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Monday, 13 October 2008
Page: 5777


Senator WORTLEY (3:54 PM) —On behalf of the Standing Committee on Regulations and Ordinances, I give notice that 15 sitting days after today I shall move that the following delegated legislation be disallowed:

(1)   Defence Force (Home Loans Assistance) Amendment Regulations 2008 (No. 1 and contained in Select Legislative Instrument 2008 No. 138 and made under the Defence Force (Home Loans Assistance) Act 1990.

(2)   Livestock Export (Merino) Orders (Amendment) No. 1 of 2008 made under regulation 3 of the Export Control (orders) Regulations 1982.

(3)   Instrument No. CASA 389/08 made under regulation 208 of the Civil Aviation Regulations 1988.

(4)   Instrument No. CASA 390/08 made under regulation 208 of the Civil Aviation Regulations 1988.

(5)   Instrument No. CASA 397/08 made under subregulation 38(1) if the Civil Aviation Regulations 1988.

(6)   Instrument No. CASA 414/08 made under subregulation 38(1) of the Civil Aviation Regulations 1988.

(7)   Wool Services Privatisation (Research Body) Declaration 2008 made under subsection 30(1) of the Wool Services Privatisation Act 2000.

I seek leave to incorporate in Hansard a short summary of the matters raised by the committee.

Leave granted.

The summary read as follows—

Defence Force (Home Loans Assistance) Amendment Regulations 2008 (No. 1)

These Regulations permit the use and disclosure of personal information in connection with the administration of the Defence Force home ownership assistance scheme.  The Explanatory Statement indicates that there has been consultation with certain Departments, but the Privacy Commissioner does not appear to have been consulted.  The Minister advised that the department has since sought and is awaiting the Privacy Commissioner’s assessment of the privacy implications of the Scheme.

Livestock Export (Merino) Orders (Amendment) No. 1 of 2008

These Orders incorporate the current edition of the Guidelines and Conditions for Export Sales and Nomination of Merino Rams as Export Semen Donors into the principal Orders.  Clause 7 of Annexure A to the Guidelines gives the Australian Association of Stud Merino Breeders Limited an absolute discretion to refuse entry for the sale of any rams, without liability for compensation.  This is a very broad discretion the exercise of which may adversely affect the business of sheep breeders.  No criteria or grounds have been specified as prerequisites for the exercise of the discretion.  The Committee has written to the Minister seeking advice on this matter.

Instruments Nos. CASA 389/08 and CASA 390/08

Both of these instruments, which commence on 1 August 2008, are intended to apply in the place of CASA 445/07 which expired on 31 July 2008.  As with CASA 445/07 the two instruments appear to provide for the cabin attendant to passenger ratio of one cabin attendant for every 50 passengers carried on Boeing 737-800 series aircraft.  The exemption from Civil Aviation Order 20.16.3 originally provided for in CASA 445/07 is now contained in two instruments, with CASA 389/08 providing for aircraft that carry 50 or fewer passengers and CASA 390/08 for aircraft carrying more than 50 passengers.

Instrument No. CASA 445/07 was subject to a notice of disallowance that was not withdrawn by the Committee until 26 August 2008.  Section 47 of the Legislative Instruments Act 2003 prevents the making of a legislative instrument that is the same in substance as an instrument that is subject to disallowance.  The Explanatory Statements that accompany these instruments make no reference to the notice of disallowance on CASA 445/07, nor whether legal advice was sought as to the implications of making the instruments while the notice was still active.  The Committee has written to the Minister seeking advice on this matter.

Instruments Nos. CASA 397/08 and CASA 414/08

These interim instruments require compliance by Qantas Airways Limited, Jetstar Airways Pty Ltd and Virgin Blue International Airlines Pty Ltd with each Airworthiness Directive (AD) that is issued by the National Airworthiness Authority of the particular State of Design for certain aircraft.  The State of Design AD is to be regarded as if it were an Australian AD.  The Explanatory Statement that accompanies each instrument indicates that there is a wider proposal to amend Part 39 of the Civil Aviation Safety Regulations 1998 to authorise all State of Design ADs.  The Minister advised that under the proposed general amendments, non-Australian State of Design ADs will no longer be subject to Parliamentary scrutiny, while ADs generated and issued by CASA (either as the Australian State of Design or because of any safety issues identified by CASA) will continue to be considered legislative instruments and subject to Parliamentary scrutiny.  Such a distinction, based simply on country of origin of design, seems arbitrary and an invitation to inconsistency. Its effect seems to be to remove a large number of instruments from continuing parliamentary oversight. The Committee has written to the Minister seeking further information on this matter.

Wool Services Privatisation (Research Body) Declaration 2008

This instrument determines that Australian Wool Innovation Ltd (AWI) is the research body for the purposes of the Wool Services Privatisation Act 2000. 

The Explanatory Statement that accompanies this instrument advises that AWI was declared to be the research body in December 2000 but that its status lapsed in October 2006 when, due to an administrative error, the declaration was repealed by operation of the Legislative Instruments Act 2003.  Accordingly, this present instrument is expressed to commence retrospectively from 1 October 2006.  The Explanatory Statement also notes that AWI has continued to receive funding between 1 October 2006 and the date of this instrument.  It appears that the intention of this instrument, in part, is to retrospectively validate the receipt of those funds.  The use of a retrospective legislative instrument as a remedy in these circumstances may not be appropriate.

The Committee sought advice from the Minister as to whether this is the intention of the instrument.  The Minister advised that the declaration is a precondition to entering into a contract but that it appears to be an administrative formality rather than a substantive requirement. The Committee has written to the Minister seeking clarification of this distinction.