Building Energy Efficiency Disclosure (Disclosure Affected Buildings) Determination 2016 [F2016L01148] and Building Energy Efficiency Disclosure Determination 2016 [F2016L01276] -Concluded matters [2016] AUSStaCSDLM 246 (12 October 2016)

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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)
Previously reported in	Delegated legislation monitor 6 of 2016

Access to incorporated documents

The committee commented as follows:

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.

Minister's response

The Minister for the Environment and Energy advised:

The Committee has identified that the measurement standards for Net Lettable Area (NLA) referenced in the instrument are published by the Property Council of Australia Limited (PCA). The standard is readily available from the PCA, but a fee applies.
The Building Energy Efficiency Disclosure Act (the BEED Act) establishes the Commercial Building Disclosure (CBD) Program, which requires the public disclosure of energy efficiency information relating to large commercial office spaces. The aim of the CBD Program is to improve the energy efficiency of Australia's large office buildings, ensuring prospective buyers and tenants have access to consistent and accurate energy efficiency information about office spaces to better inform sale and leasing decisions.
The CBD Program incorporates and makes use of the pre-existing National Australian Built Environment Rating System (NABERS) program. NABERS is managed nationally by the NSW Office of Environment and Heritage (OEH), on behalf of Commonwealth, state and territory governments and provides a framework for rating and comparing the sustainability performance of buildings. The CBD Program requires building owners and lessors to display a certified NABERS rating when advertising commercial office buildings for sale or lease.
A key component of the NABERS rating system is the measurement of relevant building floor area, a significant moderating factor when comparing building sustainability performance. The PCA Method of Measurement for Lettable Area 1997 is the accepted industry standard for measuring the floor area of commercial office space in the Australian property market, and has been used as the standard for measuring building floor area from the inception of the NABERS program in 1998.
While the referenced NLA method is available only for a fee, it should be noted the BEED Act does not apply to the general public, but rather it applies to building owners and lessors of large commercial office spaces. Further, building owners and lessors do not need to purchase the method.
It is used by CBD Assessors to provide NABERS ratings for the owners and lessors. There are currently 180 accredited CBD assessors.
CBD Assessors must undertake a CBD training course and associated accreditation exams to achieve CBD accreditation and be allowed to participate in the program. These accreditation processes help to maintain the high quality standards required for the CDB program. It is a prerequisite to becoming a CBD Assessor that the person holds NABERS accreditation. NABERS accreditation is used for a range of purposes beyond the CBD program. The assessor will, therefore, need to have purchased the NLA method prior to seeking CBD accreditation.
While there are various costs for CBD Assessors associated with training courses and accreditation, the additional cost of procuring the NLA method is a once-off, minimal cost in comparison to other accreditation costs. Accordingly, the Australian Government does not consider the fee to be an unreasonable impost on persons affected by the law.

Committee's response

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

The committee also welcomes the minister's additional advice that the incorporated measurement method is used by Commercial Building Disclosure Assessors (of which there are currently 180) to provide National Australian Built Environment Rating System ratings for the owners and lessors of large commercial buildings; and that the Government does not consider the fee for accessing the measurement method to be an unreasonable impost on persons affected by the law.

However, the committee reiterates its concerns about the incorporation of documents where there is a cost to access the material. The committee's expectations where a legislative instrument incorporates a document generally accord with the approach of the Senate Standing Committee for the 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. In addition to access for industry members, the committee is interested in the broader issue of access for other parties who might be affected by, or are otherwise interested in, the law.