Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2016 [F2016L01148] and Building Energy Efficiency Disclosure Determination 2016 [F2016L01276]-Response required [2016] AUSStaCSDLM 172 (14 September 2016)

Instrument	Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2016 [F2016L01148] Building Energy Efficiency Disclosure Determination 2016 [F2016L01276]
Purpose	The determinations specify buildings, and areas of buildings, that are disclosure affected for the purposes of the Building Energy Efficiency Disclosure Act 2010; and set assessment methods and standards for building energy efficiency
Last day to disallow	21 November 2016
Authorising legislation	Building Energy Efficiency Disclosure Act 2010
Department	Environment and Energy
Scrutiny principle	Standing Order 23(3)(a)

Access to incorporated documents

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of a legislative instrument, unless authorising or other legislation alters the operation of section 14.

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the ES for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee on Scrutiny of Bills, which has consistently drawn attention to legislation that incorporates documents not readily and freely available to the public. Generally, the committee will be concerned where incorporated documents are not publicly and freely available, because persons interested in or affected by the law may have inadequate access to its terms.

With reference to the above, the committee notes that section 4 of the determinations incorporate, as in force at the commencement of the determinations, the document Method of Measurement for Lettable Area (the measurement method). A note to section 4 states:

The document Method of Measurement for Lettable Area is available from the Property Council of Australia Limited’s website at http://www.propertyoz.com.au.

However, the committee notes that the measurement method is only available for a fee of $210 from the Property Council of Australia Limited, and the ESs do not provide any information as to whether the measurement method is otherwise freely available.

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