Major Bank Levy Bill 2017 [2017] AUSStaCSBSD 177 (14 June 2017)

• Major Bank Levy Bill 2017
• Incorporation of materials existing from time to time 86

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Major Bank Levy Bill 2017

Purpose	This bill seeks to introduce a levy on authorised deposit‑taking institutions with total liabilities of greater than $100 billion
Portfolio	Treasury
Introduced	House of Representatives on 30 May 2017
Scrutiny principle	Standing Order 24(1)(a)(iv) and (v)

Incorporation of materials existing from time to time ^[86]

1.130 Subclauses 5(4), 6(4) and 8(1) enable the Minister to, by legislative instrument, determine a kind of amount relating to a levy or the method for working out an amount of liability. Subclauses 5(5), 6(5) and 8(2) allow any such legislative instrument to apply, adopt or incorporate any matter contained in any other instrument or writing as in force or existing from time to time. The explanatory memorandum provides no explanation as to what type of instruments or documents may need to be applied, adopted or incorporated and does not explain why it would be necessary for the material to apply as in force or existing from time to time.

1.131 At a general level, the committee will have scrutiny concerns where provisions in a bill allow the incorporation of legislative provisions by reference to other documents because such an approach:

• raises the prospect of changes being made to the law in the absence of parliamentary scrutiny (for example, where an external document is incorporated as in force 'from time to time' this would mean that any future changes to that document would operate to change the law without any involvement from Parliament);

• can create uncertainty in the law; and

• means that those obliged to obey the law may have inadequate access to its terms (in particular, the committee will be concerned where relevant information, including standards, accounting principles or industry databases, is not publicly available or is available only if a fee is paid).

1.132 As a matter of general principle, any member of the public should be able to freely and readily access the terms of the law. Therefore, the committee's consistent scrutiny view is that where material is incorporated by reference into the law it should be freely and readily available to all those who may be interested in the law.

1.133 The issue of access to material incorporated into the law by reference to external documents such as Australian and international standards has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.^[87] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

1.134 Noting the above comments, the committee requests the Treasurer's advice as to the type of documents that it is envisaged may be applied, adopted or incorporated by reference under subclauses 5(5), 6(5) and 8(2), whether these documents will be made freely available to all persons interested in the law and why it is necessary to apply the documents as in force or existing from time to time, rather than when the instrument is first made.

1.1

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[86] Subclauses 5(5), 6(5) and 8(2). The committee draws Senators’ attention to this provision pursuant to principles 1(a)(iv) and (v) of the committee’s terms of reference.

[87] Joint Standing Committee on Delegated Legislation, Parliament of Western Australia, Access to Australian Standards Adopted in Delegated Legislation, June 2016.