Export Control (Prescribed Goods General) Amendment (Official Marks) Order 2016 [F2016L00432]-Concluded matters [2016] AUSStaCSDLM 213 (14 September 2016)

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Instrument	Export Control (Prescribed Goods—General) Amendment (Official Marks) Order 2016 [F2016L00432]
Purpose	This order updates provisions relating to official marks and seals and removes marks and seals that are no longer required
Last day to disallow	13 October 2016
Authorising legislation	Export Control (Orders) Regulations 1982
Department	Agriculture and Water Resources
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 5 of 2016

Incorporation of extrinsic material

The committee commented as follows:

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.

The committee notes that subsection 25(5) of the Export Control Act 1982 may operate to allow the Order to incorporate non-legislative material as in force at a particular date or as in force from time to time.

With reference to the above, the committee notes that the instrument requires that official marks comply with certain requirements, including at sections 13.10A and 13.11A of the instrument, those set out in ISO 17712:2013 Freight containers – Mechanical seals published by the International Organisation for Standardization. However, neither the text of the instrument nor the ES expressly states the manner in which ISO 17712:2013 is incorporated.

The committee's usual expectation where instruments incorporate extrinsic material by reference is that the manner of incorporation is clearly specified in the instruments and, ideally, in the ESs. 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.

Department's response

The Secretary of the Department of Agriculture and Water Resources advised:

As the issue raised by the Committee is of a technical nature and does not relate to matters of policy, it is appropriate that I respond on behalf of the Deputy Prime Minister during the caretaker period.
The department advises that references in the Order to ISO 17712:2013 Freight containers - Mechanical seals be read as 'International Standards ISO 17712:2013 Freight containers - Mechanical seals as in force at the commencement of the Order'.
I note that the Committee places considerable reliance on explanatory statements to explain legislative instruments and the incorporation of extrinsic material. My department will, where possible, seek to include all necessary information in explanatory statements to address the incorporation of any extrinsic material.

Committee's response

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

The committee also thanks the secretary for his advice that future ESs to instruments will state how documents are incorporated.