National Disability Insurance Scheme (Facilitating the Preparation of Participants' Plans Queensland) Rules 2016 [F2016L00342] -Concluded matters [2016] AUSStaCSDLM 266 (12 October 2016)

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Instrument	National Disability Insurance Scheme (Facilitating the Preparation of Participants' Plans—Queensland) Rules 2016 [F2016L00342]
Purpose	Outlines the phasing schedule for the preparation of participants’ plans in the Queensland early transition sites of Charters Towers, Townsville and Palm Island
Last day to disallow	13 October 2016
Authorising legislation	National Disability Insurance Scheme Act 2013
Department	Social Services
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.

With reference to the above, the committee notes that section 3.4 of the instrument contains the following definitions:

Townsville means the area specified as such under Schedule 1 of the Local Government Regulation 2012 (Qld).
Charters Towers means the area specified as such under Schedule 1 of the Local Government Regulation 2012 (Qld).
2016 NDIS early transition area has the same meaning as in the National Disability Insurance Scheme (Becoming a Participant) Rules 2013.
Palm Island means the area specified as such under Schedule 1 of the Local Government Regulation 2012 (Qld).

However, neither the text of the instrument nor the ES expressly states the manner in which the Local Government Regulation 2012 (Qld) or the National Disability Insurance Scheme (Becoming a Participant) Rules 2013 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 National Disability Insurance Scheme (Becoming a Participant) Rules 2013) can be taken to be references to versions of those instruments as in force from time to time. However, this construction does not apply to the Local Government Regulation 2012 (Qld).

The committee further notes that subsection 209(2) of the National Disability Insurance Scheme Act 2013 provides that, despite section 14 of the Legislation Act 2003, the National Disability Insurance Scheme Rules ‘may make provision for or in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time’.

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.

Minister's response

The Minister for Social Services advised:

...our intention was to incorporate the regulation as in force at the time the rules were made. Having regard to section 14 of the Legislation Act 2003, I will submit a revised ES, following consultation with Queensland.

Committee's response

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

The committee notes the minister's undertaking to amend the ES to state the manner in which the document is incorporated.