Broadcasting Services Clarification Notice 2016 [F2016L00366]-Advice only [2016] AUSStaCSDLM 139 (3 May 2016)

Instrument	Broadcasting Services Clarification Notice 2016 [F2016L00366]
Purpose	Consolidates and replaces two former instruments to provide certainty about the category of service into which certain broadcasting services fall under the Broadcasting Services Act 1992
Last day to disallow	15 sitting days after tabling (18 April 2016)
Authorising legislation	Broadcasting Services Act 1992
Department	Communications and the Arts
Scrutiny principle	Standing Order 23(3)(a)

Incorporation of extrinsic material

Section 14 of the Legislation Act 2003 allows for the incorporation of extrinsic material into instruments. Commonwealth legislative material may be incorporated as in force from time to time or at a particular date. Non-legislative material may only be incorporated as in force at the commencement of the instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that section 4 of the instrument sets out the following definition:

ancillary communication service has the meaning given in Appendix 2 to the Broadcasting Services (Technical Planning) Guidelines 2007

However, neither the text of the instrument nor the ES expressly states the manner in which the Broadcasting Services (Technical Planning) Guidelines 2007 are incorporated.

The committee acknowledges that section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) has the effect that references to external documents which are Commonwealth disallowable instruments (such as the Broadcasting Services (Technical Planning) Guidelines 2007) can be taken to be references to versions of those instruments as in force from time to time.

However, 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 therefore considers that, notwithstanding the operation of section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003), and in the interests of promoting clarity and intelligibility of an instrument to anticipated users, instruments (and, ideally, their accompanying ESs) should clearly state the manner of incorporation of extrinsic material.

The committee draws this matter to the minister's attention.