Marine Order 11 (Living and working conditions on vessels) 2015 [F2015L00609]-Concluded matters [2015] AUSStaCSDLM 137 (12 August 2015)

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

Instrument	Marine Order 11 (Living and working conditions on vessels) 2015 [F2015L00609]
Purpose	Gives effect to the International Labour Organization's Maritime Labour Convention 2006 and the International Marine Organization's Code on noise levels on board ships; and also prescribes additional requirements for living and working conditions on regulated Australian vessels
Last day to disallow	13 August 2015
Authorising legislation	Navigation Act 1958
Department	Infrastructure and Regional Development
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor No. 7

Incorporation of extrinsic material

The committee commented as follows: This order repeals and replaces Marine Order 11 (living and working conditions) on vessels 2013, which was due to 'sunset' (that is, be automatically repealed) on 1 May 2015. The instrument incorporates a number of documents, which, in line with the committee's expectation that an explanatory statement (ES) explain the purpose and operation of the instrument, are listed in the ES as documents incorporated by reference.

First, the committee notes that the document, Marine Order 15 (construction – fire protection, fire detection and fire extinction) 2014 is included in the list of incorporated documents in the ES. However, this differs to the date of Marine Order 15 referenced in the instrument at schedule 4, item 5(a), which refers to Marine Order 15 (construction – fire protection, fire detection and fire extinction) 2009. While it appears likely that the latter document is intended to be incorporated, it is unclear to the committee on a reading of the instrument and the ES what the intention of the

rule-maker was in this regard.

Second, section 14 of the Legislative Instruments Act 2003 allows for the incorporation of both legislative and non-legislative extrinsic material into instruments either as, respectively, in force from time to time or as in force at a particular date (subject to any provisions in the authorising legislation which may alter the operation of section 14). In this regard, the committee notes that neither the instrument nor the ES expressly states the manner of incorporation of Marine Order 15. 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 to necessarily consult extrinsic material.

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

Minister's response

The Deputy Prime Minister, and Minister for Infrastructure and Regional Development, advised that the reference in the instrument at schedule 4, item 5(a), which refers to Marine Order 15 (construction – fire protection, fire detection and fire extinction) 2009, was an oversight, and that it will be corrected in an amendment of the order proposed for later this year.

Further the Deputy Prime Minister stated:

It was the Australian Maritime Safety Authority's intention to refer to the current (2014) version of Marine Order 15, and therefore to rely on paragraph 10(a) of the Acts Interpretation Act 1901 so that the cross-reference would be a reference to Marine Order 15 as amended from time to time.
Committee's response
The committee thanks the Deputy Prime Minister for his response and has concluded its examination of the instrument.
The committee notes that the Deputy Prime Minister's advice clarifies that the instrument is intended to incorporate current Marine Order 15 as amended from time to time; and that this is provided for under section 14 of the Legislative Instruments Act 2003.
The committee also notes that any uncertainty in this regard will be removed by the minister's proposed amendment to the order.