Carbon Credits (Carbon Farming Initiative Facilities) Methodology Determination 2015 [F2015L01346]-Concluded matters [2015] AUSStaCSDLM 255 (2 December 2015)

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Instrument	Carbon Credits (Carbon Farming Initiative—Facilities) Methodology Determination 2015 [F2015L01346]
Purpose	Supports Emissions Reduction Fund (ERF) projects through crediting verified emissions reductions achieved through a reduction in emissions per unit of output at facilities that report emissions under the National Greenhouse and Energy Reporting Scheme and produce a saleable product
Last day to disallow	12 November 2015
Authorising legislation	Carbon Credits (Carbon Farming Initiative) Act 2011
Department	Environment
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor No. 11 of 2015

Incorporation of extrinsic material

The committee commented as follows:

This instrument provides for procedures for estimating greenhouse gas abatement for offsets projects under the Carbon Credits (Carbon Farming Initiative) Act 2011.

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).

Subsection 106(8) of the authorising legislation for the instrument (the Carbon Credits (Carbon Farming Initiative) Act 2011) provides that instruments may apply, adopt or incorporate (with or without modifications) matter contained in any other instrument or writing 'as in force or existing at a particular time' or 'as in force or existing from time to time' (thereby altering the effect of section 14 of the Legislative Instruments Act 2003).

With reference to the above, the committee notes that various provisions of the instrument refer to the ‘NGER (Measurement) Determination’ which is defined in section 5 of the instrument as the National Greenhouse and Energy Reporting (Measurement) Determination 2008. However, neither the instrument nor the explanatory statement (ES) expressly states the manner in which the determination in question is incorporated.

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

Minister's response

The Minister for the Environment advised:

The Facilities Method incorporates the National Greenhouse and Energy Reporting (Measurement) Determination 2008 as in force from time to time. This occurs through section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislative Instruments Act 2003), which has the effect that references to external documents which are Commonwealth disallowable legislative instruments (such as the National Greenhouse Emissions Reporting (Measurement) Determination 2008) are taken to be references to versions of those instruments as in force from time to time.

It is also the standard drafting practice of the Office of Parliamentary Counsel, who drafted the Facilities Method, to not expressly state the manner of incorporation if the material being incorporated is a Commonwealth Act or a Commonwealth disallowable legislative instrument and the intention is that the material be incorporated as in force from time to time.

Committee's response

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

However, while the committee is grateful for the minister's clarification that the National Greenhouse and Energy Reporting (Measurement) Determination 2008 is incorporated as in force from time, it reiterates its usual expectation that, where an instrument incorporates extrinsic material by reference, the manner of incorporation is clearly specified in the instrument and, ideally, in the explanatory statement (ES). This approach 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, including legislation not identified in the instrument.