Excise (Volume of LPG-Temperature and Pressure Correction) Determination 2016 (No 1) [F2016L00130], Excise (Mass of CNG) Determination 2016 (No 1) [F2016L00131], Excise (Volume of Liquid Fuels-Temperature Correction) Determination 2016 (No 1) [F20I6L00133]-Concluded matters [2016] AUSStaCSDLM 212 (14 September 2016)

Instrument	Excise (Volume of LPG - Temperature and Pressure Correction) Determination 2016 (No. 1) [F2016L00130] Excise (Mass of CNG) Determination 2016 (No. 1) [F2016L00131] Excise (Volume of Liquid Fuels - Temperature Correction) Determination 2016 (No. 1) [F20I6L00133]
Purpose	These instruments specify methods for determining the volume or mass of particular excisable substances
Last day to disallow	30 August 2016; 30 August 2016; 1 September 2016
Authorising legislation	Excise Act 1901
Department	Treasury
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 3 of 2016

Incorporation of extrinsic material

The committee commented as follows:

These instruments remake earlier instruments in response to the committee's previous inquiries as to the manner of incoporation of extrinsic material. The committee had sought this information from the Assistant Treasurer in keeping with its expectation that ESs clearly state the manner of incorporation of extrinsic material.^[1]

The committee's examination of the remade instruments raises the following issue with respect to the incorporation of extrinsic material in the revised instruments.

Section 14 of the Legislative Instruments Act 2003 provides for the incorporation of extrinsic material into instruments. 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 the first instrument refers to the:

• American Society for Testing and Materials (ASTM) Petroleum Measurement Tables for Light Hydrocarbon Liquids – Density Range 0.500 to 0.653 Kg/L at 15º C; and

• American Petroleum Institute (API) Manual of Petroleum Measurement Standards, Chapter 11.2.2M – Compressibility Factors for Hydrocarbons: 350-637 kg/m3 Density (15º C) and -46º C to 60º C metering temperature.

The second instrument refers to the:

• Australian Standard/International Organization for Standardization AS ISO 13443-2007, Natural gas – Standard reference conditions; and

• International Organization for Standardization ISO 6976-1995 Natural gas – Calculation of calorific values, density and Wobbe index from composition.

The third instrument refers to the:

• American Society for Testing and Materials (ASTM) Petroleum Measurement Tables Volume Correction Factors, Volume VIII; and

• Practical Alcohol Tables.

The instruments also seek to incorporate the 'current version [of these documents] as they exist at the time of commencement of the determination or any version that comes into existence thereafter.' The committee understands this to mean that the documents are incorporated 'as in force from time to time' (to use the language of section 14 of the Legislative Instruments Act 2003).

However, the committee has not been able to identify any provision in the Excise Act 1901 or any other Act that expressly allows for the incorporation of these documents, which are non-legislative in character, as in force from time to time.

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

Minister's response

The former Assistant Treasurer advised:

The Australian Taxation Office has advised me that they will repeal the above mentioned legislative instruments and register new determinations and corresponding explanatory statements in order to address the concerns of the Committee. The new legislative instruments will contain directions on the manner of incorporation of the extrinsic material, namely that the edition of the standard set out in the Legislative Instrument is to be used on the commencement of the respective determinations, at that particular date.
The new legislative instruments and explanatory statements will be forwarded to the tabling officers prior to the last day of disallowance as specified in the legislation monitor.

Committee's response

The committee thanks the former Assistant Treasurer for her response and has concluded its examination of the instruments.

The committee notes the former Assistant Treasurer's undertaking that the Australian Taxation Office will repeal and remake the instruments to address the committee's concerns by incorporating the extrinsic material as at their commencement.

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[1] The earlier instruments were the Excise (Volume of Liquid Fuels - Temperature Correction) Determination 2015 (No. 1) [F2015L01732]; the Excise (Mass of CNG) Determination 2015 (No. 1) [F2015L01733]; and the Excise (Volume of LPG – Temperature and Pressure Correction) Determination 2015 (No. 1) [F2015L01745]: see Delegated legislation monitor 15of 2015; and 1 and 2 of 2016.