Treasury Laws Amendment (2016 Measures No 3) Regulation 2016 [F2016L01625] -Response required [2016] AUSStaCSDLM 349 (23 November 2016)

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Instrument	Treasury Laws Amendment (2016 Measures No. 3) Regulation 2016 [F2016L01625]
Purpose	Recognises the Queensland Home Warranty Scheme as a statutory compensation scheme and remakes the Farm Management Deposit Regulations
Last day to disallow	13 February 2017
Authorising legislation	A New Tax System (Goods and Services Tax) Act 1999; Banking Act 1959; Income Tax Assessment Act 1936; Income Tax Assessment Act 1997; Taxation Administration Act 1953
Department	Treasury
Scrutiny principle	Standing Order 23(3)(a)

Description of consultation

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or, if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for the regulation states:

Consultation on Schedule 1 to the Regulation was undertaken with affected states and territories. Public consultation was undertaken on Schedule 2 to the Regulation.

While the committee does not usually interpret paragraphs 15J(2)(d) and (e) as requiring a highly detailed description of consultation undertaken, it considers that an overly bare or general description is insufficient to satisfy the requirements of the Legislation Act 2003. In this case, the committee considers that the ES for the regulation, while stating that consultation occurred in relation to the making of the regulation, does not describe the nature of the consultation undertaken (such as, for example, the manner and purpose of the consultation, the parties to the consultation; and the issues raised in, and outcomes of, the consultation).

The committee's expectations in this regard are set out in the guideline on consultation contained in Appendix 1.

The committee draws this matter to the minister's attention.

Access to incorporated documents

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 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.

With reference to the above, the committee notes that new regulation 393-15, inserted by item 2 of the regulation, incorporates the 'Natural Disaster Relief and Recovery Determination Version 2.0 determined by the Minister for Justice on 29 October 2015' (NDRR determination). The committee understands the NDRR determination to be incorporated as at the commencement of the regulation. With reference to the NDRR determination, the ES states:

Schedule 2 to the Regulation updates a reference to the Natural Disaster Relief and Recovery Arrangements (NDRRA) concerning repayment in the event of a natural disaster to refer to the most recent NDRRA 2012 determination, version 2 of 29 October 2015.

However, neither the text of the regulation nor the ES indicates how the NDRR determination can be freely obtained.

While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of where an incorporated document may be accessed fails to satisfy the requirements of the Legislation Act 2003.

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