.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Communications advised:

In respect to the request for advice in relation to the Radiocommunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2016 [F2016L01294] (the Class Licence), the ACMA noted that the Class Licence replaced an equivalent legislative instrument (the Radiocommunications (Aircraft and Aeronautical Mobile Stations) Class Licence 2006) made by the ACMA, which also incorporated the Standard, and which had been in place since 2006.

The ACMA has advised that Australian Standards published by Standards Australia (including the Standard) are distributed, under licence, by SAI Global. The ACMA understands that various standards published by Standards Australia are also made available by certain public libraries for their borrowers, free of direct charge. The ACMA notes, however, that the beneficiaries of the grant of rights given by the Class Licence, and so the key end-users of the Standard, are, for the most part, large commercial entities, including major airlines. The amount charged for the Standard is not unreasonable for these end-users.

The ACMA will continue to monitor the cost of, and availability of access to, standards set by Standards Australia (and any other relevant standard-setting body) when making legislative instruments that adopt such standards. This will ensure, so far as is possible, that costs of access to those standards are contained and reasonable, and that access to them is readily and reasonably assured.

Committee's response

The committee thanks the minister for his response.

The committee notes the minister's advice that he does not consider the amount charged to access the incorporated standard as unreasonable for key users of the instrument and that that various standards published by Standards Australia are made available by certain public libraries.

33

However, the minister's response does not directly address the committee's concern about access to the incorporated standard, namely AS/NZS IEC 62287.1: 2007.

In this regard, the committee reiterates its concerns about the incorporation of documents where there is a cost to access the material. The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons

interested in or affected by the law may have inadequate access to its terms. In addition to access for industry members, the committee is interested in the broader issue of access for other parties who might be affected by, or are otherwise interested in, the law.

The committee requests the further advice of the minister in relation to this matter.

34

Advice only

The committee draws the following matters to the attention of relevant ministers or instrument-makers on an advice only basis. These comments do not require a response.

Instrument National Health (Originator Brand) Amendment

Determination 2016 (No. 6) [F2016L01329]

Purpose Amends the National Health (Originator Brand) Determination 2015 (PB 100 of 2015) by determining an orginator brand of a pharmaceutical item for an existing F2 formulary drug

Last day to disallow 21 November 2016

Authorising legislation National Health Act 1953

Department Health

Scrutiny principle Standing Order 23(3)(a)

Consultation

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES to the determination states:

The responsible person for the brand recommended to be the originator in the Amending Determination was not asked for comments in relation to the potential originator brand determination. The responsible person made the application for a variant to their brand name, and made no comment seeking that this variant to an already determined originator brand be treated any differently.

While the committee does not usually interpret paragraphs 15J(2)(d) and (e) as requiring a highly detailed description of consultation undertaken, it considers that an overly bare or general description is insufficient to satisfy the requirements of the Legislation Act 2003. In this case, it appears that consultation (within the general meaning of public consultation or consultation with relevant stakeholders) was considered unnecessary due to the machinery nature of the request from the sponsor company of the relevant listed drug. In terms of complying with paragraphs 15J(2)(d) and (e) of the Legislation Act 2003, the committee's preferred approach would be for the ES to have explicitly stated that consultation was considered unnecessary (or

35

inappropriate) for this reason. The committee's expectations in this regard are set out in the guideline on consultation contained in Appendix 2.

The committee draws this matter to the minister's attention.

Instrument Private Health Insurance (Prostheses) Rules 2016 (No. 3) [F2016L01318]

Purpose Revoke and replace previous rules, add new prostheses to the

schedule and change and remove some items

Last day to disallow 21 November 2016

Authorising legislation Private Health Insurance Act 2007

Department Health

Scrutiny principle Standing Order 23(3)(a)

Drafting

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the maker of a disallowable instrument to have prepared a statement of compatibility in relation to the instrument. The statement of compatibility must include an assessment of whether the instrument is compatible with human rights, and must be included in the ES for the instrument.

With reference to this requirement, the committee notes that the ES for the Private Health Insurance (Prostheses) Rules 2016 (No. 3) [F2016L01318] (the rules) includes a statement of compatibility which contains errors. Specifically, the statement of compatibility states:

The Rules differ from the Previous Rules by:

adding X new items to Part A of the Schedule as no gap prostheses;

changing the current listing of X existing products in Part A of the Schedule including:

amending the descriptions of products; and

changing the grouping and minimum benefit of products; and

deleting X items from Part A;

Adding one new human tissue item to Part B of the Schedule; and

changing the current listing of X existing products in Part B of the Schedule including

16 billing codes with increased benefits; and

X billing codes with changes to details.

36

However, the committee notes that the errors are confined to the description of how the rules differ from the previous rules, and not the substantive human rights analysis.

The committee draws this matter to the minister's attention.

Multiple instruments that appear to rely on section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003)

Instruments

ASIC Corporations (Disclosure in Dollars) Instrument 2016/767 [F2016L01299]

Australian Public Service Commissioner's Directions 2016

[F2016L01430]

Banking, Insurance and Life Insurance (prudential standard)

determination No. 1 of 2016 [F2016L01428]

Child Care Benefit (Eligibility of Child Care Services for Approval

and Continued Approval) Amendment Determination 2016 [F2016L01426]

Financial Sector (Collection of Data) (reporting standard)

determination No. 22 of 2016 - HRS 601.0 Statistical Data by State [F2016L01394]

Marine Order 508 (National law amendment) 2016 [F2016L01317]

Private Health Insurance (Prostheses) Rules 2016 (No. 3)

[F2016L01318]

Private Health Insurance (Prostheses) Rules 2016 (No. 4)

[F2016L01386]

Torres Strait Fisheries Management Instrument No. 13

[F2016L01393]

Torres Strait Fisheries Management Instrument No. 14

[F2016L01395]

Scrutiny principle Standing Order 23(3)(a)

Incorporation of Commonwealth disallowable legislative instruments

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time.

The instruments identified above incorporate Commonwealth disallowable instruments. However, neither the text of the instruments nor their accompanying ESs state the manner in which they are incorporated.

37

The committee acknowledges that section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) has the effect that references to Commonwealth disallowable instruments can be taken to be references to versions of those instruments as in force from time to time.

However, the committee expects instruments to clearly state the manner of incorporation (that is, either as in force from time to time or as in force at a particular time). This enables persons interested in or affected by an instrument to understand its operation, without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee therefore considers that, notwithstanding the operation of section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003), and in the interests of promoting clarity and intelligibility of an instrument to persons interested in or affected by an instrument, instruments (and ideally their accompanying ESs) should clearly state the manner in which Commonwealth disallowable legislative instruments are incorporated.

The committee draws this matter to the attention of ministers.

Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901

Instruments CASA EX128/16 - Repeal - exemption - from standard take-off and landing minima - Japan Airlines [F2016L01302]

Currency (Perth Mint) Amendment Determination (No. 1) 2016

[F2016L01311]

Export Quotas Legislation Amendment Order 2016 [F2016L01423]

Health Insurance (Eligible Collection Centres) Approval Amendment

(Duration of Approvals) Principles 2016 [F2016L01314]

Income Tax Assessment (Infrastructure Project Designation)

Amendment Rule 2016 [F2016L01359]

Private Health Insurance (Data Provision) Rules 2016 (No. 1)

[F2016L01406]

Private Health Insurance (Prostheses) Rules 2016 (No. 3)

[F2016L01318]

Private Health Insurance (Prostheses) Rules 2016 (No. 4)

[F2016L01386]

Remuneration Tribunal Determination 2016/10 - Remuneration and

Allowances for Holders of Public Office [F2016L01360]

Vehicle Standard (Australian Design Rule 76/00 - Daytime Running

38

Lamps) 2006 Amendment 1 [F2016L01315]

Woomera Prohibited Area Rule 2014 Determination of an Exclusion

Period for the Green Zone for Financial Year 2016-2017 Amendment No.1 [F2016L01300]

Scrutiny principle Standing Order 23(3)(a)

Drafting

The instruments identified above appear to rely on subsection 33(3) of the Acts Interpretation Act 1901, which provides that the power to make an instrument includes the power to vary or revoke the instrument. If that is the case, the committee considers it would be preferable for the ES for any such instrument to identify the relevance of subsection 33(3), in the interests of promoting the clarity and intelligibility of the instrument to anticipated users. The committee provides the following example of a form of words which may be included in an ES where subsection 33(3) of the Acts Interpretation Act 1901 is relevant:

Under subsection 33(3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.9

The committee draws this matter to the attention of ministers.

9 For more extensive comment on this issue, see Delegated legislation monitor 8 of 2013, p. 511.

Chapter 2 Concluded matters

This chapter sets out matters which have been concluded to the satisfaction of the committee based on responses received from ministers or relevant instrument-makers.

Correspondence relating to these matters is included at Appendix 1.

Instrument AD/RAD/47 Amdt 4 - Periodic Testing of ATC

Transponders [F2016L00368]

Purpose Clarifies and updates regulatory references and repeals and

replaces AD/RAD/47 Amdt 3 [F2016L00150]

Last day to disallow 13 October 2016

Authorising legislation Civil Aviation Safety Regulations 1998

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Incorporation of extrinsic material

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows for the incorporation of extrinsic material into instruments. Commonwealth legislative material may be incorporated as in force from time to time or at a particular date. Non-legislative material may only be incorporated as in force at the commencement of the instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that the instrument states:

Requirement:

1. For all transponders, perform a system test in accordance with the requirements of United States of America 14 CFR (Federal Aviation Regulations) Part 43, Appendix F.

However, neither the text of the instrument nor the explanatory statement (ES) expressly states the manner in which United States of America 14 CFR (Federal Aviation Regulations) Part 43, Appendix F is incorporated.

The committee's usual expectation where instruments incorporate extrinsic material by reference is that the manner of incorporation is clearly specified in the instruments and, ideally, in the ESs. The committee regards this as a best-practice approach that

40

enables anticipated users or persons affected by any such instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The acting Minister for Infrastructure and Transport advised:

CASA has advised that in future it will ensure that legislative instruments that reference another instrument or document, will reference it as in force from time to time, unless it is intended that the reference only be to the version of the document in force at the time of the making of the new instrument.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee understands the minister's advice to mean that United States of America 14 CFR (Federal Aviation Regulations) Part 43, Appendix F is incorporated as in force at the commencement of the instrument.

Instrument ASIC Corporations (Minimum Subscription and Quotation Conditions) Instrument 2016/70 [F2016L00328]

Purpose Modifies various sections of the Corporations Act 2001 in

relation to requirements for disclosure documents

Last day to disallow 13 October 2016

Authorising legislation Corporations Act 2001

Department Treasury

Scrutiny principle Standing Order 23(3)(b)

Previously reported in Delegated legislation monitor 5 of 2016

Insufficient information regarding strict liability offences

The committee commented as follows:

The instrument modifies sections 723 and 724 of the Corporations Act 2001. In doing so, the instrument inserts three strict liability offences relating to minimum subscription and quotation conditions for disclosure documents under which securities or issues for sale may be offered.

Given the limiting nature and potential consequences for individuals of strict and vicarious liability offence provisions, the committee generally requires a detailed

41

justification for the inclusion of any such offences (particularly strict liability offences) in delegated legislation. The committee notes that in this case the ES provides no explanation of or justification for the framing of the offence.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Revenue and Financial Services advised:

ASIC notes that the strict liability provisions imposed by the Instrument are directly modelled on section 724(1A) of the Corporations Act 2001 (the Act). Section 724 provides a series of procedural choices that are open to issuers if they have failed to satisfy, among other things, a minimum subscription condition, a quotation admittance condition or a quotation application condition.

These choices are essentially a choice to (1) refund application monies; (2) offer withdrawal rights; or (3) issue/transfer the securities and offer withdrawal rights. If an issuer fails to implement at least one of these choices, this is a contravention which can be prosecuted as a strict liability offence. Under section 724 of the Act, the choices available to an issuer are the same set of choices, irrespective of which condition (i.e. minimum subscription condition, quotation admittance condition or quotation application condition) has not been satisfied within the timeframes.

The effect of the ASIC legislative instrument is to give issuers greater flexibility in satisfying the conditions by allowing them to "refresh/reset" the timeframes by which the conditions must be satisfied. This greater flexibility is achieved through a new "refresh timeframes and offer withdrawal rights" procedure. However, if an issuer chooses not to take advantage of this "refresh timeframes and offer withdrawal rights" procedure, then the remaining procedural choices open to an issuer are more limited and more specific to the condition that has not been satisfied, namely:

- where a minimum subscription condition is not satisfied within the required timeframe by the issuer, the issuer must follow a procedure of refunding application monies;

- where the quotation admittance condition is not satisfied within the required timeframe by the issuer, the issuer must follow a procedure of refunding application monies;

- where the quotation application condition is not satisfied by the issuer within the required timeframe, the issuer must either refund application monies or follow the required "refresh and offer withdrawal rights" procedure.

A failure to follow these procedures will be a contravention which can be prosecuted as an offence of strict liability. Technically, there are three new offences of strict liability because different procedural requirements/choices will apply depending on which kind of condition has not been satisfied. The separation of the different procedural requirements/choices, with three new offences of strict liability, was purely a matter of drafting convenience.

42

However, in substance, there is still only a single strict liability offence for a failure to follow the required procedure and so, to that extent, the instrument replicates the existing position under section 724(1A) of the Act.

ASIC have stated that in future, where delegated legislation includes offences (particularly strict liability offences), ASIC will commit to providing a detailed explanation of and justification for the framing of such offences in the explanatory material that accompanies the delegated legislation.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee also thanks the minister for her advice that future ESs to instruments which include offences will provide a detailed explanation of and justification for the framing of such offences. However, while noting the minister's advice that the strict liability offences included in the instrument are modelled on an existing offence provision in the Corporations Act 2001, the committee reiterates its expectations that, where an instrument makes provision for offences, the ES should provide a full justification for the need, scope and framing of those offences. This is particularly so in cases of strict liability.

The committee further draws the minister's attention to the discussion of strict and absolute liability offences in the Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notice and Enforcement Powers,1 as providing useful guidance for justifying the use of strict liability offences in accordance with the committee's scrutiny principles.

1 Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications/ Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPow ers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf (accessed 12 October 2016).

43

Instrument Australian Consumer Law Interim Ban on Hoverboards that do not meet Specific Safety Requirements [F2016L00357]

Purpose Prohibits the supply of hoverboards that do not meet certain

specific safety requirements set out in International Electrotechnical Commission and Underwriters

Laboratories Inc. standards

Last day to disallow 13 October 2016

Authorising legislation Competition and Consumer Act 2010

Department Treasury

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Incorporation of extrinsic material

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows for the incorporation of extrinsic material into instruments. Commonwealth legislative material may be incorporated as in force from time to time or at a particular date. Non-legislative material may only be incorporated as in force at the commencement of the instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that the instrument requires that components of hoverboards meet certain requirements as specified in the following standards:

 IEC 62133 Edition 2.0 2012-12 - Secondary Cells and Batteries containing Alkaline or other Non-acid Electrolytes - Safety Requirements for Portable Sealed Secondary Cells, and for Batteries made from them, for use in Portable Applications (IEC 62133);

 IEC 60335-1 Edition 5.1 2013-12 Household and similar Electrical Appliances - Safety - Part 1: General Requirements (IEC 60335-1) or AS/NZS 60335.1:2011 (incorporating amendment Nos 1, 2 and 3); and

 UL 2272 - Outline of Investigation for Electrical Systems for Self-balancing Scooters (UL 2272).

However, neither the text of the instrument nor the ES expressly states the manner in which these standards are incorporated.

The committee's usual expectation where instruments incorporate extrinsic material by reference is that the manner of incorporation is clearly specified in the instruments and, ideally, in the ESs. The committee regards this as a best-practice approach that enables anticipated users or persons affected by any such instrument to understand its

44

operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Access to extrinsic material

The committee commented as follows:

As noted above, the instrument sets out requirements that incorporate various parts of three standards.

The committee notes that the above referenced standards are available for sale for a fee. However, neither the instrument nor the ES provides information about whether the standards are otherwise freely and readily available.

The committee's expectations where provisions allow the incorporation of legislative provisions by reference to other documents generally accord with the approach of the Senate Standing Committee on Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates extrinsic material that is not readily and freely available to the public. Generally, the committee will be concerned where relevant information, including standards or industry databases, is not publically available or is available only if a fee is paid, such that those obliged to obey the law may have inadequate access to its terms.

The committee understands that there are cases in which incorporated material will, in practice, only be accessed by persons acting in commercial or regulatory environments, and that in these environments the required fee will not present an unreasonable barrier to access. In this respect, the committee recognises that the implementation of the instrument appears to occur in a specific regulatory environment; and that it may be unlikely that persons outside this regulatory sphere would require access to the standards incorporated by the instrument. However, the committee considers that a best-practice approach in such cases is for administering agencies and departments to have in place arrangements for users outside of the particular commercial or regulatory sector to access such material on a fee-free basis.

The committee draws this matter to the minister's attention.

Agency's response

The Australian Competition and Consumer Commission (ACCC) advised:

Extrinsic material

The instrument did not expressly state that the standards specified were the versions that applied at its commencement. However, the titles of the specified International Electrotechnical Commission (IEC) standards are unique identifiers that reflect the publication date for that particular version of the standard. That is, the instrument incorporates the standards IEC 62133 Edition 2.0 2012-12, IEC 60335-1 Edition 5.1 2013-12 and AS/NZS 60335.1:2011. The underlined sections (added) specify the edition of the standard incorporated by the instrument. In each case, this was the standard as it applied at the date of commencement.

45

The instrument also incorporates the UL 2272 standard that Underwriters Laboratories Inc. developed earlier this year and that applied at the date of commencement. When the Minister made the instrument, there was only one version of this standard.

Access to extrinsic material

…In this case, as the Committee has commented, it is likely that access to these standards would primarily be sought by testing laboratories and by hoverboard designers and manufacturers.

Where practicable, product safety legislative instruments are complete, self-contained instruments that do not reference extrinsic material. However, many product safety legislative instruments need to incorporate extrinsic technical standards. For this reason, the ACCC has over several years attempted to negotiate free public access to those extrinsic standards with Standards Australia. Unfortunately, those negotiations have been unsuccessful.

Product safety standards tend to be long, complex and technical in nature, and people outside the specific regulatory or commercial sphere to which they relate are highly unlikely to seek them. In practice, consumers and retailers cannot verify compliance with standards themselves and only need to identify the standards so they can specify them in purchasing agreements and when they submit goods for assessment by test laboratories.

Safety standard instrument

On 5 July 2016, the Minister made a safety standard for self-balancing scooters, previously known as hoverboards [F2016L01180] that started on 17 July 2016 and is in force for two years. It effectively replaced the interim ban and has the same technical requirements. The safety standard instrument addresses the issues raised by the Committee:

• The safety standard instrument expressly specifies the versions of the referenced standards including the dates of publication and purchasing instructions.

• The explanatory statement advises that we can make copies of the referenced standards available for viewing free of charge at ACCC offices in all state and territory capital cities and in Townsville.

To date, no member of the public has approached the ACCC for access to any of the standards incorporated in any of these legislative instruments.

Committee's response

The committee thanks ACCC for its response and has concluded its examination of the instrument.

The committee notes ACCC's advice that it had previously undertaken to negotiate free public access to extrinsic standards with Standards Australia but that the negotiations have been unsuccessful.

The committee also thanks ACCC for its advice that copies of incorporated standards are available for viewing free of charge at ACCC offices in all state and territory capital cities and in Townsville.

46

Instrument Australian Crime Commission (National Policing

Information Charges) Determination 2016 [F2016L00678]

Purpose Determines the charges payable to the Australian Crime

Commission for conducting criminal history checks

Last day to disallow 21 November 2016

Authorising legislation Australian Crime Commission (National Policing Information Charges) Act 2016

Department Attorney-General's

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Unclear basis for determining fees

The committee commented as follows:

The determination sets various charges that the Australian Crime Commission may impose for conducting a criminal history check. The charge for a criminal history check is $21.00 when conducted for police; $23.00 when conducted for an accredited body; and $7.00 when conducted in relation to a volunteer. However, while noting that the determination 'preserves existing charging arrangements and amounts', the ES does not explicitly state the basis on which the charges have been calculated.

The committee's usual expectation in cases where an instrument of delegated legislation carries financial implications via the imposition of or change to a charge, fee, levy, scale or rate of costs or payment is that the relevant ES makes clear the specific basis on which an individual imposition or change has been calculated.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Justice advised:

The Determination was intended to continue the pricing structure used by the former CrimTrac Agency, prior to its merger with the ACIC. This continuity in pricing was intended to provide certainty to stakeholders throughout the transition process associated with the merger.

The former CrimTrac Board considered and endorsed for implementation the current pricing structure as part of the 2013-14 budget, with effect from 1 January 2014. The costs for accredited agencies and police were calculated to recover the full costs of all CrimTrac services at the time, whereas the volunteer checks were set at a level that only recovered the cost of the national police checking service. This also reflected CrimTrac's policy to provide checks relating to volunteers at a discounted rate. The difference in the cost of the charge between accredited agencies and

47

police was due to the calculated cost of the additional administrative process involved in accrediting and auditing the accredited agencies. The pricing structure was considered and reconfirmed by the former CrimTrac Board annually.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

However, the committee reiterates its expectation that, in cases where delegated legislation carries financial implications via the imposition of or change to a charge, fee, levy, scale or rate of costs or payment, the relevant ES makes clear the specific basis on which an individual imposition or change has been calculated.

Instrument Australian Prudential Regulation Authority instrument fixing charges No. 2 of 2016 [F2016L01043]

Purpose Fixes charges for models-based capital adequacy requirements for authorised deposit-taking institutions for 2015-16

Last day to disallow 21 November 2016

Authorising legislation Australian Prudential Regulation Authority Act 1998

Department Treasury

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Consultation

The committee commented as follows:

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the instrument states:

The annual levies consultation process explicitly adopts the Wallis Inquiry recommendations that direct services be met by specific user charges, resulting in a compensating reduction of the total general levies to be collected from industry participants [1].

Before making the instrument, APRA informed the affected ADIs of the proposed charges.

48

[1] See the Consultation Paper Proposed Financial Industry Levies for 2015-16 at The Treasury website.

However, while the committee does not interpret paragraphs 15J(2)(d) and (e) of the Legislation Act 2003 as requiring a highly detailed description of consultation undertaken, the committee does not consider that the general statement that the 'annual levies consultation process explicitly adopts the Wallis Inquiry recommendations' with reference to a consultation paper, is sufficient to meet the requirement that the ES describe the nature of any consultation undertaken.

Where consultation has taken place, the committee considers that a best-practice approach is for the ES to an instrument to set out the method of the consultation; the bodies, groups and/or individuals consulted; and the issues raised in and outcomes of the consultation process.

The committee's expectations in this regard are set out in the guideline on consultation contained in Appendix 2.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

Minister's response

The Treasurer advised:

I have raised the Committee's concerns with the Australian Prudential Regulation Authority (APRA), who are responsible for making the Instrument. APRA notes that the charges imposed by the Instrument are fully expected, as APRA has been imposing fixed charges on certain members of the financial industry for the accreditation and assessment of models-based capital adequacy for over 10 years. Nevertheless, APRA conducts a simple consultation for each set of fixing charges annually.

For the charges imposed in 2015-16 by the Instrument, the relevant officers at all of the entities specified in the Instrument (see table below) were contacted, advised of APRA's intention to continue to charge for this accreditation work, and invited to raise any questions or concerns, prior to the charging occurring. In the cases of Bendigo and Adelaide Bank Limited and Suncorp-Metway Limited, who received the charges for the first time, prior contact was made by the relevant APRA supervisor with these entities to ensure the correct contact person was identified.

Consulted entity Consulted person

Australia and New Zealand Banking Group Limited

Chief Risk Officer

Commonwealth Bank of Australia Chief Risk Officer

National Australia Bank Limited Group Chief Risk Officer

Westpac Banking Corporation Chief Risk Officer

Macquarie Bank Limited Executive Director - Risk

Management Group

ING Bank (Australia) Limited Chief Financial Officer

49

Bendigo and Adelaide Bank Ltd Chief Risk Officer

Suncorp-Metway Limited Chief Risk Officer Banking &

Wealth

No questions (or other comments) in regards to the charges were received by APRA from the entities in question. Therefore, the outcome of the consultation process was that no objections against the charges were received, and charging commenced. All entities have subsequently paid the charges in full.

APRA has also indicated that, in response to the Committee's query, it will update the Explanatory Statement for the Instrument with a description of the consultation process outlined above, and will arrange for its approval and registration on the Federal Register of Legislation as soon as practicable. APRA will also commit to providing appropriate and fuller descriptions of its consultation process in subsequent explanatory material it issues in relation to these charges.

Committee's response

The committee thanks the Treasurer for his response and has concluded its examination of the instrument.

The committee notes the Treasurer's undertaking that APRA will amend the ES to include a description of consultation.

Instrument Building Energy Efficiency Disclosure (Disclosure

Affected Buildings) Determination 2016 [F2016L01148]

Building Energy Efficiency Disclosure Determination 2016 [F2016L01276]

Purpose The determinations specify buildings, and areas of buildings, that are disclosure affected for the purposes of the Building Energy Efficiency Disclosure Act 2010; and set assessment methods and standards for building energy efficiency

Last day to disallow 21 November 2016

Authorising legislation Building Energy Efficiency Disclosure Act 2010

Department Environment and Energy

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Access to incorporated documents

The committee commented as follows:

50

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of a legislative instrument, unless authorising or other legislation alters the operation of section 14.

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee on Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that section 4 of the determinations incorporate, as in force at the commencement of the determinations, the document Method of Measurement for Lettable Area (the measurement method). A note to section 4 states:

The document Method of Measurement for Lettable Area is available from the Property Council of Australia Limited’s website at http://www.propertyoz.com.au.

However, the committee notes that the measurement method is only available for a fee of $210 from the Property Council of Australia Limited, and the ESs do not provide any information as to whether the measurement method is otherwise freely available.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for the Environment and Energy advised:

The Committee has identified that the measurement standards for Net Lettable Area (NLA) referenced in the instrument are published by the Property Council of Australia Limited (PCA). The standard is readily available from the PCA, but a fee applies.

The Building Energy Efficiency Disclosure Act (the BEED Act) establishes the Commercial Building Disclosure (CBD) Program, which requires the public disclosure of energy efficiency information relating to large commercial office spaces. The aim of the CBD Program is to improve the energy efficiency of Australia's large office buildings, ensuring prospective buyers and tenants have access to consistent and accurate energy efficiency information about office spaces to better inform sale and leasing decisions.

The CBD Program incorporates and makes use of the pre-existing National Australian Built Environment Rating System (NABERS) program. NABERS is managed nationally by the NSW Office of Environment and

51

Heritage (OEH), on behalf of Commonwealth, state and territory governments and provides a framework for rating and comparing the sustainability performance of buildings. The CBD Program requires building owners and lessors to display a certified NABERS rating when advertising commercial office buildings for sale or lease.

A key component of the NABERS rating system is the measurement of relevant building floor area, a significant moderating factor when comparing building sustainability performance. The PCA Method of Measurement for Lettable Area 1997 is the accepted industry standard for measuring the floor area of commercial office space in the Australian property market, and has been used as the standard for measuring building floor area from the inception of the NABERS program in 1998.

While the referenced NLA method is available only for a fee, it should be noted the BEED Act does not apply to the general public, but rather it applies to building owners and lessors of large commercial office spaces. Further, building owners and lessors do not need to purchase the method. It is used by CBD Assessors to provide NABERS ratings for the owners and lessors. There are currently 180 accredited CBD assessors.

CBD Assessors must undertake a CBD training course and associated accreditation exams to achieve CBD accreditation and be allowed to participate in the program. These accreditation processes help to maintain the high quality standards required for the CDB program. It is a prerequisite to becoming a CBD Assessor that the person holds NABERS accreditation. NABERS accreditation is used for a range of purposes beyond the CBD program. The assessor will, therefore, need to have purchased the NLA method prior to seeking CBD accreditation.

While there are various costs for CBD Assessors associated with training courses and accreditation, the additional cost of procuring the NLA method is a once-off, minimal cost in comparison to other accreditation costs. Accordingly, the Australian Government does not consider the fee to be an unreasonable impost on persons affected by the law.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee also welcomes the minister's additional advice that the incorporated measurement method is used by Commercial Building Disclosure Assessors (of which there are currently 180) to provide National Australian Built Environment Rating System ratings for the owners and lessors of large commercial buildings; and that the Government does not consider the fee for accessing the measurement method to be an unreasonable impost on persons affected by the law.

However, the committee reiterates its concerns about the incorporation of documents where there is a cost to access the material. The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to

52

the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms. In addition to access for industry members, the committee is interested in the broader issue of access for other parties who might be affected by, or are otherwise interested in, the law.

Instrument CASA 27/16 - Instructions — use of Global Navigation Satellite System (GNSS) [F2016L00475]

Purpose Contains instructions for the use of GNSS in certain flight

navigation under the Instrument Flight Rules

Last day to disallow 13 October 2016

Authorising legislation Civil Aviation Regulations 1988

Department Infrastructure and Transport

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Incorporation of extrinsic material

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows for the incorporation of extrinsic material into instruments. Commonwealth legislative material may be incorporated as in force from time to time or at a particular date. Non-legislative material may only be incorporated as in force at the commencement of the instrument, unless authorising or other legislation alters the operation of section 14.

The committee notes that subsection 98(5D) of the Civil Aviation Act 1988 operates to allow the instrument to incorporate non-legislative material as in force at a particular date or as in force from time to time.

Section 1 of Schedule 1 of the instrument defines key terms used in the instrument, including the following:

 NAT Doc 007 means the ICAO document titled Guidance concerning Air Navigation in and above the North Atlantic MNPS Airspace, Edition 2011, or later edition, published on behalf of the North Atlantic Systems Planning Group (NAT SPG) by the European and North Atlantic Office of ICAO; and

 Type 1 LOA has the meaning given by CAO 20.91.

However, neither the text of the instrument nor the ES expressly state the manner in which the ICAO document titled Guidance concerning Air Navigation in and above the North Atlantic MNPS Airspace (ICAO document) and CAO 20.91 are incorporated.

53

Regarding Type 1 LOA, the committee acknowledges that section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) has the effect that references to external documents which are Commonwealth disallowable instruments (such as the CAO 20.91) can be taken to be references to versions of those instruments as in force from time to time.

However, the committee's usual expectation where an instrument incorporates extrinsic material by reference is that the manner of incorporation is clearly specified in the instrument and, ideally, in the ES. The committee regards this as a best-practice approach that enables anticipated users or persons affected by any such instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee therefore considers that, notwithstanding the operation of section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003), and in the interests of promoting clarity and intelligibility of an instrument to anticipated users, instruments (and, ideally, their accompanying ESs) should clearly state the manner of incorporation of extrinsic material.

Regarding NAT Doc 007, as the ICAO document is not a Commonwealth legislative instrument, the above construction does not apply. The manner of incorporation of this document is therefore unclear to the committee.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The acting Minister for Infrastructure and Transport advised:

CASA has advised that in future it will ensure that legislative instruments that reference another instrument or document, will reference it as in force from time to time, unless it is intended that the reference only be to the version of the document in force at the time of the making of the new instrument.

The Committee also noted that regarding NAT Doc 007, as this International Civil Aviation Organization document is not a Commonwealth legislative instrument, the manner of incorporation of this document is unclear. CASA has advised that the basis of incorporation is subsection 98(5D) of the Civil Aviation Act 1988, which operates to allow the instrument to incorporate non-legislative material as in force at a particular date or as in force from time to time. The definition of NAT Doc 007 in the instrument makes it clear that it is the edition of that publication in force at a particular time that must be considered.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee understands the minister's advice to mean that Nat Doc 007 is incorporated as in force at the commencement of the instrument.

54

Instrument CASA EX50/16 - Exemption — CASR Subpart 99.B DAMP requirements for foreign aircraft AOC holders [F2016L00373]

Purpose Exempts foreign aircraft air operator's certificate holders

engaged in international air navigation in Australia from the requirement to have a drug and alcohol management plan

Last day to disallow 13 October 2016

Authorising legislation Civil Aviation Safety Regulations 1998

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(d)

Previously reported in Delegated legislation monitor 5 of 2016

Matter more appropriate for parliamentary enactment

The committee commented as follows:

Scrutiny principle (d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via primary rather than delegated legislation). This may include instruments which extend relief from compliance with principal legislation.

The instrument exempts foreign aircraft air operator's certificate (AOC) holders from the requirement to have a drug and alcohol management plan (DAMP) prescribed in Part 99 of Civil Aviation Safety Regulations 1998 (the regulations) provided that certain conditions are met. The committee also notes that the instrument extends, until 22 March 2019, the previous:

 three-year relief provided by CASA EX33/13 [F2013L00542];

 one-year relief provided by CASA EX 146/12 [F2012L01936];

 one-year relief provided by CASA EX 37/11 [2011L00463];

 one-year relief provided by CASA EX 12/10 [F2010L00379]; and

 one-year relief provided by CASA EX 09/09 [F2009L00847].

The ES for this instrument states:

CASR Part 99 effectively came into operation with the implementation of DAMPs and preliminary testing [on 23 September 2008].

At that time, CASA considered that it was not realistically possible for many of the foreign AOC holders, for whom Australian international operations are only a component of their broader international operations,

55

to make a full conversion of their existing drug and alcohol control policies to CASR Part 99 DAMP requirements.

In light of the purpose and significant duration of the exemption, the committee notes its general preference that exemptions are not used or do not continue for such time as to operate as de facto amendments to principal legislation (in this case the regulations). However, no information is provided in the ES as to why the exemption continues to be used in favour of an amendment to the relevant DAMP provisions of the regulations.

The committee seeks the advice of the minister in relation to this matter.

Minister's response

The acting Minister for Infrastructure and Transport advised:

CASA provided drafting instructions to the Office of Parliamentary Counsel in February 2016, for proposed amendments to Part 99, which include changing requirements for foreign aircraft AOC holders, which are currently being progressed.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

Instrument CASA EX57/16 - Exemption — for seaplanes

[F2016L00466]

Purpose Exempts the pilot in command of a seaplane that is landing on,

or taking-off from, water from compliance with specific requirements in the Civil Aviation Regulations 1988

Last day to disallow 13 October 2016

Authorising legislation Civil Aviation Safety Regulations 1998

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(d)

Previously reported in Delegated legislation monitor 5 of 2016

Matter more appropriate for parliamentary enactment

The committee commented as follows:

Scrutiny principle (d) of the committee's terms of reference requires the committee to consider whether an instrument contains matters more appropriate for parliamentary enactment (that is, matters that should be enacted via primary rather than delegated

56

legislation). This may include instruments which extend relief from compliance with principal legislation.

The instrument exempts a pilot in command of a seaplane from compliance with three requirements in regulation 166 of Civil Aviation Regulations 1988 (the regulations), provided certain conditions are met. The committee also notes that that the instrument extends, until 31 March 2019, the previous:

 three-year relief provided by CASA EX37/13 [F2013L00571];

 six-month relief provided by CASA EX49/10 [F2010L01534];

 eighteen-month relief provided by CASA EX01/09 [F2009L00105];

 three-year relief provided by CASA EX 61/05 [F2005L04295]; and

 three-year relief provided by CASA EX 09/2003 [F2005B00525].

The ES for this instrument states:

…the exemption has been issued and reissued at least as far back as exemption EX61/05. It is required because there are some circumstances in which strict adherence by the pilot in command of a seaplane to the rules the subject of the exemption may be inappropriate.

In light of the purpose and significant duration of the exemption, the committee notes its general preference that exemptions are not used or do not continue for such time as to operate as de facto amendments to principal legislation (in this case the regulations). However, no information is provided in the ES as to why the exemption continues to be used in favour of an amendment to the relevant provisions of the regulations.

The committee seeks the advice of the minister in relation to this matter.

Minister's response

The acting Minister for Infrastructure and Transport advised:

Proposed Part 91 of the CASR will negate the need for an exemption. A draft of Part 91 has been the subject of public consultation. CASA has published a regulatory program timeline at https://www.casa.gov.au/files/ new-regulatory-timeline-2016jpg which indicates Part 91 is scheduled to be brought forward in September 2017 and commence in September 2018.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

57

Instrument Comptroller-General of Customs Directions (Use of Force - Norfolk Island) 2016 [F2016L01033]

Purpose Sets out directions relating to the deployment and use of

approved firearms and other approved items of personal defence equipment, and the use of force in the performance of duties, that apply to officers of Customs exercising powers on Norfolk Island

Last day to disallow 21 November 2016

Authorising legislation Customs Act 1901

Department Immigration and Border Protection

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Incorporation of documents

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above the committee notes that sections 3 and 4 of the directions incorporate Operational Safety Order (2015) (the safety order). However, neither the text of the directions nor the ES expressly states the manner in which the safety order is incorpora

ted.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Description of and access to incorporated documents

The committee commented as follows:

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

58

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee on Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that, while sections 3 and 4 of the directions incorporate the safety order, neither the text of the instrument nor the ES provides a description of the safety order or indicates how it may be freely obtained. While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of an incorporated document fails to satisfy the requirements of the Legislation Act 2003. However, in this case the committee notes that the safety order is available for free online.2 Where an incorporated document is available for free online, the committee considers that a best-practice approach is for the ES to an instrument to provide details of the website where the document can be accessed.

The committee draws this matter to the minister's attention.

Minister's response

The Minister for Immigration and Border Protection advised:

As the safety order is not a legislative instrument, it is incorporated as in force at the commencement of the Direction. In future, the circumstances in which a document is incorporated in a legislative instrument will be clearly set out in the legislative instrument and in its Explanatory Statement.

The Committee also noted that although sections 3 and 4 of the Directions incorporate the safety order, there is no description of the safety order or an indication of how it may be freely obtained. This would normally fail to satisfy the requirements of section 15J(2) of the Legislation Act 2003, however in this case the Explanatory Statement does state that the safety order may be obtained from the Department, while the Committee noted that the safety order is accessible online. This is not expressly stated in the Explanatory Statement but in future will also be included.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee also thanks the minister for his advice that where future instruments incorporate documents the manner of incorporation and information about where incorporated documents can be accessed online will be clearly stated in the ES.

2 See Australian Government, Department of Immigration and Border Protection, http://www.border.gov.au/about/access-accountability/plans-policies-charters/policies/practice- statements/border (accessed 9 September 2016).

59

Instrument Defence Determination 2016/8, Field allowance- amendment

Defence Determination 2016/10, Additional recreation leave-amendment3

Purpose These instruments amend Defence Determination 2005/15 in relation to field allowances and additional recreation leave

Last day to disallow 10 October 2016

Authorising legislation Defence Act 1903

Department Defence

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Incorporation of extrinsic material

The committee commented as follows:

By virtue of former section 58B of the Defence Act 1903 (Defence Act) and section 7 of the former Legislative Instruments Act 2003, these determinations are disallowable non-legislative instruments.4 Section 58B of the Defence Act provided that paragraph 46AA(1)(a) of the Acts Interpretation Act 1901 applied to these determinations such that the provisions of a determination made by the Defence Force Remuneration Tribunal (DFRT) under section 58H of the Defence Act may be incorporated as in force at a particular time or as in force from time to time.

With reference to the above, the committee notes that the instruments substitute the following definitions into Defence Determination 2005/15:

Field service: The same meaning as in DFRT Determination No. 11 of 2013, ADF allowances.

Special service: Means service performed in either of the following circumstances.

a. For the purposes of Division B.12 in DFRT Determination No. 11 of 2013, ADF Allowances.

3 The committee notes that the issue raised also applies to Defence Determination 2016/16, Recruit instructors and ADF gap year - educational bonus - amendment [F2016L00543].

4 These provisions apply to these instruments as they were made before the commencement of the Acts and Instruments (Framework Reform) Act 2015 on 5 March 2016. Following the commencement of this Act, Defence Determinations are now legislative instruments and are registered on the Federal Register of Legislation.

60

b. For the purposes of Division B.14 in DFRT Determination No. 11 of 2013, ADF Allowances.

However, neither the text of the instruments nor the ESs expressly states the manner in which DFRT Determination No. 11 of 2013, ADF Allowances (which were made by DFRT under section 58H of the Defence Act) is incorporated.

The committee's usual expectation where instruments incorporate extrinsic material by reference is that the manner of incorporation is clearly specified in the instruments and, ideally, in the ESs. The committee regards this as a best-practice approach that enables anticipated users or persons affected by any such instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Defence advised:

With the amendments made to the Legislation Act 2003 in March 2016, Defence was required to remake its principal determination for Australian Defence Force conditions of service to comply. The new principal determination, Defence Determination 2016-19, Conditions of service, commenced on 1 July 2016 and repealed the previous principal determination. Any changes to amending determinations made between March and June 2016 would be of no effect because they related to a repealed principal determination.

Therefore, instead of remaking the amending instruments identified by the committee, Defence is reviewing the new principal Defence determination, and will make any necessary amendments to the principal instrument so that the manner of incorporation is clearly specified in both the instrument itself and the explanatory statement as desired by the committee. This will enable users to understand its operation without the need to rely on specialist legal knowledge or advice, or to consult extrinsic material.

Defence has also reviewed its legislative instrument templates and made the required adjustments in order to ensure the issues the committee raised in the monitor are not repeated in the future.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instruments.

The committee also thanks the minister for her advice that the Department of Defence has reviewed its legislative instrument templates and made adjustments to ensure that where future instruments incorporate documents the manner of incorporation will be clearly specified.

The committee also notes the minister's undertaking that the Department of Defence is reviewing the new principal determination, and will make any necessary amendments to address the committee's concerns about the manner of incorporation of DFRT Determination No. 11 of 2013.

61

Instrument Defence Determination 2016/15, Dependants - amendment [F2016L00509]5

Purpose Amends Defence Determination 2005/15 to revise and

restructure the definitions relating to a member's dependants and categorisation

Last day to disallow 7 November 2016

Authorising legislation Defence Act 1903

Department Defence

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

No description of consultation

The committee commented as follows:

Prior to 5 March 2016 determinations made under section 58B of the Defence Act 1903 (Defence Act) were disallowable non-legislative instruments by virtue of former section 46B of the Acts Interpretation Act 1901. However, following the commencement of the Legislation Act 2003, determinations made under section 58B are now disallowable legislative instruments and therefore subject to the provisions of the Legislation Act 2003, including section 17.

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the instrument provides no information regarding consultation.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

5 The committee notes that the issue raised also applies to a number of recent instruments: Defence Determination 2016/12, Post indexes - amendment [F2016L00427]; Defence Determination 2016/14, Hardship allowance - amendment [F2016L00487]; Defence Determination 2016/13, Deployment allowance - amendment [F2016L00488]; Defence Determination 2016/15, Dependants - amendment [F2016L00509]; and Defence Determination 2016/16, Recruit instructors and ADF gap year - educational bonus - amendment [F2016L00543].

62

Minister's response

The Minister for Defence advised:

The Department of Defence has submitted revised explanatory statements for each of the determinations, which did not include a description of consultation. The revised statements include information about the relevant consultation processes in accordance with section 17 of the Legislation Act 2003.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee also notes that a replacement ES has been registered on the Federal Register of Legislation and received by the committee. The replacement ES includes a description of consultation in accordance with the requirements of the Legislation Act 2003.

Instrument Defence Determination 2016/19, Conditions of service [F2016L00643]

Purpose Sets conditions of Australian Defence Force service and

preserves accrued rights and liabilities under

Defence Determination 2005/15, Conditions of Service

Last day to disallow 21 November 2016

Authorising legislation Defence Act 1903

Department Defence

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Incorporation of documents

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that section 14.4.4 of the determination defines the term international best fare as having the meaning given in the Department of Finance Resource Management Guide No. 405 (the guide).

63

However, neither the text of the determination nor the ES expressly states the manner in which the guide is incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Defence Personnel advised:

The committee raised a similar issue in relation to Defence Determinations identified in its previous Delegated Legislation Monitor No. 5 of 2016. The Minister for Defence, Senator the Hon Marise Payne, responded to the committee's previous concern on 22 September 2016.

The Department of Defence is reviewing Defence Determination 2016/19, as amended, and will amend this instrument so that the manner of incorporation of all extrinsic material is clearly specified in both the instrument itself and the explanatory statement as requested.

This will enable users to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material. This work is in progress.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee notes the minister's undertaking that the Department of Defence will amend the determination to specify the manner of incorporation of extrinsic material.

64

Instrument Defence Trade Controls Act 2012 - Foreign Country List [F2016L00548]

Purpose Provides exemptions to brokering offences under the Defence Trade Controls Act 2012 to allow certain goods and technology to be brokered without a permit

Last day to disallow 8 November 2016

Authorising legislation Defence Trade Controls Act 2012

Department Defence

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Drafting

The committee commented as follows:

Subsection 15G(1) of the Legislation Act 2003 requires rule-makers to lodge legislative instruments for registration as soon as practicable after the instrument is made.

With reference to this requirement, the committee notes that the Defence Trade Controls Act 2012 - Foreign Country List [F2016L00548] (the list) was made by former Defence Minister Kevin Andrews on 12 May 2015. However, as the list was not registered until 20 April 2016, it is unclear to the committee whether the list was registered in accordance with subsection 15G(1) of the Legislation Act 2003.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Defence advised:

The delay in registering the instrument was an administrative oversight by the Department of Defence, which was identified earlier this year during preparations for the commencement of the offence provisions in the Defence Trade Controls Act 2012. Additionally, Defence had omitted to seek ministerial approval of the supporting documentation required for registration of the instrument.

Following my approval of the supporting documentation, the instrument was promptly registered on the Federal Register of Legislative Instruments. While the instrument was not registered immediately after being made by the then Minister for Defence, the Hon Kevin Andrews MP, steps were taken to have it registered as soon as practicable after the oversight was identified.

The Defence Export Controls Branch, which administers the Defence Trade Controls Act 2012 within Defence, has now established a process where all

65

legislative instruments will be coordinated with Defence Legal Division to assist the proper approval and registration of legislative instruments in accordance with the Legislation Act 2003.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee also understands that the list commenced on 21 April 2016 (the day after it was registered).

Instrument Electoral and Referendum Regulation 2016 [F2016L00399]

Purpose Provides for an electronically assisted voting method for

electors who are sight-impaired, provision of electoral roll information to prescribed Commonwealth agencies for specified purposes, and provision of electoral roll information to entities that have reporting obligations under the Anti-Money Laundering and Counter-Terrorism Financing Act 2006

Last day to disallow 13 October 2016

Authorising legislation Commonwealth Electoral Act 1918; Referendum (Machinery Provisions) Act 1984

Department Finance

Scrutiny principle Standing Order 23(3)(b)

Previously reported in Delegated legislation monitor 5 of 2016

Insufficient information regarding strict liability offences

The committee commented as follows:

Sections 23 and 24 of the regulation set out strict liability offences relating to the handling and scrutiny of ballot papers. These offences each carry a penalty of 5 penalty units.

Given the limiting nature and potential consequences for individuals of strict and vicarious liability offence provisions, the committee generally requires a detailed justification for the inclusion of any such offences (particularly strict liability offences) in delegated legislation. The committee notes that in this case the ES provides no explanation of or justification for the framing of the offences.

The committee requests the advice of the minister in relation to this matter.

66

Minister's response

The Special Minister of State advised:

The Regulation was made to repeal and replace the Electoral and Referendum Regulations 1940 (the 1940 Regulation) which was due to sunset on 1 April 2016. The Regulation was based on the 1940 Regulation and no substantive changes were made. In particular, there were no changes to sections 23 and 24 (formerly regulations 50 and 51 of the 1940 Regulation) which were included in the Regulation as a result of the introduction of electronically assisted voting in 2007 (see Electoral and Referendum Amendment Regulations 2007 (No.3); Electoral and Referendum Legislation Amendment Act 2007).

I note that the provisions introduced in 2007 were modelled off the pre-poll voting regime in the Electoral Act and the Referendum (Machinery Provisions) Act 1984 (Referendum Act) and as a result the offence provisions set out in the Regulation are consistent with the offence provisions set out in section 200J of the Electoral Act and section 73H of the Referendum Act.

In addition to the harmonisation of offences across the electoral framework, it was considered important that the failure to follow the requirements for the scrutiny of ballot papers should be considered a serious offence which should be accompanied by a prescribed penalty commensurate to the offence. As such the electoral legislative framework provides that offences such as those set out in section 200J of the Electoral Act, section 73H of the Referendum Act and sections 23 and 24 of the Regulation are offences of strict liability.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee notes the minister's advice that the strict liability offences included in the regulation are identical to those included in the previous regulation and comparable to offence provisions set out in the Commonwealth Electoral Act 1918 and the Referendum (Machinery Provisions) Act 1984. However, the committee reiterates its expectation that, where an instrument makes provision for offences, the ES provide a full justification for the need, scope and framing of those offences. This is particularly so in cases of strict liability.

The committee further draws the minister's attention to the discussion of strict and absolute liability offences in the Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notice and Enforcement Powers,6 as providing

6 Attorney-General's Department, Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers (September 2011), https://www.ag.gov.au/Publications/ Documents/GuidetoFramingCommonwealthOffencesInfringementNoticesandEnforcementPow ers/A%20Guide%20to%20Framing%20Cth%20Offences.pdf (accessed 12 October 2016).

67

useful guidance for justifying the use of strict liability offences in accordance with the committee's scrutiny principles.

Instrument Environment Protection and Biodiversity Conservation Act 1999 - Section 269A - Instrument Adopting Recovery Plan (Mallee Emu-Wren, Red-lored Whistler, Western Whipbird) (02/05/2016) [F2016L00655]

Environment Protection and Biodiversity Conservation Act 1999 - Section 269A - Instrument Adopting Recovery Plan (Spotted-tailed Quoll) (02/05/2016) [F2016L00657]

Environment Protection and Biodiversity Conservation Act 1999 - Section 269A - Instrument Adopting Recovery Plan (Mountain Pygmy-Possum) (02/05/2016) [F2016L00658]

Environment Protection and Biodiversity Conservation Act 1999 - Section 269A - Instrument Adopting Recovery Plan (Orange-bellied Parrot) (02/05/2016) [F2016L00662]

Purpose These instruments adopt national recovery plans for certain

listed species

Last day to disallow 21 November 2016

Authorising legislation Environment Protection and Biodiversity Conservation Act 1999

Department Environment and Energy

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Consultation

The committee commented as follows:

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriat e consultation, as is reasonably practicable, has been undertaken in relation

to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that, under subsection 277(1) of the Environment Protection and Biodiversity Conservation Act 1999 (the Act), the minister must not adopt a recovery plan unless he or she is satisfied that an appropriate level of consultation was undertaken in the preparation of the plan. The ESs to the instruments state that the minister was satisfied that an

68

appropriate level of consultation was undertaken in the preparation of the adopted plans.

However, while the committee does not interpret paragraphs 15J(2)(d) and (e) of the Legislation Act 2003 as requiring a highly detailed description of consultation undertaken, the committee does not consider that the general statement that the minister was satisfied that an appropriate level of consultation had occurred is sufficient to meet the requirement that the ES describe the nature of any consultation undertaken.

The committee's expectations in this regard are set out in the guideline on consultation contained in Appendix 2.

The committee requests the advice of the minister in relation to this matter; and requests that the ESs for each instrument be updated in accordance with the requirements of the Legislation Act 2003.

Minister's response

The Minister for the Environment and Energy advised:

These instruments adopt national recovery plans for listed threatened species under section 269A of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). Section 269A(7) allows the Minister to adopt, by written instrument, a plan made by a State or Territory government or agency as a national recovery plan for a listed threatened species or ecological community.

All four instruments adopt, as national recovery plans, plans prepared by the Victorian Department of Environment, Land, Water and Planning (Victorian Department). The Department of the Environment and Energy, then the Department of Sustainability, Environment, Water, Population and Communities, facilitated consultation on the plans before they were finalised by the Victorian Department.

Details of the consultation that took place for each draft plan are set out below. Section 277 of the EPBC Act provides that the Minister may only adopt a plan if he or she is satisfied that an appropriate level of consultation took place in making the plan. The Minister was satisfied that an appropriate level of consultation occurred for each plan prior to making.

The Department will ensure that future plans more clearly address the nature of the consultation that was undertaken.

a. Recovery Plan/or the Mallee Emu-Wren, Red-lored Whistler, Western Whipbird

The Department sought public comments on this plan between 7 March 2012 and 4 May 2012. The plan was placed on the Department's external website, and notices inviting comments were placed in the Commonwealth of Australia Government Notices Gazette and The Australian newspaper. No submissions were received. South Australia and NSW were also consulted during the drafting of the recovery plan, as the species covered by the plan occurs within their jurisdictions.

b. Recovery Plan for the Spotted-tailed Quoll

69

The Department sought public comments on this plan between 19 March 2010 and 19 May 2010. The plan was placed on the Department's external website, and notices inviting comments were published in the Australia Government Notices Gazette and The Australian newspaper. No submissions were received. Tasmania, Queensland, NSW and the ACT were also consulted during the drafting of the recovery plan, as the spotted-tailed quoll occurs within their jurisdictions.

c. Recovery Plan for the Mountain Pygmy-Possum

The Department sought public comments on this plan between 18 June 2010 and 20 August 2010. The plan was placed on the Department's external website, and notices inviting comments were published in the Australia Government Notices Gazette and The Australian newspaper.

The Department received eight submissions on the plan, which were provided to the Victorian Department and taken into account when the plan was finalised. NSW and the ACT were also consulted during the drafting of the recovery plan, as the mountain pygmy-possum occurs within their jurisdictions.

d. Recovery Plan for the Orange-bellied Parrot

The Department sought public comments on this plan between 30 July 2014 and 7 November 2014. The plan was placed on the Department's external website, and notices inviting comments were published in the Australia Government Notices Gazette and The Australian newspaper.

The Department received 38 submissions. These were provided to the Victorian Department and considered by the Department's Orange-bellied Parrot Recovery Team before the plan was finalised. Tasmania, South Australia and NSW were also consulted, as the orange-bellied parrot occurs within their jurisdictions, as were affected Commonwealth agencies.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instruments.

The committee also thanks the minister for his advice that future ESs to instruments that adopt national recovery plans for listed threatened species under section 269A of the Act will more clearly address the nature of the consultation that was undertaken.

70

Instrument Financial Framework (Supplementary Powers) Amendment (Industry, Innovation and Science Measures No. 1) Regulation 2016 [F2016L00513]

Purpose Amends Schedule 1AB to the Financial Framework

(Supplementary Powers) Regulations 1997 to establish legislative authority for spending activities administered by the Department of Industry, Innovation and Science

Last day to disallow 7 November 2016

Authorising legislation Financial Framework (Supplementary Powers) Act 1997

Department Finance

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Addition of matters to Schedule 1AB of the Financial Framework (Supplementary Powers) Regulations 1997—authority for expenditure

The committee commented as follows:

Scrutiny principle 23(3)(a) of the committee's terms of reference requires the committee to ensure that an instrument is made in accordance with statute. This principle requires that instruments are made in accordance with their authorising Act as well as any constitutional or other applicable legal requirements.

The instrument adds eight new items to Part 4 of Schedule 1AB to the Financial Framework (Supplementary Powers) Regulations 1997. New table item 142 establishes legislative authority for the Commonwealth government to fund quantum computing research, and new table item 145 establishes legislative authority for the Commonwealth government to fund the provision of Prime Minister's Prizes.

The committee notes that, in Williams No. 1,7 the High Court confirmed that executive authority to spend appropriated monies is not unlimited and therefore generally requires legislative authority. As a result of the subsequent High Court decision in Williams No. 2,8 the committee requires that the ES for all instruments specifying programs for the purposes of section 32B of the Financial Framework

(Supplementary Powers) Act 1997 explicitly state, for each new program, the constitutional authority for the expenditure.

First, the committee notes that the objective of the 'Funding for quantum computing' initiative is to fund 'world leading quantum computing research to develop a silicon

7 Williams v Commonwealth (2012) 248 CLR 156.

8 Williams v Commonwealth (2014) 252 CLR 416.

71

quantum integrated circuit'. The ES for the instrument identifies the constitutional basis for expenditure in relation to this initiative as follows:

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the Commonwealth executive power and the express incidental power (section 61 and section 51(xxxix) of the Constitution).

Therefore, the instrument appears to rely on the executive nationhood power (coupled with the express incidental power) as the relevant head of legislative power to authorise the making of this provision (and therefore the spending of public money under it). In this regard, the instrument states that '[t]his objective also has the effect it would have if it were limited to funding measures that are peculiarly adapted to the government of a nation and cannot otherwise be carried on for the benefit of the nation'.

However it is unclear to the committee how the funding of the initiative may be regarded as an activity that is 'peculiarly adapted to the government of a nation' and as not able to otherwise be 'carried on for the benefit of the nation'.

The committee therefore seeks the minister's advice in relation to this matter.

Second, the committee notes that the objective of the 'Prime Minister’s Prizes' initiative is to 'provide national prizes and awards to individuals and institutions, recognising achievement in science and innovation'.

The ES identifies the constitutional basis for expenditure in relation to this initiative as follows:

Noting that it is not a comprehensive statement of relevant constitutional considerations, the objective of the item references the following powers of the Constitution:

 the social welfare power (section 51(xxiiiA)); and

 the external affairs power (section 51(xxix)).

In relation to the social welfare power and its authorisation of the Commonwealth funding the provision of 'benefits to students', the committee understands that the word 'benefits' in section 51(xxiiiA) 'is used more precisely than as a general reference to (any and every kind of) advantage or good';9 and that, for an initiative to provide 'benefits to students' the benefit should encompass 'material aid provided against the human wants which the student has by reason of being a student'.10

However, it is unclear to the committee how the 'Prime Minister’s Prizes' initiative may be regarded as providing 'benefits to students' within the scope of the social welfare power.

In relation to the external affairs power, the instrument states that the objective of the initiative 'also has the effect it would have if it were limited to providing support:

9 Williams v Commonwealth (No. 2) (2014) 252 CLR 416, 460 [46].

10 Williams v Commonwealth (No. 2) (2014) 252 CLR 416, 460 [47].

72

(a) to provide benefits to students; or (b) by engaging in measures that are peculiarly adapted to the government of a nation and cannot otherwise be carried on for the benefit of the nation'.

However it is unclear to the committee how the funding of the initiative may be regarded as an activity that is 'peculiarly adapted to the government of a nation' and as not able to otherwise be 'carried on for the benefit of the nation'.

The committee therefore seeks the minister's advice in relation to this matter.

Minister's response

The Minister for Finance advised:

Response to the Committee's question about the 'Funding for quantum computing' initiative

CQC2T requires around $100 million in funding over five years to undertake the next phase of their research - specifically, the development of a 10 qubit silicon chip, which is the first step in building a functional silicon-based quantum computer. As these activities are large-scale, capital intensive, and ultimately unproven, they carry a level of risk which is not otherwise commercially viable. Without Commonwealth support, this critical and internationally significant research would either be forced off-shore, or simply would not happen at all.

Quantum computers are expected to provide substantial benefits for issues of national significance such as defence (particularly encryption, cyber security and pattern recognition), medical research, healthcare, economic forecasting, communications infrastructure and other areas. If successful, the development of a silicon-based quantum computer, and associated high-tech ecosystem, has the potential to solve national challenges and generate significant social and economic benefits for the Australian people.

This answer is provided on the understanding that successive governments have been careful to avoid action that might effectively waive legal privilege in legal advice and thereby potentially prejudice the Commonwealth's legal position.

Response to the Committee's question about the 'Prime Minister's Prizes for Science' initiative

Following review of the Explanatory Statement, it became apparent that a transcription error occurred when entering the references for the constitutional heads of power for the following programmes:

• item 145 - Prime Minister's Prizes for Science;

• item 146 - Science and Mathematics Olympiads;

• item 147 - The Asian Physics Olympiad; and

• item 148 - International Science Competitions.

The typographical errors will be resolved in a Replacement Explanatory Statement, which will set out the corrected references to the relevant constitutional heads of power for these items.

73

In relation to the Committee's query about the social welfare power regarding the programme specified at item 145, the Prime Minister's Prizes for Science programme originally contemplated the inclusion of two new prize categories: one for early career innovators, and the other a national-level youth excellence in science award.

The programme was subsequently revised such that it will not include the youth prize as part of the suite of Prime Minister's Prizes for Science. The programme no longer includes any expenditure which would rely on the student benefits power. The programme will only include spending activities supported by the Commonwealth executive power and the express incidental power (section 61 and section 51(xxxix) of the Constitution). However, as the revised programme is within scope of what would be supported by item 145, it is not necessary to further amend the item.

The Prime Minister's Prizes for Science programme provides national-level prizes and awards to recognise the nation's most outstanding scientists and science teachers. The programme has national significance as part of the Commonwealth's science strategy.

This answer is provided on the understanding that successive governments have been careful to avoid action that might effectively waive legal privilege in legal advice and thereby potentially prejudice the Commonwealth's legal position.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee notes that a replacement ES has been registered on the Federal Register of Legislation and received by the committee.

The committee also notes the minister's advice that the revised Prime Minister's Prizes programme does not include any expenditure that would rely on the student benefits power. However, the replacement ES references this constitutional head of power as providing authority for this initiative.

In this regard, the committee's preference is that an ES to a regulation include a clear statement of the relevance and operation of each constitutional head of power relied on to support a program or initiative. Similarly, in the interests of promoting clarity and intelligibility of an instrument to persons interested in or affected by an instrument, the committee notes its preference that only the relevant supporting heads of legislative power are referred to in ESs to these regulations.

74

Instrument Health Insurance (Section 19AB Exemptions)

Guidelines 2016 [F2016L00134]

Purpose Revokes the Health Insurance (Section 19AB Exemptions)

Guidelines 2015 and provides guidance for applying district of workforce shortage determinations

Last day to disallow 1 September 2016

Authorising legislation Health Insurance Act 1973

Department Health

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitors 3 and 5 of 2016

Sub-delegation

The committee commented as follows:

Subsection 13(1) of the instrument provides that the minister may delegate some or all of his or her powers or functions under the instrument, other than the delegation power, to an 'officer'. Subsection 13(2) provides that 'officer' has the same meaning as in subsection 131(4) of the Health Insurance Act 1973, which defines this as an officer of the Department of Health; a person performing the duties of an office in the Department of Health; the Chief Executive of Medicare; or an Australian Parliamentary Service employee within the Department of Human Services.

The committee's expectations in relation to sub-delegation accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, a limit should be set on either the sorts of powers that might be delegated or on the categories of people to whom powers might be delegated; and delegates should be confined to the holders of nominated offices or to members of the senior executive service.

In this respect, the ES for the instrument provides no justification for the broad delegation of the minister's powers under the instrument to an 'officer'.

The committee requests the advice of the minister in relation to this matter.

Minister's first response

The Minister for Health advised:

I note and understand the committee's expectations in relation to sub-delegation and that they should accord with the Senate Standing Committee for the Scrutiny of Bills' approach of ensuring that delegations are not provided to a relatively large class of persons, with little or no specificity as to their qualifications or attributes.

75

I confirm that I have limited the powers delegated and the categories of people to whom these powers are delegated. For consistency my Department has replicated the delegations as provided in the Health Insurance Act 1973 for the administration of s19AB when making the 2016 Guidelines. My Department will consider removing these provisions when the Guidelines are next remade.

Committee's first response

The committee thanks the minister for her response.

The committee notes the minister's advice that she has 'limited the powers delegated and the categories of people to whom these powers are delegated'; and undertaking to consider the removal of the sub-delegation provisions from the Guidelines when they are next remade.

However, the committee's preference for specific limits to be set on the delegations generally envisages that the necessary and intended limits on a delegation are defined on the face of legislation, rather than in administrative or policy guidelines or practices (as the committee assumes the minister's reference to limiting the delegation refers).

Similarly, the committee regards an undertaking to merely consider the removal of the provisions to properly limit the delegation to a necessary class of persons or officers as falling short of a specific limit on the delegation provided for on the face of the legislation.

The committee requests the advice of the minister in relation to this matter.

Minister's second response

The Minister for Health and Aged Care advised:

I note and understand the committee's position that the delegation powers in the Guidelines should be limited to accord with the Senate Committee for the Scrutiny of Bills' approach of ensuring delegations are not provided to a relatively large class of persons, with little or no specificity as to their qualification or attributes.

I confirm that my Department is amending the Guidelines and will remove the delegation provisions as part of this process. It is expected that the amended Guidelines will be completed and signed into effect before 1 March 2017.

Committee's second response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee notes the minister's undertaking that the guidelines will be amended to remove the delegation provisions.

76

Instrument Health Legislation Amendment (eHealth-Governance Restructure Day) Proclamation 2016 [F2016L00732]

Purpose Specifies 1 July 2016 as 'governance restructure day', the day

on which changes to the governance of the My Health Record system take effect

Last day to disallow 21 November 2016

Authorising legislation Health Legislation Amendment (eHealth) Act 2015

Department Health

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

No description of consultation

The committee commented as follows:

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriat e consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the proclamation provides no information regarding consultation.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

No statement of compatibility

The committee commented as follows:

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the maker of a disallowable instrument to have prepared a statement of compatibility in relation to the instrument. The statement of compatibility must include an assessment of whether the instrument is compatible with human rights, and must be included in the ES for the instrument.

With reference to this requirement, the committee notes that the ES for this proclamation does not include a statement of compatibility.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Human Rights (Parliamentary Scrutiny) Act 2011.

77

Minister's response

The Minister for Health and Aged Care advised:

As requested, the Explanatory Statement for this instrument has been updated and registered on the Federal Register of Legislation to include information regarding appropriate consultation and to include a Statement of Compatibility with Human Rights.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee notes that a replacement ES for this instrument has been registered on the Federal Register of Legislation, and that the replacement ES includes a description of consultation and a statement of compatibility that meet the committee's expectations.

Instrument Marine Order 12 (Construction - subdivision and stability, machinery and electrical installations) 2016 [F2016L01049]

Marine Order 21 (Safety and emergency arrangements) 2016 [F2016L01076]

Marine Order 27 (Safety of navigation and radio equipment) 2016 [F2016L01077]

Purpose These orders prescribe standards for the structure, subdivision, stability, machinery and electrical installations for vessels; and safety measures, including emergency procedures and radio equipment; and danger, urgency and distress signals

Last day to disallow 21 November 2016

Authorising legislation Navigation Act 2012

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Incorporation of documents

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the

78

legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above the committee notes that with respect to these marine orders:

 Marine Order 12 (Construction - subdivision and stability, machinery and

electrical installations) 2016 [F2016L01049], section 1.4 incorporates AS 1735.1:2003; and paragraphs 22(b)(i)-(iii) incorporate ISO 5488:2015; ISO 7061:2015 and ISO 7364:2016;

 Marine Order 21 (Safety and emergency arrangements) 2016 [F2016L01076], subsections 4(2) and 25(4), and section 4 of Schedule 2 incorporates AS/NZS 60079.29.1:2008; and subsection 25(4) incorporates AS/NZS60079.29.2:2008 and IEC 60079-29-2 Ed 1.0; and

 Marine Order 27 (Safety of navigation and radio equipment) 2016 [F2016L01077], subsection 19(1) incorporates IEC 60533:2015 and subsection 26(4) incorporates IEC 60945:2002.

However, neither the text of the orders nor the ESs expressly state the manner in which the documents are incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Access to incorporated documents

The committee commented as follows:

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee on Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that various sections of the marine orders incorporate a number of documents by reference. While the ESs to the orders provide a description of the documents and information about how they can be obtained, a number of the documents are only available to purchase. The ESs do not contain

information as to whether the documents are otherwise freely accessible, other

79

than to state that 'persons having difficulty obtaining a copy of any standard mentioned in the Order[s] can contact AMSA.'

The committee requests the advice of the minister in relation to this matter.

Minister's response

The acting Minister for Infrastructure and Transport advised:

The Australian Maritime Safety Authority (AMSA) has advised that when these Marine Orders are amended, they will clearly state the policy intention - which was to incorporate the identified standards as in force at the time of the Marine Order's commencement.

The Committee further raised concerns about the adequacy of the Explanatory Statements regarding free access to the incorporated documents. Each of the Marine Orders includes a note that directs users to an AMSA website page giving access [to] information for documents incorporated by reference in the Marine Orders. I am informed that the Marine Order webpage provides information about where industry standards can be sourced for free and, for other incorporated documents, how to navigate the web to download them for free. The explanatory statements summarised the access information set out in the Marine Order webpage.

While the possible sources of free access to hard copies of industry standards, in particular Australian libraries, are set out in the Marine Order webpage link, AMSA has advised that in future it will make it clearer in its Explanatory Statements how to access any free sources of standards. A free access option for a stakeholder or member of the public is to contact AMSA for assistance with accessing material that is not copyright protected.

AMSA is currently considering imposing a service fee for requests for access to any standard incorporated by reference into a Marine Order that is copyright protected. This service fee will cover the copyright licence fees and royalties for which AMSA becomes liable as a result of downloading and providing public access to copyright protected material. If it is determined that a fee will be charged, AMSA will make this clear in Explanatory Statements for Marine Orders that incorporate industry standards that are subject to copyright.

It should be noted there are certain International Maritime Organization (IMO) published industry manuals and codes for which carriage by vessels is mandated for operational safety in Marine Order 27. Publications in book format are available for purchase through the IMO and electronic versions can be downloaded at no cost. In future, AMSA will clarify this in the Explanatory Statements for the relevant Marine Orders.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee also thanks the minister for her advice that future ESs to instruments will state how documents are incorporated and how they can be freely accessed.

80

The committee notes the minister's advice that AMSA is considering the introduction of a service fee for access to standards protected by copyright and reiterates its concerns that where incorporated documents are not publicly and freely available, persons interested in or affected by the law may have inadequate access to its terms. In addition to access for industry members, the committee is interested in the broader issue of access for other parties who might be affected by, or are otherwise interested in, the law.

Instrument Migration Amendment (Priority Consideration of Certain Visa Applications) Regulation 2016 [F2016L00295]

Purpose Amends the Migration Regulations 1994 to create a priority

consideration of visa application service for specified kinds of visas and specified passport holders

Last day to disallow 11 October 2016

Authorising legislation Migration Act 1958

Department Immigration and Border Protection

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Unclear basis for determining fees

The committee commented as follows:

The regulation creates a priority consideration of visa application service for certain visas and passport holders. Subsection 2.21N(1) of the regulation sets the fee for a request for priority consideration of a visa application at $1000. However, the ES does not explicitly state the basis on which the fee has been calculated.

The committee's usual expectation in cases where an instrument of delegated legislation carries financial implications via the imposition of or change to a charge, fee, levy, scale or rate of costs or payment is that the relevant ES makes clear the specific basis on which an individual imposition or change has been calculated.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Immigration and Border Protection advised:

The fee is only charged to applicants who choose the priority service, as opposed to the VAC, which is payable by all applicants. In order for the Department to successfully deliver the enhanced priority service, it is critical for the priority service to be adequately resourced, without any reduction in the level of resources given to ordinary visa processing. In

81

practice, therefore, processing times for Visitor visas more generally will not be affected by this service. Further, the applicant may avoid paying the priority service fee by using ordinary processing arrangements.

In calculating the amount of the priority service fee, the Department had regard to a number of factors, including the Department's resourcing costs to implement the priority service over the forward estimates. This included Information Communications Technology (ICT) investment and supporting costs required to implement the priority service across multiple locations in China.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee accepts the minister's advice that the priority service fee was calculated with regard to resourcing costs to implement the priority service over the forward estimates, including costs required to implement the priority service across multiple locations in China.

The committee notes the minister's advice that in calculating the amount of the priority service fee, the Department of Immigration and Border Protection has considered fees for similar products imposed by other nations. However, the committee's general practice in its scrutiny of instruments of delegation legislation that impose or change fees, is that the existence of similar fees in other national contexts is not considered to be, of itself, a sufficient explanation of the specific basis on which an individual fee has been calculated for the purposes of a particular instrument.

82

Instrument Migration Legislation Amendment (2016 Measures No. 1) Regulation 2016 [F2016L00523]

Purpose Amends the Migration Regulations 1994 relating to

Subclass 457 visas, provision of evidence of English language proficiency, special consideration for granting Subclass 202 visas and the international student visa framework

Last day to disallow 7 November 2016

Authorising legislation Migration Act 1958

Department Immigration and Border Protection

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Unclear basis for determining fees

The committee commented as follows:

Item 23 repeals and substitutes item 1222 (Student (Temporary)(Class TU) in Part 2 of Schedule 1 of the Migration Regulations 1994 (the regulations). Subitem 122(2) sets out visa application charges as follows: $550 base application charge; $410 additional applicant charge for any other applicant who is at least 18; and $135 additional applicant charge for any other applicant who is less than 18.

While the committee notes that subparagraph 504(1)(a)(i) of the Migration Act 1958 (the Act) provides that regulations may make provision for the charging and recovery of fees in respect of any matter under the Act or the regulations, neither the instrument nor the ES states the basis on which the relevant charges are calculated. The committee's usual expectation in cases where an instrument of delegated legislation carries financial implications via the imposition of or change to a charge, fee, levy, scale or rate of costs or payment is that the relevant ES makes clear the specific basis on which an individual imposition or change has been calculated.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Immigration and Border Protection advised:

The current VAC amounts were introduced on 1 July 2015 by the Migration Legislation Amendment (2015 Measures No. 2) Regulation 2015 (2015 Amendment Regulation) and have not increased since that time. The VAC amounts in the 2015 Amendment Regulation gave effect to the Government's decision as part of the 2015-16 Budget to adjust the price of a number of VAC amounts, including relevantly, Student visas, which were increased by an inflation rate of 2.3 per cent. These changes were made in lieu of indexation of all VACs for 2015.

83

Prior to the Student VAC amount increase in 1 July 2015, the VAC prices decreased by 5 per cent in 2012 and had not changed since. This was in contrast to other visas, with base charges increased up to 35 per cent from 2010 to 2014 as a result of the Visa Pricing Transformation and subsequent Budget and Mid-Year Economic and Fiscal Outlook decisions. Further analysis had shown that Student VACs comprise 0.3-0.4 percent of the total cost and benefit of staying in Australia, and thus a small change in price was expected to have negligible impact on international students.

The amount of the increase does not exceed the applicable charge limit set out in the Migration (Visa Application) Charge Act 1997, and the Regulation does not change the VAC amount as set in the 2015 Amendment Regulation.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

Instrument Migration Regulations 1994 - Working Holiday Visa -

Definitions of Specified Work and Regional Australia 2016/041 [F2016L00757]

Migration Regulations 1994 - Specification of Designated Areas - IMMI 16/044 [F2016L00777]

Migration Regulations 1994 - Specification of Regional Certifying Bodies and Regional Postcodes - IMMI 16/045 [F2016L00778]

Migration Regulations 1994 - Specification of

Arrangements for Resident Return Visa Applications 2016/042 - IMMI 16/042 [F2016L00785]

Migration Regulations 1994 - Specification of

Arrangements for Other Visas 2016/043 - IMMI 16/043 [F2016L00786]

Migration Regulations 1994 - Specification of Visa Subclass for the Purposes of the Health Requirement - IMMI 16/067 [F2016L01126]

Purpose These regulations specify various requirements relevant to the transition of Norfolk Island permit holders and foreign national residents to the Australian visa regime

Last day to disallow Exempt

Authorising legislation Migration Regulations 1994

Department Immigration and Border Protection

Scrutiny principle Standing Order 23(3)(a)

84

Previously reported in Delegated legislation monitor 6 of 2016

Classification as a disallowable instrument

The committee commented as follows:

These regulations specify various requirements relevant to the transition of Norfolk Island permit holders and foreign national residents to the Australian visa regime.

The committee understands these instruments to be exempt from disallowance because they are made under certain schedules or parts of the Migration Regulations 1994 (the Migration Regulations) that are specified in item 20 of the table in section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 [F2015L01475] (the exemption regulation). The relevant schedules or parts under which the regulations are made are as follows:

 Migration Regulations 1994 - Working Holiday Visa - Definitions of Specified Work and Regional Australia 2016/041 [F2016L00757]: Schedule 1 of the Migration Regulations;

 Migration Regulations 1994 - Specification of Designated Areas - IMMI 16/044 [F2016L00777]: Part 1 of the Migration Regulations;

 Migration Regulations 1994 - Specification of Regional Certifying Bodies and Regional Postcodes - IMMI 16/045 [F2016L00778]: Part 5 of the Migration Regulations;

 Migration Regulations 1994 - Specification of Arrangements for Resident

Return Visa Applications 2016/042 - IMMI 16/042 [F2016L00785] and Migration Regulations 1994 - Specification of Arrangements for Other Visas 2016/043 - IMMI 16/043 [F2016L00786]: Part 2 of the Migration Regulations; and

 Migration Regulations 1994 - Specification of Visa Subclass for the Purposes

of the Health Requirement - IMMI 16/067 [F2016L01126]: Schedule 4 of the Migration Regulations.

However, notwithstanding the apparent exemption of the regulations from disallowance, the ESs for the regulations state that they are disallowable under section 42 of the Legislation Act 2003.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Immigration and Border Protection advised:

The Explanatory Statements for Instruments F2016L00757, F2016L00777, F2016L00778, F2016L00786 and F2016L01126 all contain the same error. In each case, the Explanatory Statement provides that the instrument is subject to disallowance. However, the empowering provision under which each of these instruments are made are prescribed in table 20 of section 10 of the Exemption Regulation, the effect of which is to make these

85

instruments exempt from disallowance. The relevant paragraph in each Explanatory Statement should be read as an error.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

Instrument Minister's Road User Charge Determination 2016 (No. 1) [F2016L00556]

Purpose Specifies the rate of the Road User Charge

Last day to disallow 8 November 2016

Authorising legislation Fuel Tax Act 2006

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

No statement of compatibility

The committee commented as follows:

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the maker of a disallowable instrument to have prepared a statement of compatibility in relation to the instrument. The statement of compatibility must include an assessment of whether the legislative instrument is compatible with human rights, and must be included in the ES for the legislative instrument.

With reference to this requirement, the committee notes that the ES for this determination does not include a statement of compatibility.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Human Rights (Parliamentary Scrutiny) Act 2011.

Minister's response

The acting Minister for Infrastructure and Transport advised:

I can advise that a statement of compatibility with Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 was omitted in error. The Explanatory Statement for this instrument will be updated to include a statement of compatibility as soon as possible.

86

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee notes the minister's undertaking to update the ES to include a statement of compatibility with human rights.

Instrument National Disability Insurance Scheme (Becoming a

Participant) Rules 2016 [F2016L00544]

Purpose Sets eligibility requirements relating to age, residence and

disability or early intervention to become a participant in the National Disability Insurance Scheme

Last day to disallow 8 November 2016

Authorising legislation National Disability Insurance Scheme Act 2013

Department Social Services

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Incorporation of documents11

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that section 8.4 of the National Disabilit y Insurance Scheme (Becoming a Participant) Rules 2016 [F2016L00544]

(the becoming a participant rules) contains the following definition:

2016 NDIS early transition areas means the areas specified in Schedules 1 and 2 of the Local Government Regulation 2012 (Qld) as:

(a) Townsville City Council; (b) Charters Towers Regional Council;

11 The committee notes that the issue raised here also applies to National Disability Insurance Scheme (Timeframes for Decision Making) Amendment Rules 2016 [F2016L00545] which incorporates Schedules 1 and 2 of the Local Government Regulation 2012 (Qld) at item 2.

87

(c) Palm Island Aboriginal Shire Council.

The committee further notes that subsection 209(2) of the National Disability Insurance Scheme Act 2013 provides that, despite section 14 of the Legislation Act 2003, the National Disability Insurance Scheme Rules ‘may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time’. However, neither the text of the becoming a participant rules nor the ES expressly states the manner in which the relevant parts of schedules 1 and 2 of Local Government Regulation 2012 (Qld) are incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which State regulations are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Consultation

The committee commented as follows:

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriat e consultation, as is reasonably practicable, has been undertaken in relation

to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the becoming a participant rules states:

Consultation

The Commonwealth and each host jurisdiction have agreed to the making of the Becoming a Participant Rules.

While the committee does not interpret paragraphs 15J(2)(d) and (e) of the Legislation Act 2003 as requiring a highly detailed description of consultation undertaken, it considers that an overly bare or general description is insufficient to satisfy the requirements of the Legislation Act 2003. In the committee's view, the general statement that the Commonwealth and host jurisdictions have agreed to the making of the rules is not sufficient to meet the requirement that the ES describe the nature of any consultation undertaken.

The committee's expectations in this regard are set out in the guideline on consultation contained in Appendix 2.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

88

Minister's response

The Minister for Social Services advised:

In regards to the National Disability Insurance Scheme (Becoming a Participant) Rules 2016 [F2016L00544], I note your concern that neither the text of the rules nor the Explanatory Statement (ES) expressly state the manner in which the relevant parts of Schedules 1 and 2 of Local Government Regulation 2012 (Qld) are incorporated. I also note concerns that the ES does not adequately describe the nature of consultation undertaken.

As to the first issue raised, our intention was to incorporate the regulation as in force at the time the rules were made. Having regard to section 14 of the Legislation Act 2003, I will submit a revised ES, following consultation with Queensland. I note this also applies to the National Disability Insurance Scheme (timeframes for Decision Making) Amendment Rules 2016…Regarding consultation, I will more fully describe the nature of consultation undertaken, in accordance with Appendix 2; Guideline on Consultation, and submit an amended ES which reflects this intention.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee notes the minister's undertaking that the ES will be revised to expressly state the manner of incorporation and include a description of the nature of consultation undertaken.

Instrument National Disability Insurance Scheme (Facilitating the Preparation of Participants' Plans—Queensland) Rules 2016 [F2016L00342]

Purpose Outlines the phasing schedule for the preparation of

participants’ plans in the Queensland early transition sites of Charters Towers, Townsville and Palm Island

Last day to disallow 13 October 2016

Authorising legislation National Disability Insurance Scheme Act 2013

Department Social Services

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Incorporation of extrinsic material

The committee commented as follows:

89

Section 14 of the Legislation Act 2003 allows for the incorporation of extrinsic material into instruments. Commonwealth legislative material may be incorporated as in force from time to time or at a particular date. Non-legislative material may only be incorporated as in force at the commencement of the instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that section 3.4 of the instrument contains the following definitions:

Townsville means the area specified as such under Schedule 1 of the Local Government Regulation 2012 (Qld).

Charters Towers means the area specified as such under Schedule 1 of the Local Government Regulation 2012 (Qld).

2016 NDIS early transition area has the same meaning as in the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.

Palm Island means the area specified as such under Schedule 1 of the Local Government Regulation 2012 (Qld).

However, neither

the text of the instrument nor the ES expressly states the manner in which the Local Government Regulation 2012 (Qld) or the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 are incorporated.

The committee acknowledges that section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) has the effect that references to external documents which are Commonwealth disallowable instruments (such as the National Disability Insurance Scheme (Becoming a Participant) Rules 2013) can be taken to be references to versions of those instruments as in force from

time to time. However, this construction does not apply to the Local Government Regulation 2012 (Qld).

The committee further notes that subsection 209(2) of the National Disability Insurance Scheme Act 2013 provides that, despite section 14 of the

Legislation Act 2003, the National Disability Insurance Scheme Rules ‘may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time’.

The committee's usual expectation where instruments incorporate extrinsic material by reference is that the manner of incorporation is clearly specified in the instruments and, ideally, in the ESs. The committee regards this as a best-practice approach that enables anticipated users or persons affected by any such instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

90

Minister's response

The Minister for Social Services advised:

…our intention was to incorporate the regulation as in force at the time the rules were made. Having regard to section 14 of the Legislation Act 2003, I will submit a revised ES, following consultation with Queensland.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee notes the minister's undertaking to amend the ES to state the manner in which the document is incorporated.

Instrument National Disability Insurance Scheme (Prescribed

Programs—New South Wales) Rules 2016 [F2016L00792]

Purpose Provides for people in New South Wales currently receiving

certain disability services to be supported as participants in the National Disability Insurance Scheme, irrespective of whether they meet the residence requirements

Last day to disallow 21 November 2016

Authorising legislation National Disability Insurance Scheme Act 2013

Department Social Services

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

No statement of compatibility

The committee commented as follows:

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the maker of a disallowable instrument to have prepared a statement of compatibility in relation to the instrument. The statement of compatibility must include an assessment of whether the instrument is compatible with human rights, and must be included in the ES for the instrument.

With reference to this requirement, the committee notes that the ES for this instrument does not include a statement of compatibility.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Human Rights (Parliamentary Scrutiny) Act 2011.

91

Minister's response

The Minister for Social Services advised:

In regard to the National Disability Insurance Scheme (Prescribed Programs - New South Wales) Rules 2016 [F2016L00792], the failure to incorporate a Statement of Compatibility with Human Rights was an oversight and I thank you for bringing this to my attention. I will submit a revised ES incorporating a statement of compatibility, in accordance with section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The

committee notes the minister's undertaking that the ES will be revised to incorporate a statement of compatibility with human rights.

Instrument National Health Determination under paragraph 98C(1)(b) Amendment 2016 (No. 4) (PB 44 of 2016) [F2016L00855]

Purpose Rectifies a typographical error in PB 119 of 2008

Last day to disallow 21 November 2016

Authorising legislation National Health Act 1953

Department Health

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

No description of consultation

The committee commented as follows:

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the determination provides no information regarding consultation.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

92

Minister's response

The Minister for Health and Aged Care advised:

In regard to your request for advice on why there was no description of consultation in the instrument, consultation was not necessary because the sole purpose of the amendment was to rectify a typographical error. The Explanatory Statement for this instrument will be updated and registered on the Federal Register of Legislation.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee notes that a replacement ES has been registered on the Federal Register of Legislation, and that the replacement ES includes a description of consultation that meets the committee's expectations.

Instrument National Measurement Guidelines 2016 [F2016L00538]

Purpose Govern the way in which Australian legal units of measurement may be combined to produce an Australian legal unit of measurement, and with prefixes to produce Australian legal units of measurement

Last day to disallow 8 November 2016

Authorising legislation National Measurement Act 1960

Department Industry, Innovation and Science

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

No statement of compatibility

The committee commented as follows:

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires a rulemaker to prepare a statement of compatibility in relation to an instrument to which section 42 (disallowance) of the Legislation Act 2003 applies. The statement of compatibility must include an assessment of whether the legislative instrument is compatible with human rights, and must be included in the ES for the legislative instrument.

With reference to these requirements, the committee notes that the ES for this instrument does not include a statement of compatibility.

93

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Human Rights (Parliamentary Scrutiny) Act 2011.

Departmental response

The Department of Industry, Innovation and Science advised:

Please see attached the Amended Explanatory Statement for the Guidelines including a Human Rights Compatibility Statement (both in a marked up and a clean version for your ease of reference).

I advise the Committee that the Amended Explanatory Statement has been lodged and registered with the Federal Register of Legislation and will be tabled on the earliest convenient sitting date.

The Amended Explanatory Statement can be accessed at

https://www.legislation.gov.au/Details/F2016L00538.

Committee's response

The committee thanks the department for the response and has concluded its examination of the instrument.

The committee notes that a replacement ES has been registered on the Federal Register of Legislation and received by the committee. The replacement ES includes a statement of compatibility in accordance with the Human Rights (Parliamentary Scrutiny) Act 2011.

Instrument Norfolk Island Customs Ordinance 2016 [F2016L00736]

Purpose Applies the Customs Act 1901, the Customs Regulation 2015

and the Customs (International Obligations) Regulation 2015 in Norfolk Island, as modified by the Norfolk Island Customs Ordinance 2016

Last day to disallow 21 November 2016

Authorising legislation Norfolk Island Act 1979

Department Infrastructure and Regional Development

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Sub-delegation

The committee commented as follows:

Section 9 of the Norfolk Island Customs Ordinance 2016 [F2016L00736] (the ordinance) provides that the Comptroller-General of Customs may delegate any

94

of their functions or powers under an applied customs law (other than section 179 of the Customs Act 1901 (NI)) to the secretary of the relevant department or to 'another officer of Customs'. Subsection 9(3) of the ordinance further provides that the secretary may sub-delegate powers delegated by the Comptroller-General of Customs to 'another officer of Customs'.

The ordinance defines an 'officer of Customs' as an officer within the meaning of the Customs Act 1901, which provides a very broad definition of the term.12

The committee's expectations in relation to sub-delegation accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, a limit should be set on either the sorts of powers that might be delegated or on the categories

of people to whom powers might be delegated; and delegates should be confined to the holders of nominated offices or to members of the senior executive service.

In this respect, the ES for the ordinance provides no justification for the broad delegation and sub-delegation of the Comptroller-General of Customs' powers under the ordinance to an 'officer of Customs'.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Local Government and Territories advised:

From 1 July 2016, the Department of Immigration and Border Protection (DIBP) administers customs arrangements for Norfolk Island, replacing the previous arrangements administered by the former Administration of Norfolk Island under the Customs Act 1913 (NI) and Customs Regulations 1986. As the agency responsible for administration of customs functions, DIBP modified the application of the Customs Act 1901 (Cth) to reflect the unique circumstances of Norfolk Island.

I note the Senate Standing Committee on Regulations and Ordinances' expectations in relation to the delegation and sub-delegation of the Comptroller-General of Customs' powers under the Ordinance to 'an officer of Customs'.

In response to the matters raised by the Committee, DIBP has advised the approach to delegations in the Customs Act 1901 (NI) mirrors the approach taken to delegations in the Customs Act 1901 (Cth). The large number and variety of powers in the Customs Act 1901 (NI) means their delegation to only nominated officers or members of the senior executive service (in accordance with the Committee's expectations) would not be practical from an operational perspective.

The operational considerations include the small population and remote location of Norfolk Island. A small number of DIBP staff are posted to

12 See Customs Act 1901, s 4.

95

Norfolk Island to operate the customs service for the territory and these staff are not senior executive staff and may not be holders of nominated offices. This practical constraint on the operational environment requires a sub-delegation to a broad category of officers.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

Instrument PAYG Withholding Variation: Variation of amount to be withheld from Indigenous artists when an ABN is not provided [F2016L00358]

Purpose Provides that no tax is to be withheld from payments made to

indigenous artists for artistic works where the artist lives in a remote area and does not quote an Australian Business Number

Last day to disallow 13 October 2016

Authorising legislation Taxation Administration Act 1953

Department Treasury

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Drafting

The committee commented as follows:

The instrument repeals and replaces a previous PAYG Withholding Variation to continue to provide that no tax is to be withheld from payments made to indigenous artists for artistic works where the artist lives or works in zone A (ordinary or special) and does not quote an Australian Business Number.

However, neither the instrument, nor the ES define zone A (ordinary or special). The committee notes the importance of the definition of zone A (ordinary or special) to understanding the instrument and is concerned about the ability of persons affected by the instrument to understand its operation.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Revenue and Financial Services advised:

The comments of the Committee have been noted and accepted by the Australian Taxation Office (ATO). The ATO has advised me that the Explanatory Statement to the legislative instrument will be revised to include a legislative reference that will provide the required explanation of

96

the terms Zone A and Special Zone A as used in the instrument. The revision should be completed in the week ending 16 October 2016.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The committee notes the minister's undertaking that the ATO will remake the ES to address the committee's concerns by including an explanation of the terms Zone A and Special Zone A used in the instrument.

Instrument Private Ancillary Fund and Public Ancillary Fund

Amendment Guidelines 2016 [F2016L00651]

Purpose Amends the Private Ancillary Fund Guidelines 2009 and the

Public Ancillary Fund Guidelines 2011

Last day to disallow 21 November 2016

Authorising legislation Taxation Administration Act 1953

Department Treasury

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

No statement of compatibility

The committee commented as follows:

Section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011 requires the maker of a disallowable instrument to have prepared a statement of compatibility in relation to the instrument. The statement of compatibility must include an assessment of whether the legislative instrument is compatible with human rights, and must be included in the ES for the legislative instrument.

With reference to this requirement, the committee notes that the ES for this instrument does not include a statement of compatibility.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Human Rights (Parliamentary Scrutiny) Act 2011.

Minister's response

The Minister for Revenue and Financial Services advised:

I regret the omission of the statement, which was unintended.

97

Please see enclosed a proposed amended Explanatory Statement that now includes a statement of compatibility with human rights.

The proposed amended Explanatory Statement will be registered with the Federal Register of Legislation as soon as practicable.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

Instrument Private Health Insurance (Prostheses) Rules 2016 (No. 1) [F2016L00268]

Private Health Insurance (Prostheses) Rules 2016 (No. 2) [F2016L00381]

Purpose These instruments revoke and replace previous rules, add new prostheses to the schedule and remove billing codes

Last day to disallow 10 October 2016; 13 October 2016

Authorising legislation Private Health Insurance Act 2007

Department Health

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Drafting

The committee commented as follows:

The ESs to the instruments state that the purpose of the instruments is:

…to list the kinds of prostheses for which a benefit must be paid where the prosthesis is provided in the conditions and circumstances specified, and set out the minimum and, where applicable, maximum benefit payable.

However, the committee notes that Part A - Prostheses list to the first instrument appears not to list a minimum benefit in a number of cases. For example, Billing Code JJ687 on page 497 appears not to list a minimum benefit, but lists $515 as the maximum benefit; and Billing Code JJ688 on page 515 appears not to list a minimum benefit, but lists $1800 as the maximum benefit.

Similarly, in relation to Part A - Prostheses list to the second instrument, Billing Code JJ687 on page 499 appears not to list a minimum benefit, but lists $515 as the maximum benefit; and Billing Code JJ688 on page 619 appears not to list a minimum benefit, but lists $1800 as the maximum benefit.

98

It is unclear to the committee whether figures appearing in this way throughout the instruments are in fact intended to be the minimum benefits payable.

The committee requests the advice of the minister in relation to this matter

Incorporation of extrinsic material

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows for the incorporation of extrinsic material into instruments. Commonwealth legislative material may be incorporated as in force from time to time or at a particular date. Non-legislative material may only be incorporated as in force at the commencement of the instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that section 4 of each instrument contains the following definitions:

certified overnight Type C procedure has the same meaning as in rule 3 of the Private Health Insurance (Benefit Requirements) Rules.

certified Type C procedure has the same meaning as in rule 3 of the Private Health Insurance (Benefit Requirements) Rules.

However, neither the text of the instruments nor the ESs expressly state the manner in which the Private Health Insurance (Benefit Requirements) Rules are incorporated.

The committee acknowledges that section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) has the effect that references to external documents which are Commonwealth disallowable instruments (such as the Private Health Insurance (Benefit Requirements) Rules) can be taken to be references to versions of those instruments as in force from time to time.

However, the committee's usual expectation where an instrument incorporates extrinsic material by reference is that the manner of incorporation is clearly specified in the instrument and, ideally, in the ES. The committee regards this as a best-practice approach that enables anticipated users or persons affected by any such instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee therefore considers that, notwithstanding the operation of section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003), and in the interests of promoting clarity and intelligibility of an instrument to anticipated users, instruments (and, ideally, their accompanying ESs) should clearly state the manner of incorporation of extrinsic material.

The committee draws this matter to the minister's attention.

Minister's response

The Minister for Health and Aged Care advised:

I note the Committee's concerns in relation to minimum private health insurance benefits payable for prostheses listed in the Private Health Insurance (Prostheses) Rules 2016 (No. 1) [F2016L00268] and the Private Health Insurance (Prostheses) Rules 2016 (No. 2) [F2016L00381]. The

99

Committee identified that certain prostheses appeared to be listed without a minimum benefit but with a maximum benefit only.

It would seem that there was a formatting error in this very long document. Where only one benefit appears for a particular device, I can confirm that it is intended that this will be the minimum benefit payable for the device.

I also note the Committee's comments in relation to its expectations where an instrument incorporates extrinsic material by reference.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instruments.

Instrument Public Governance, Performance and Accountability Amendment (CSC) Rule 2016 [F2016L00504]

Purpose Makes the Commonwealth Superannuation Corporation (CSC) subject to certain arrangements that applied to ComSuper when it performed the administrative services function in relation to the superannuation schemes administered by CSC

Last day to disallow 15 sitting days after tabling (18 April 2016)

Authorising legislation Public Governance, Performance and Accountability Act 2013

Department Finance

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Sub-delegation

The committee commented as follows:

The instrument inserts new subsection 28A(1) into the Public Governance, Performance and Accountability Rule 2014 (PGPA Rule) which modifies the operation of subsection 107(1) and section 110 of the Public Governance, Performance and Accountability Act 2013 (PGPA Act) to enable the Finance Minister and the Commonwealth Superannuation Corporation (CSC) Board to sub-delegate certain powers, functions and duties concerning the recovery of debts due to the Commonwealth under the PGPA Act and the PGPA Rule. The ES to the instrument states:

This is necessary given CSC’s function to provide administrative services in relation to the superannuation schemes administered by the organisation. The relevant powers, functions or duties were performed by ComSuper when it previously undertook this administrative services function. Debts

100

owed to CSC in its own right are not affected by the Amendment Rule and will be managed in the same manner as has been CSC’s practice to date.

The committee's expectations in relation to sub-delegation accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to legislation that allows delegations to a relatively large class of persons, with little or no specificity as to their qualifications or attributes. Generally, a limit should be set on either the sorts of powers that might be delegated or on the categories of people to whom powers might be delegated; and delegates should be confined to the holders of nominated offices or to members of the senior executive service.

In this respect, the committee notes that the instrument does not limit the category of people to whom the minister's and CSC Board's powers under the instrument might be sub-delegated.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Finance advised:

The sub-delegation powers in the CSC Rule are consistent with the sub-delegation powers of accountable authorities of non-corporate Commonwealth entities, set out in sub-section 110(1) of the Public Governance, Performance and Accountability Act 2013 (PGPA Act). This is appropriate as CSC, a corporate Commonwealth entity, now performs functions, usually undertaken by non-corporate Commonwealth entities, on behalf of the Commonwealth. Limiting the CSC Board's sub-delegation powers would undermine the principles of coherence, operational independence and efficiency embodied in the PGPA Act.

In providing for sub-delegations, the PGPA Act reduces the risks associated with sub delegating powers through duties placed on accountable authorities (sections 15-19) and officials (sections 25-29) which facilitate high standards of governance, performance and accountability. In particular, section 16 of the PGPA Act requires accountable authorities to establish and maintain an appropriate system of risk oversight, management and internal control over the entity, which includes sub-delegation arrangements.

The CSC Rule also provides for only a limited delegation of my power under paragraph 63(1)(b) of the PGPA Act and the duty placed on accountable authorities by section 11 of the PGPA Rule. These provisions deal with, in turn, the modification of the terms and conditions on which an amount owing to the Commonwealth is to be paid to the Commonwealth, and the requirement for accountable authorities to pursue recovery of debts.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

101

Instrument Public Lending Right Scheme 1997 (Modification No. 1 of 2016) [F2016L00610]13

Purpose Modifies the Public Lending Right Scheme 1997 to increase the creator rate of payment for 2015-16 from $2.02 to $2.11 and the publisher rate of payment from 50.5 cents to 52.75 cents

Last day to disallow 9 November 2016

Authorising legislation Public Lending Right Act 1985

Department Communications and the Arts

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

No description of consultation

The committee commented as follows:

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriat e consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the instrument provides no information regarding consultation.

The committee requests the advice of the minister in relation to this matter; and requests that the ES be updated in accordance with the requirements of the Legislation Act 2003.

Unclear basis for determining fees

The committee commented as follows:

Items 2 and 3 of the instrument increase the creator of books rate of payment for 2015-16 from $2.02 to $2.11; and the publisher of books rate of payment from 50.5 cents to 52.75 cents. However, the ES does not explain the basis on which the new rates have been calculated or set.

The committee's usual expectation in cases where an instrument of delegated legislation carries financial implications via the imposition of or change to a charge,

13 The committee previously raised the same issues in relation to Public Lending Right Scheme 1997 (Modification No. 1 of 2015) [F2015L00694] (see Delegated legislation monitor 7 and 9 of 2015).

102

fee, levy, scale or rate of costs or payment is that the relevant ES makes clear the basis on which the imposition or change has been calculated.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Communications advised:

The Public Lending Right rates of payment are reviewed annually by my department, taking into consideration the results of library surveys and the available budget. The surveys, also conducted annually, provide the estimated number of books held in public lending libraries. The calculations undertaken by my department showed sufficient funds were available to enable a modest increase in the payment rates for 2015-16. I was satisfied that consultation prior to my decision was not necessary given the changes to the rates of payment are of minor technical nature and do not substantially alter the current arrangements for the Public Lending Right program.

The Public Lending Right Scheme 1997 is scheduled to sunset on 1 October 2016 and I am remaking the Scheme without significant change. Please note the Explanatory Statement of the new Public Lending Right Scheme 2016 will address the issues raised in your correspondence.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee also thanks the minister for his advice that the ES to the remade instrument will address the committee's concerns.

103

Instrument Radiocommunications (Spectrum Access Charges - 2 GHz Band) Determination 2016 [F2016L01021]

Purpose Fixes the spectrum access charges payable by various licensees for the re-issue of specified licences in the 2 GHz band; and specifies the times when those charges are payable

Last day to disallow 21 November 2016

Authorising legislation Radiocommunications Act 1992

Department Communications and the Arts

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Incorporation of documents

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that section 4 of the determination incorpora tes Radiocommunications (Spectrum Access Charges) Direction 2012 (the

direction), which is made under subsection 294(2) of the Radiocommunications Act 1992 (Radiocommunications Act). However, neither the text of the determination nor the ES expressly states the manner in which the direction is incorporated.

The committee further notes that subsection 294(5) of the Radiocommunications Act provides that the direction is a legislative instrument that is not subject to disallowance (an exempt instrument). Subsection 14(3) of the Legislation Act 2003 provides that only disallowable legislative instruments may be incorporated as in force from time to time. The committee therefore understands that the direction may only be incorporated as in force at the commencement of the determination, unless authorising or other legislation alters the operation of section 14.

However, the committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which exempt instruments are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

104

Minister's response

The Minister for Communications advised:

A determination made under subsection 294(1) of the Act must comply with any directions made by the Minister under section 294 (see subsection 294(4) of the Act). It follows that any such determination must comply with any such direction as in force at the time of the commencement of the relevant determination. Accordingly, the Determination has incorporated the Pricing Direction as in force at the time of the commencement of the Determination.

The ACMA agrees with the Committee, nonetheless, that it would have been beneficial if the Determination or the Explanatory Statement had mentioned that the Pricing Direction was incorporated as in force at the time of the commencement of the Determination. The ACMA proposes to amend the Explanatory Statement to clarify the matter in the near future.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

The committee also thanks the minister for his advice that ACMA proposes to amend the ES to state how the direction is incorporated.

Instrument Safety, Rehabilitation and Compensation (Rate of Interest Payable - s26(3)) Notice 2016 [F2016L00464]

Purpose Specifies the rate of interest payable on lump sum payments to claimants for injuries which result in permanent impairment (under the Safety, Rehabilitation and Compensation Act 1988) which are not paid within thirty days after assessment

Last day to disallow 15 sitting days after tabling (18 April 2016)

Authorising legislation Safety, Rehabilitation and Compensation Act 1988

Department Employment

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Drafting

The committee commented as follows:

The Safety, Rehabilitation and Compensation Act 1988 (the Act) establishes the Commonwealth workers’ compensation and rehabilitation scheme for employees of the Commonwealth, Commonwealth authorities and licensed corporations. This

105

instrument sets the rate of interest payable in respect of permanent impairment payments to a claimant under section 24 or 25 of the Act which are not made within thirty days after the date of assessment of the amount of permanent impairment.

Section 4 of the instrument states:

The rate of interest payable under subsection 26(3) of the Act is specified to be the weighted average yield of 90 day bank-accepted bills, as published by the Reserve Bank of Australia, settled immediately prior to the last day of the thirty day settlement period.

However, it is unclear to the committee which specific published material or documents this section refers to, the manner in which this published material is incorporated and where it can be accessed. Neither the text of the instrument nor the ES provides any information in relation to these matters.

The committee notes the importance of the published material as a point of access to understanding the regulation and is concerned about the ability of anticipated users or persons affected by the instrument to understand its operation.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Employment advised:

The weighted average yield of 90 day bank-accepted bills is a matter of fact and is incorporated as published by the Reserve Bank of Australia on its website under 'Interest Rates and Yields - Money Market- Daily-F1' at www.rba.gov.au/statistics/tables/index.html.

Historically, the rate of interest for the purposes of section 26 has been:

- the weighted average yield derived from the Treasury note tender for ninety day notes settled immediately prior to the last day of the thirty day settlement period (1988-2003)

- the weighted average yield of 90 day bank-accepted bills, as published by the Reserve Bank of Australia, settled immediately prior to the last day of the thirty day settlement period (2003-current).

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

106

Instrument Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016 [F2016L00720]

Purpose Repeals and substitutes section 10 of the Social Security

(International Agreements) Act 1999, setting out the terms of the Agreement between Australia and the Republic of Austria on social security

Last day to disallow 21 November 2016

Authorising legislation Social Security (International Agreements) Act 1999

Department Social Services

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Incorporation of documents

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above the committee notes that Schedule 1 to the Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016 [F2016L00720] (the regulation) contains the text of the Agreement between Australia and the Republic of Austria on Social Security, and incorporates at Article 14(2), Regulation (EC) No. 883/2004 (the EC Regulation). However, neither the text of the regulation nor the ES expressly states the manner in which the EC Regulation is incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

107

Description of and access to incorporated documents

The committee commented as follows:

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee on Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that that Schedule 1 to the regulation contains the text of the Agreement between Australia and the Republic of Austria on Social Security, and incorporates at Article 14(2), the EC Regulation. However, neither the text of the regulation nor the ES provides a description of the EC Regulation or indicates how it may be freely obtained.

While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of an incorporated document fails to satisfy the requirements of the Legislation Act 2003.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Social Services advised:

Section 8 of the Social Security (International Agreements) Act 1999 (the International Agreements Act) provides for regulations to add to the Act a Schedule setting out the terms of an agreement between Australia and another country if the agreement relates to reciprocity in social security or superannuation matters. The Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016, which adds a new schedule 10 to the International Agreements Act, must therefore set out the exact terms of the agreement between Australia and the Republic of Austria. The reference to Regulation (EC) No. 883/2004 appears in Article 14.2 (Calculation of Austrian Benefits) of the Agreement between Australia and the Republic of Austria on Social Security.

Where the text of an international social security agreement is set out in a Schedule to the Act, the provisions of the agreement have effect despite anything in the social security law (subsection 6(1) of the Act). However, this only applies to provisions of the agreement that are:

• in force; and

• affect the operation of the social security law (subsection 6(2) of the Act).

108

Regulation (EC) No. 883/2004 affects the operation of Austrian law but does not affect the operation of the social security law. The Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016 does not therefore apply, adopt or incorporate Regulation (EC) No. 883/2004 for the purpose of section 14 of the Legislation Act 2003.

I also note the comments of the Committee with respect to the description of and access to incorporated documents.

The Social Security (International Agreements) Amendment (Republic of Austria) Regulation 2016 and the Explanatory Statement do not describe Regulation (EC) No. 883/2004 and how it may be obtained because it affects the operation of Austrian law. Regulation (EC) No. 883/2004 does not affect the operation of the social security law. For that reason, it is not considered necessary to describe Regulation (EC) No. 883/2004 and how it may be obtained in the Explanatory Statement to meet the requirements of paragraph 15J(2)(c) of the Legislation Act 2003.

An explanation of the EC Regulation can be freely obtained from the following website links: http://eur-lex.europa.eu/legal-content/EN/TXT%20/?uri=uriserv%3Ac1052 and http://ec.europa.eu/social/main.jsp?langld=en&catld=849

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

Instrument Tertiary Education Quality and Standards Agency Act 2011 - Determination of Fees (Amendment) No. 1 of 2016 [F2016L01078]

Purpose Provides for the fees payable for applications for registration

and renewal of registration under the Education Services for Overseas Students Act 2000

Last day to disallow 21 November 2016

Authorising legislation Tertiary Education Quality and Standards Agency Act 2011

Department Education and Training

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Unclear basis for determining fees

The committee commented as follows:

109

The Tertiary Education Quality and Standards Agency Act 2011 - Determination of Fees (Amendment) No. 1 of 2016 [F2016L01078] (the determination) amends the Determination of Fees No. 3 of 2013 to provide that the fee for applications for registration and renewal of registration under the Education Services for Overseas Students Act 2000 is $5000.

The ES to the determination states:

The amendment made by this instrument provides that the same fee will be payable for applications for registration or renewal of registration as is currently payable under the ESOS Act for the equivalent applications to TEQSA in its capacity as a designated authority.

The Australian Government has previously decided that TEQSA is to function on a cost recovery basis for certain activities. The 2016-17 Budget includes a measure for the Department of Education and Training to undertake a review of TEQSA’s cost recovery arrangements. Accordingly, the fee amended by this instrument will be considered as part of that review.

The committee's usual expectation in cases where instruments of delegated legislation carry financial implications via the imposition of a charge, fee, levy, scale or rate of costs or payment is that the relevant ES makes clear the specific basis on which an individual imposition or change has been calculated.

With reference to this expectation, the committee notes that, while the ES for the determination suggests that the revised fee relating to registration will be considered as part of a forthcoming review of cost-recovery arrangements, it provides no indication as to the basis on which the fee has been calculated for the purposes of the making of the determination.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Education and Training advised:

As noted in the explanatory statement for the Tertiary Education Quality and Standards Agency Act 2011 - Determination of Fees No. 3 of 2013, the determination of the fees is based on TEQSA's estimate of the costs associated with particular activities, such as staff time, travel and associated costs, and considering historic comparative data and modelling of future costs. TEQSA also considered the fees charged by other agencies, including the state and territory accrediting authorities and the former Australian Universities Quality Agency. The Tertiary Education Quality and Standards Agency (TEQSA) considered that the cost of assessing those applications is likely to be substantially the same as the cost associated with assessing applications under former section 9AA of the Education Services for Overseas Students Act 2000. Accordingly, TEQSA determined that the

same $5000 fee would apply.

TEQSA has prepared an amended explanatory statement for the Tertiary Education Quality and Standards Agency Act 2011 - Determination of Fees

110

(Amendment) No. 1 of 2016 to clarify these matters. A copy of the amended explanatory statement is enclosed for your information.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

Instrument Therapeutic Goods (Permissible Ingredients) Determination No. 2 of 2016 [F2016L01253]

Purpose Revokes Therapeutic Goods (Permissible Ingredients)

Determination No.1 of 2016 [F2016L00588] and specifies ingredients and related requirements for medicines listed on the Australian Register of Therapeutic Goods

Last day to disallow 21 November 2016

Authorising legislation Therapeutic Goods Act 1989

Department Health

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 6 of 2016

Incorporation of documents

The committee commented as follows:

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above the committee notes that Schedule 1 of the determination incorporates at:

 Items 1700 and 1701: the Animal Products Act 1999 (NZ) and the Animal

Welfare Act 1999 (NZ) (the NZ Acts); and

 Items 2328, 2349 and 3921: the relevant FCC monograph and ICH/BP/USP requirements for residual solvents and catalysts (the FCC and ICH/BP/USP).

However, neither the text of the determination nor the ES expressly states the manner in which the NZ Acts, the FCC and ICH/BP/USP are incorpoated.

The

committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from

111

time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Description of and access to incorporated documents

The committee commented as follows:

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee on Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that Schedule 1, items 1700, 1701, 2328, 2349 and 3921 of the determination incorporate NZ Acts, the FCC and ICH/BP/USP. However, neither the text of the determination nor the ES provides a description of the FCC and ICH/BP/USP, or indicates how the NZ Acts, the FCC and ICH/BP/USP may be freely obtained.

While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of an incorporated document fails to satisfy the requirements of the Legislation Act 2003.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Health and Aged Care advised:

In regard to your request for advice on the incorporation of documents into this instrument, my Department's intention was to incorporate these as amended from time to time. The authority to do so is provided by subsection 26BB(8) of the Therapeutic Goods Act 1989, which notes that, notwithstanding subsection 14(2) of the Legislation Act 2003, a determination under section 26BB may make provision in relation to a matter by applying, adopting or incorporating any matter in an instrument or other writing as in force or existing from time to time. The above references will be clarified in the next edition of the permissible ingredients instrument.

In regard to your request for advice on the description of and access to incorporated documents, the current Determination refers to the following New Zealand legislation:

112

• The Animal Products Act 1999 (New Zealand) available free on-line at www.legislation.govt.nz/act/public/1999/0093/latest/DLM33502.html • The Animal Welfare Act 1999 (New Zealand) available free on-line at www.legislation.govt.nz/act/public/1999/0142/latest/DLM49664.html

The current instrument includes reference to the Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use (ICH) which is available for free on line at www.ich.org/home.html.

The current instrument also refers to the following documents that provide international standards for the safety and quality for ingredients for medicines. A fee is required for access to these documents, but it is expected that a sponsor of a medicine included in the Australian Register of Therapeutic Goods would already have access to these documents.

• British Pharmacopoeia, available on-line at: www.pharmacopoeia.com

• United States Pharmacopeia - National Formulary, available on-line at www.usp.org/usp-nf

• Food Chemical Codex published by the United States Pharmacopeial Convention, available on-line at online.foodchemicalscodex.org

The references in question will be clarified in the Explanatory Statement for the October edition of the permissible ingredients instrument, with the exception of the ICH reference which will be removed in future editions of the instrument, as the ICH is a guideline only and not an authoritative standard.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instrument.

The

committee also thanks the minister for her advice that ES for the amended edition of the determination will clarify the references to incorporated documents. In this regard, the committee notes that it will generally be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms. In addition to access for industry members, the committee is interested in the broader issue of access for other parties who might be affected by, or are otherwise interested in, the law.

113

Instrument Work Health and Safety (Managing Electrical Risks in the Workplace) Code of Practice 2015 [F2016L00407]

Work Health and Safety (Preventing Falls in Housing Construction) Code of Practice 2015 [F2016L00411]

Work Health and Safety (Spray Painting and Powder Coating) Code of Practice 2015 [F2016L00412]

Work Health and Safety (Labelling of Workplace Hazardous Chemicals) Code of Practice 2015

[F2016L00413]

Work Health and Safety (How to Safely Remove Asbestos) Code of Practice 2015 [F2016L00418]

Work Health and Safety (Managing Risks of Hazardous Chemicals in the Workplace) Code of Practice 2015 [F2016L00420]

Work Health and Safety (Managing the Work Environment and Facilities) Code of Practice 2015 [F2016L00421]

Work Health and Safety (How to Manage and Control Asbestos in the Workplace) Code of Practice 2015 [F2016L00423]

Work Health and Safety (Preparation of Safety Data Sheets for Hazardous Chemicals) Code of Practice 2015 [F2016L00424]

Work Health and Safety (Managing the Risk of Falls at Workplaces) Code of Practice 2015 [F2016L00425]

Work Health and Safety (Managing Noise and Preventing Hearing Loss at Work) Code of Practice 2015

[F2016L00426]

Purpose These instruments remake Work Health and Safety Codes of

Practice previously set out in compilations as separate instruments

Last day to disallow 13 October 2016

Authorising legislation Work Health and Safety Act 2011

Department Employment

Scrutiny principle Standing Order 23(3)(a)

Previously reported in Delegated legislation monitor 5 of 2016

Incorporation of extrinsic material

The committee commented as follows:

114

Section 14 of the Legislation Act 2003 allows for the incorporation of extrinsic material into instruments. Commonwealth legislative material may be incorporated as in force from time to time or at a particular date. Non-legislative material may only be incorporated as in force at the commencement of the instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that these instruments incorporate requirements set out in a number of Australian Standards and Australian/New Zealand Standards. However, neither the text of the instruments nor the shared ES expressly states the manner in which the standards are incorporated.

The committee further notes that Work Health and Safety (Labelling of Workplace Hazardous Chemicals) Code of Practice 2015 [F2016L00413], Work Health and Safety (Preparation of Safety Data Sheets for Hazardous Chemicals) Code of Practice 2015 [F2016L00424], and Work Health and Safety (Managing Risks of Hazardous Chemicals in the Workplace) Code of Practice 2015 [F2016L00420] incorporate requirements relating to the transport of hazardous chemicals that are contained in the Australian Dangerous Goods Code (ADG Code).

While these instruments define the ADG code as 'the Australian Code for the Transport of Dangerous Goods by Road and Rail, 7th edition, approved by the Australian Transport Council', neither the text of the instruments, nor the shared ES expressly states the matter in which the ADG Code is incorporated.

The committee's usual expectation where instruments incorporate extrinsic material by reference is that the manner of incorporation is clearly specified in the instruments and, ideally, in the ESs. The committee regards this as a best-practice approach that enables anticipated users or persons affected by any such instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Employment advised:

Subsection 274(3) of the Work Health and Safety Act 2011 (WHS Act) provides that approved codes of practice made under the WHS Act may apply, adopt or incorporate material from other documents in force at a particular time or from time to time. Technical documents such as Australian Standards are generally incorporated in the codes as these apply from time to time. However where a particular version of a document is cited, for example AS.NZS 1715:2009 Selection, Use and Maintenance of Respiratory Protective Devices, the document is incorporated as in force at a particular time.

Duty holders are expected to have regard to a range of information and best practice. Technical material that is incorporated by reference should be read in conjunction with the relevant approved code of practice and legislation.

An approved code of practice provides practical guidance to duty holders on achieving the standards of health and safety required under the WHS Act

115

and the Work Health and Safety Regulations 2011 (WHS Regulations). Approved codes of practice are not enforceable. A court may have regard to a code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates and may rely on a code in determining what is reasonably practicable in the circumstances to which the code relates (subsections 275(2) and 275(3)). References to technical material such as Australian Standards is included to further guide duty holders on safe ways of undertaking particular types of work.

It is not always appropriate for an approved code of practice to refer to material, such as an Australian Standard, as it exists at a particular point in time since it is likely to be subject to regular revision as risk management practices evolve over time. Moreover, this material is specific to particular industries and undertakings (for example, the storage of hazardous chemicals) and should be well known to duty holders in those industries and undertakings.

While a cost may be incurred by businesses and undertakings that engage in activities to which the Australian Standards apply, the cost is considered minimal given the overall budgets of Commonwealth departments, Commonwealth public authorities and non-Commonwealth licensees covered by the WHS Act. Subsection 274(6) of the WHS Act requires Comcare to ensure that a copy of each approved code of practice and each document applied, adopted or incorporated (to any extent) by an approved code of practice is available for inspection by members of the public without charge.

The WHS Regulations do not extend to the transportation of dangerous goods. Relevant approved codes of practice note that duty holders must continue to comply with the Australian Code for the Transport of Dangerous Goods by Road and Rail, 7th edition (ADG Code) and relevant state and territory laws for the transport of dangerous goods by road and rail. This additional information is provided to assist duty holders. The ADG Code is defined in all of the approved codes to mean the Australian Code for the Transport of Dangerous Goods by Road and Rail, 7th edition, approved by the Australian Transport Council. The ADG Code is freely available from the National Transport Commission website www.ntc.gov.au.

Committee's response

The committee thanks the minister for her response and has concluded its examination of the instruments.

Appendix 1 Correspondence

117

119

120

121

122

123

124

125

126

127

128

129

130

131

132

133

134

135

136

137

138

139

140

141

142

143

144

145

146

147

148

149

150

151

152

153

154

155

156

157

158

159

160

161

162

163

164

165

166

167

168

169

170

171

172

AMENDED EXPLANATORY STATEMENT

Issued by the Chief Metrologist

National Measurement Act 1960

National Measurement Guidelines 2016

Purpose and Operation

The principal objects of the National Measurement Act 1960 (the Act) are to:

 establish a national system of units and standards of measurement of physical quantities;  provide for the uniform use of those uniform units and standards of measurement throughout Australia;  co-ordinate the operation of the national system of measurement; and  provide the legal framework for a national system of trade measurement.

The Act and the National Measurement Regulations 1999 (the Regulations) prescribe SI (International System of Units) base units of measurement and Australian legal units of measurement. They also prescribe certain additional, non-SI, legal units of measurement that may be used for particular purposes.

Section 7B of the Act provides that the Chief Metrologist may make guidelines governing the way in which Australian legal units of measurement may be combined to produce Australian legal units of measurement, and the way in which Australia legal units of measurement may be combined with a prefix for the purposes of section 7A(3) of the Act.

The purpose of the National Measurement Guidelines 2016 (the Guidelines) is to support the national measurement system by prescribing a uniform system to express Australian legal units of measurement to ensure a common and consistent understanding of measurement units used in Australia and to align the expression of measurement units in Australia with internationally accepted practice.

The Guidelines commenced on 1 April 2016.

Consultation

The Guidelines are a legislative instrument for the purposes of the Legislative Instruments Act 2003. Sections 17 and 18 of the Legislative Instruments Act 2003 require details of consultation undertaken to be provided in the Explanatory Statement accompanying such instruments or their exemption from it. In the case of this legislative instrument, only minor adjustments are being made and there is no change in regulatory policy and no new fee items are introduced. In these circumstances, it is not appropriate to engage in a consultation process.

Details of the Guidelines are set out in the Attachment.

Deleted: Amendment

173

Deleted: 2¶

ATTACHMENT

Details of the National Measurement Amendment Guidelines 2016

Clause 1 - Name of Guidelines

This specifies the name of the Guidelines as the National Measurement Guidelines 2016.

Clause 2 - Authority

This sets out the provision of the National Measurement Act 1960 under which the Guidelines are made.

Clause 3 - Commencement

This provides that the Guidelines commenced on 1 April 2016.

Clause 4 - Revocation

This provides that the Guidelines revokes the National Measurement Guidelines 1999 (the former Guidelines) on 1 April 2016.

Clause 5 - Objects of the Guidelines

This item provides that the objects of the Guidelines are to provide a uniform system to express Australian legal units of measurement by governing the way in which Australian legal units of measurement may be combined to produce an Australian legal unit of measurement, and how they may be combined with prefixes to produce Australian legal units of measurement.

Clause 6 - Definitions

This item provides for definitions of terms used in the Guidelines.

Clause 7 - Physical quantities

Schedule 1 and 2 of the National Measurement Regulations 1999 (the Regulations) prescribes the Australian legal units of measurement for physical quantities. This item replaces the unnecessary duplication of listing physical quantities of Australian legal units of measurement mentioned under the former Guidelines to an amended provision that Australian legal units of measurement may be formed only for the physical quantities prescribed under the Regulations. The amendment removes the requirement to amend the instrument when new Australian legal units of measurement are introduced to ensure that the national measurement legislation provides for the current formation of Australian legal units of measurement.

Clause 8 - Combining Australian legal units of measurement

This item provides that if a physical quantity is formed by combining two or more physical quantities then the Australian legal unit of measurement used to describe the

Deleted: The manner of expression of physical quantities in Australian legal units of measurement is prescribed under schedule

Deleted: schedule

Deleted: ).

Deleted: expressed in

174

Deleted: 2¶

combined physical quantity would be the same as the relationship between the Australian legal units of measurement for those physical quantities. The resulting Australian legal unit of measurement may be then represented by either a name or symbol that is itself derived from an Australian legal unit of measurement. For example the Australian legal unit of measurement of pascal can either be represented as Pa or N/m2. See schedule 1 and 2 of the Regulations for the list of names and symbols of Australian legal units of measurement.

Clause 9 - Combining Australian legal units of measurement and SI prefix

This item provides that a decimal multiple or submultiple of an Australian legal unit of measurement must be formed using a single SI prefix, as prescribed under schedule 3 of the Regulations, with the exemption of a kilogram which due to historical reasons is the only SI base unit which already contains a prefix (kilo) as part of its name.

This item includes a typographical amendment from the former Guidelines. The amendment corrects the example annotating how a decimal multiple or submultiple of an Australian legal unit of measurement, formed using a single SI prefix, is expressed to render it consistent with the requirements in section 13(10) of the instrument. The previous wording may have caused confusion in relation to the use of a space when expressing Australian legal units of measurement.

The item also provides that an additional derived unit of measurement, as listed under part 4 of schedule 1 of the Regulations, may also be combined with another Australian legal unit of measurement to form an Australian legal unit of measurement. For example the amount of gram per mole unit may be represented as grams/mol.

In addition, this item provides that an Australian legal unit of measurement and a SI prefix may be combined with other Australian legal units of measurement symbols, as listed under schedule 1 and 2 of the Regulations, to form a symbol for a compound unit that is an Australian legal unit of measurement. For example the Australian legal unit measurement of metre (m) with the prefix of kilo (k) can be combined with the non-SI unit of time (hour), represented with the symbol (h), to form km/h for a measurement of speed.

Clause 10 - Australian legal units of measurement that must not be combined with prefixes

This item provides the list of Australian legal units of measurement which must not be combined with SI prefixes as to avoid confusion and that as kilogram already contains a prefix a decimal multiple of sub-multiple of kilogram must be formed by attaching a prefix to gram.

Clause 11 - Australian legal units of measurement that may only be combined with prefixes that form multiples of the unit

This item provides the Australian legal units of measurement of tonne may only be combined with an SI prefix that gives a decimal multiple of tonne. For example tonne may be combined with the SI prefix of kilo to form kilotonne which is a multiple of a tonne but not with the SI prefix of milli to form millitonne as it is a decimal sub-multiple of a tonne.

175

Deleted: 2¶

Clause 12 - Combination of a prescribed SI prefix with a combination of Australian Legal units of measurement

This item provides that an Australian legal unit of measurement must be formed from a combination of Australian legal units of measurement as prescribed under section 8 of the instrument and the use of an SI prefix as prescribed under schedule 3 of the Regulations.

Clause 13 - Expression of Australian legal units of measurement

This item provides for requirements when expressing Australian legal units of measurement to align the expression of measurement units in Australia with internationally accepted practice.

This item includes the following amendments from the former Guidelines:

(i) The use of the product symbol of a space is excluded when the symbol for an Australian legal unit of measurement is the same as an SI prefix to align the expression with internationally accepted practice. The previous wording may have caused confusion in relation to the correct expression of Australian legal units of measurement. For example the Australian legal unit of measurement of thermo-dynamic temperature (kelvin) represented with the symbol (K) and length (metre), represented with the symbol (m), may be combined with the SI derived unit of measurement of power (watt), represented with the symbol (W), to form the expressed as m·K/W (metre kelvin per watt) as a measurement for thermal resistivity which if the product symbol of a space was used to form the expression m K/W it may be confused with millikelvin per watt (which itself may be expressed as mK/W). The amendment replaces the requirement previously under section 11(8) of the instrument.

(ii) The example annotating how an Australian legal unit of measurement derived from the division of 2 other Australian legal units of measurement may be expressed to produce an unambiguous expression has been corrected to render it consistent with the requirements in section 13(6) of the instrument. The previous wording may have caused confusion in relation to the correct expression of Australian legal units of measurement.

(iii) The example annotating how a complex expression, negative exponents or parentheses must be used when expressing Australian legal unit of measurement has been corrected to render it consistent with the requirements in section 13(6) of the instrument. The previous wording may have caused confusion in relation to the correct expression of Australian legal units of measurement.

(iv) An exemption to the requirements regarding the use of a space after the numerical value of an Australian legal unit of measurement and the symbol of unit of measurement has been provided for expressing angles. When expressing geographic coordinates no space must be left between the numerical values and the symbols for degrees, minutes and seconds. On consultation with Geoscience Australia the former Guidelines may have caused confusion in relation to expressing geographic coordinates.

176

Deleted: 2¶

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Measurement Guidelines 2016

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The National Measurement Guidelines 2016 support the national measurement system by prescribing a uniform system to express Australian legal units of measurement to ensure a common and consistent understanding of measurement units used in Australia and to align the expression of measurement units in Australia with internationally accepted practice.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

The Chief Metrologist, Peter Fisk

177

AMENDED EXPLANATORY STATEMENT

Issued by the Chief Metrologist

National Measurement Act 1960

National Measurement Guidelines 2016

Purpose and Operation

The principal objects of the National Measurement Act 1960 (the Act) are to:

 establish a national system of units and standards of measurement of physical quantities;  provide for the uniform use of those uniform units and standards of measurement throughout Australia;  co-ordinate the operation of the national system of measurement; and  provide the legal framework for a national system of trade measurement.

The Act and the National Measurement Regulations 1999 (the Regulations) prescribe SI (International System of Units) base units of measurement and Australian legal units of measurement. They also prescribe certain additional, non-SI, legal units of measurement that may be used for particular purposes.

Section 7B of the Act provides that the Chief Metrologist may make guidelines governing the way in which Australian legal units of measurement may be combined to produce Australian legal units of measurement, and the way in which Australia legal units of measurement may be combined with a prefix for the purposes of section 7A(3) of the Act.

The purpose of the National Measurement Guidelines 2016 (the Guidelines) is to support the national measurement system by prescribing a uniform system to express Australian legal units of measurement to ensure a common and consistent understanding of measurement units used in Australia and to align the expression of measurement units in Australia with internationally accepted practice.

The Guidelines commenced on 1 April 2016.

Consultation

The Guidelines are a legislative instrument for the purposes of the Legislative Instruments Act 2003. Sections 17 and 18 of the Legislative Instruments Act 2003 require details of consultation undertaken to be provided in the Explanatory Statement accompanying such instruments or their exemption from it. In the case of this legislative instrument, only minor adjustments are being made and there is no change in regulatory policy and no new fee items are introduced. In these circumstances, it is not appropriate to engage in a consultation process.

Details of the Guidelines are set out in the Attachment.

178

ATTACHMENT

Details of the National Measurement Amendment Guidelines 2016

Clause 1 - Name of Guidelines

This specifies the name of the Guidelines as the National Measurement Guidelines 2016.

Clause 2 - Authority

This sets out the provision of the National Measurement Act 1960 under which the Guidelines are made.

Clause 3 - Commencement

This provides that the Guidelines commenced on 1 April 2016.

Clause 4 - Revocation

This provides that the Guidelines revokes the National Measurement Guidelines 1999 (the former Guidelines) on 1 April 2016.

Clause 5 - Objects of the Guidelines

This item provides that the objects of the Guidelines are to provide a uniform system to express Aus tralian legal units of measurement by governing the way in which

Australian legal units of measurement may be combined to produce an Australian legal unit of measurement, and how they may be combined with prefixes to produce Australian legal units of measurement.

Clause 6 - Definitions

This item provides for definitions of terms used in the Guidelines.

Clause 7 - Physical quantities

Schedule 1 and 2 of the National Measurement Regulations 1999 (the Regulations) prescribes the Australian legal units of measurement for physical quantities. This item replaces the unnecessary duplication of listing physical quantities of Australian legal units of measurement mentioned under the former Guidelines to an amended provision that Australian legal units of measurement may be formed only for the physical quantities prescribed under the Regulations. The amendment removes the requirement to amend the instrument when new Australian legal units of measurement are introduced to ensure that the national measurement legislation provides for the current formation of Australian legal units of measurement.

Clause 8 - Combining Australian legal units of measurement

This item provides that if a physical quantity is formed by combining two or more physical quantities then the Australian legal unit of measurement used to describe the

179

combined physical quantity would be the same as the relationship between the Australian legal units of measurement for those physical quantities. The resulting Australian legal unit of measurement may be then represented by either a name or symbol that is itself derived from an Australian legal unit of measurement. For example the Australian legal unit of measurement of pascal can either be represented as Pa or N/m2. See schedule 1 and 2 of the Regulations for the list of names and symbols of Australian legal units of measurement.

Clause 9 - Combining Australian legal units of measurement and SI prefix

This item provides that a decimal multiple or submultiple of an Australian legal unit of measurement must be formed using a single SI prefix, as prescribed under schedule 3 of the Regulations, with the exemption of a kilogram which due to historical reasons is the only SI base unit which already contains a prefix (kilo) as part of its name.

This item includes a typographical amendment from the former Guidelines. The amendment corrects the example annotating how a decimal multiple or submultiple of an Australian legal unit of measurement, formed using a single SI prefix, is expressed to render it consistent with the requirements in section 13(10) of the instrument. The previous wording may have caused confusion in relation to the use of a space when expressing Australian legal units of measurement.

The item also provides that an additional derived unit of measurement, as listed under part 4 of schedule 1 of the Regulations, may also be combined with another Australian legal unit of measurement to form an Australian legal unit of measurement. For example the amount of gram per mole unit may be represented as grams/mol.

In addition, this item provides that an Australian legal unit of measurement and a SI prefix may be combined with other Australian legal units of measurement symbols, as listed under schedule 1 and 2 of the Regulations, to form a symbol for a compound unit that is an Australian legal unit of measurement. For example the Australian legal unit measurement of metre (m) with the prefix of kilo (k) can be combined with the non-SI unit of time (hour), represented with the symbol (h), to form km/h for a measurement of speed.

Clause 10 - Australian legal units of measurement that must not be combined with prefixes

This item provides the list of Australian legal units of measurement which must not be combined with SI prefixes as to avoid confusion and that as kilogram already contains a prefix a decimal multiple of sub-multiple of kilogram must be formed by attaching a prefix to gram.

Clause 11 - Australian legal units of measurement that may only be combined with prefixes that form multiples of the unit

This item provides the Australian legal units of measurement of tonne may only be combined with an SI prefix that gives a decimal multiple of tonne. For example tonne may be combined with the SI prefix of kilo to form kilotonne which is a multiple of a tonne but not with the SI prefix of milli to form millitonne as it is a decimal sub-multiple of a tonne.

180

Clause 12 - Combination of a prescribed SI prefix with a combination of Australian Legal units of measurement

This item provides that an Australian legal unit of measurement must be formed from a combination of Australian legal units of measurement as prescribed under section 8 of the instrument and the use of an SI prefix as prescribed under schedule 3 of the Regulations.

Clause 13 - Expression of Australian legal units of measurement

This item provides for requirements when expressing Australian legal units of measurement to align the expression of measurement units in Australia with internationally accepted practice.

This item includes the following amendments from the former Guidelines:

(i) The use of the product symbol of a space is excluded when the symbol for an Australian legal unit of measurement is the same as an SI prefix to align the expression with internationally accepted practice. The previous wording may have caused confusion in relation to the correct expression of Australian legal units of measurement. For example the Australian legal unit of measurement of thermo-dynamic temperature (kelvin) represented with the symbol (K) and length (metre), represented with the symbol (m), may be combined with the SI derived unit of measurement of power (watt), represented with the symbol (W), to form the expressed as m·K/W (metre kelvin per watt) as a measurement for thermal resistivity which if the product symbol of a space was used to form the expression m K/W it may be confused with millikelvin per watt (which itself may be expressed as mK/W). The amendment replaces the requirement previously under section 11(8) of the instrument.

(ii) The example annotating how an Australian legal unit of measurement derived from the division of 2 other Australian legal units of measurement may be expressed to produce an unambiguous expression has been corrected to render it consistent with the requirements in section 13(6) of the instrument. The previous wording may have caused confusion in relation to the correct expression of Australian legal units of measurement.

(iii) The example annotating how a complex expression, negative exponents or parentheses must be used when expressing Australian legal unit of measurement has been corrected to render it consistent with the requirements in section 13(6) of the instrument. The previous wording may have caused confusion in relation to the correct expression of Australian legal units of measurement.

(iv) An exemption to the requirements regarding the use of a space after the numerical value of an Australian legal unit of measurement and the symbol of unit of measurement has been provided for expressing angles. When expressing geographic coordinates no space must be left between the numerical values and the symbols for degrees, minutes and seconds. On consultation with Geoscience Australia the former Guidelines may have caused confusion in relation to expressing geographic coordinates.

181

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

National Measurement Guidelines 2016

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of the Legislative Instrument

The National Measurement Guidelines 2016 support the national measurement system by prescribing a uniform system to express Australian legal units of measurement to ensure a common and consistent understanding of measurement units used in Australia and to align the expression of measurement units in Australia with internationally accepted practice.

Human rights implications

This Legislative Instrument does not engage any of the applicable rights or freedoms.

Conclusion

This Legislative Instrument is compatible with human rights as it does not raise any human rights issues.

The Chief Metrologist, Peter Fisk

182

183

184

185

186

187

188

189

190

191

192

193

194

195

196

197

198

199

200

201

202

203

204

205

206

Appendix 2 Guideline on consultation

Purpose This guideline provides information on preparing an explanatory statement (ES) to accompany a legislative instrument, specifically in relation to the requirement that such statements must describe the nature of any consultation undertaken or explain why no such consultation was undertaken.

The committee scrutinises instruments to ensure, inter alia, that they meet the technical requirements of the Legislation Act 2003 (the Act)1 regarding the description of the nature of consultation or the explanation as to why no consultation was undertaken. Where an ES does not meet these technical requirements, the committee generally corresponds with the relevant minister or instrument-maker seeking further information and appropriate amendment of the ES.

Ensuring that the technical requirements of the Act are met in the first instance will negate the need for the committee to write to the relevant minister or instrument-maker seeking compliance, and ensure that an instrument is not potentially subject to disallowance.

It is important to note that the committee's concern in this area is to ensure only that an ES is technically compliant with the descriptive requirements of the Act regarding consultation, and that the question of whether consultation that has been undertaken is appropriate is a matter decided by the instrument-maker at the time an instrument is made.

However, the nature of any consultation undertaken may be separately relevant to issues arising from the committee's scrutiny principles, and in such cases the committee may consider the character and scope of any consultation undertaken more broadly.

Requirements of the Legislation Act 2003 Section 17 of the Act requires that, before making a legislative instrument, the instrument-maker must be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument.

It is important to note that section 15J of the Act requires that ESs describe the nature of any consultation that has been undertaken or, if no such consultation has been undertaken, to explain why none was undertaken.

1 On 5 March 2016 the Legislative Instruments Act 2003 became the Legislation Act 2003 due to amendments made by the Acts and Instruments (Framework Reform) Act 2015.

208

It is also important to note that requirements regarding the preparation of a Regulation Impact Statement (RIS) are separate to the requirements of the Act in relation to consultation. This means that, although a RIS may not be required in relation to a certain instrument, the requirements of the Act regarding a description of the nature of consultation undertaken, or an explanation of why consultation has not occurred, must still be met. However, consultation that has been undertaken under a RIS process will generally satisfy the requirements of the Act, provided that that consultation is adequately described (see below).

If a RIS or similar assessment has been prepared, it should be provided to the committee along with the ES.

Describing the nature of consultation To meet the requirements of section 15J of the Act, an ES must describe the nature of any consultation that has been undertaken. The committee does not usually interpret this as requiring a highly detailed description of any consultation undertaken. However, a bare or very generalised statement of the fact that consultation has taken place may be considered insufficient to meet the requirements of the Act.

Where consultation has taken place, the ES to an instrument should set out the following information:

 Method and purpose of consultation: An ES should state who and/or which bodies or groups were targeted for consultation and set out the purpose and parameters of the consultation. An ES should avoid bare statements such as 'Consultation was undertaken'.

 Bodies/groups/individuals consulted: An ES should specify the actual

names of departments, bodies, agencies, groups et cetera that were consulted. An ES should avoid overly generalised statements such as 'Relevant stakeholders were consulted'.

 Issues raised in consultations and outcomes: An ES should identify the

nature of any issues raised in consultations, as well as the outcome of the consultation process. For example, an ES could state: 'A number of submissions raised concerns in relation to the effect of the instrument on retirees. An exemption for retirees was introduced in response to these concerns'.

Explaining why consultation has not been undertaken To meet the requirements of section 15J of the Act, an ES must explain why no consultation was undertaken. The committee does not usually interpret this as requiring a highly detailed explanation of why consultation was not undertaken. However, a bare statement that consultation has not taken place may be considered insufficient to meet the requirements of the Act.

209

In explaining why no consultation has taken place, it is important to note the following considerations:

 Absence of consultation: Where no consultation was undertaken the Act requires an explanation for its absence. The ES should state why consultation was unnecessary or inappropriate, and explain the reasoning in support of this conclusion. An ES should avoid bare assertions such as 'Consultation was not undertaken because the instrument is beneficial in nature'.

 Timing of consultation: The Act requires that consultation regarding an

instrument must take place before the instrument is made. This means that, where consultation is planned for the implementation or post-operative phase of changes introduced by a given instrument, that consultation cannot generally be cited to satisfy the requirements of sections 17 and 15J of the Act.

In some cases, consultation is conducted in relation to the primary legislation which authorises the making of an instrument of delegated legislation, and this consultation is cited for the purposes of satisfying the requirements of the Act. The committee may regard this as acceptable provided that (a) the primary legislation and the instrument are made at or about the same time and (b) the consultation addresses the matters dealt with in the delegated legislation.

Seeking further advice or information Further information is available through the committee's website at http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_ Ordinances or by contacting the committee secretariat at:

Committee Secretary Senate Regulations and Ordinances Committee PO Box 6100 Parliament House Canberra ACT 2600 Australia

Phone: +61 2 6277 3066 Fax: +61 2 6277 5881 Email: RegOrds.Sen@aph.gov.au