Declaration of Quality Assurance Activity under section 124X of the Health Insurance Act 1973-QAA 10/2016 [F2016L01601], Declaration of Quality Assurance Activity under section 124X of the Health Insurance Act 1973-QAA 11/2016 [F2016L01591] and Declaration of Quality Assurance Activity under section 124X of the Health Insurance Act 1973-QAA 12/2016 [F2016L01592]-Concluded matters [2016] AUSStaCSDLM 376 (30 November 2016)

Instrument	Defence Force Discipline Appeals Regulation 2016 [F2016L01452]
Purpose	Repeals and replaces the Defence Force Discipline Appeals Regulations 1957 that sunsetted on 1 October 2016
Last day to disallow	1 December 2016
Authorising legislation	Defence Force Discipline Appeals Act 1955
Department	Attorney-General's
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 8 of 2016

Unclear basis for determining fees

The committee commented as follows:

Section 17 of the regulation sets fees for the Registrar of the Defence Force Discipline Appeal Tribunal to supply copies of documents relating to an appeal to an appellant.

If the document is under 50 pages the fee is $12, and if the document is over 50 pages the fee is $12 plus 10 cents per page in excess of 50 pages.

The committee's usual expectation in cases where an instrument of delegated legislation carries financial implications via the imposition of a charge, fee, levy, scale or rate of costs or payment is that the relevant ES makes clear the specific basis on which an individual imposition or change has been calculated. While the committee notes that the fees described above reflect existing fees, the ES does not state the basis on which the fees have been calculated.

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

Minister's response

The Attorney-General advised:

The Regulation was remade in substantially the same form in circumstances where it was otherwise due to sunset on 1 October 2016 and the regulations were, and continue to, work efficiently and effectively. As such, the Regulation updated phrasing and references to conform to current drafting practices and otherwise preserved the existing arrangement and procedures of the Tribunal...
The Tribunal and the Department of Defence were consulted throughout the process of re-making the Regulation and raised no issues with the fee structure or amounts in section 17. As noted in Monitor 8, these fees reflect those that existed in the previous regulations and have remained the same since 1985. The Tribunal has confirmed the fee amounts remain appropriate and justified and additionally advised that there are very few, if any, occasions where the fee has been charged.
I also draw to your attention to the consistency of these fees with the prescribed fees payable under the Defence Force Discipline Act 1982
(see section 195) and the Defence Force Discipline Regulations 1985
(see section 46) for the supply of a copy of the record of proceedings of
a trial. Given that the Tribunal is empowered to hear and determine appeals by persons convicted or acquitted of relevant service offences by a court martial or a Defence Force Magistrate, under the Defence Force Discipline Act and Regulations, it is appropriate that the same fees apply for the similar circumstances in relation to the supply of copies of documents.
For these reasons, I am of the view that the fee amounts for supplying copies of documents in section 17 of the Regulation continue to be appropriate and justified. I trust that this information will assist the Committee in its consideration of the Regulation.

Committee response

The committee thanks the Attorney-General for his response and has concluded its examination of the instrument.

In concluding this matter, the committee notes the Attorney-General's advice that no issues with the fee structure were raised during the consultation process prior to remaking this regulation, and that there have been few, if any, occasions where the fee was charged.

However, the committee reiterates its expectations that where delegated legislation carries financial implications via the imposition of a fee, the relevant ES should make clear the specific basis on which an individual imposition or change has been calculated. While the committee notes the Attorney-General's advice that the fees in the regulation are consistent with the fees payable under the overarching Act and regulations, the response does not strictly state the method by which the fees have been calculated, so as to demonstrate that the fees reflect recovery of reasonable costs for the supply of copies of documents.