Antarctic Treaty (Environment Protection) Amendment (2012 and 2013 Measures Historic Sites and Monuments) Proclamation 2014 [F2014L01740]-New matters [2015] AUSStaCSDLM 15 (11 February 2015)

• Antarctic Treaty (Environment Protection) Amendment (2012 and 2013 Measures—Historic Sites and Monuments) Proclamation 2014 [F2014L01740]

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Antarctic Treaty (Environment Protection) Amendment (2012 and 2013 Measures—Historic Sites and Monuments) Proclamation 2014 [F2014L01740]

Purpose	Amends the Antarctic Treaty (Environment Protection – Historic Sites and Monuments) Proclamation 2007 to declare four additional Antarctic Historic Sites and Monuments (HSMs) following their adoption at the 36th Antarctic Treaty Consultative Meeting (ATCM) in 2013, and to vary the description of seven existing HSMs declared under the Principal Proclamation
Last day to disallow	26 March 2015
Authorising legislation	Antarctic Treaty (Environment Protection) Act 1980
Department	Environment

Issue:

Insufficient information regarding consultation

Section 17 of the Legislative Instruments 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, particularly where that instrument is likely to have an effect on business. Section 18, however, provides that in some circumstances such consultation may be unnecessary or inappropriate. 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 (section 26). With reference to these requirements, the committee notes that the ES states:

Australia is an Antarctic Treaty Consultative Party under the Antarctic Treaty and the Proclamation seeks to give effect to measures agreed to by Antarctic Treaty Consultative Parties under the Antarctic Treaty...
All relevant Treaty Parties, including Australia, unanimously approved the variation of the descriptions of the HSMs [Historic Sites and Monuments] under Measure 11 at the 35th Antarctic Treaty Consultative Meeting in 2012.

While the committee does not usually interpret section 26 as requiring a highly detailed description of consultation undertaken, its usual approach is to consider an overly bare or general description, such as in this case, as not being sufficient to satisfy the requirements of the Legislative Instruments Act 2003. The committee's expectations in this regard are set out in the 'Guideline on consultation' in Appendix 2 of this report. Noting, however, that the instrument resulted from a treaty process, the committee therefore draws the matter to the minister's attention in this instance.