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Australian Senate Standing Committee for the Scrutiny of Delegated Legislation - Monitor |
Southern Squid Jig Fishery Total Allowable Effort Determination 2015 [F2015L01945] |
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Purpose
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Determines the total allowable effort in the Southern Squid Jig Fishery for
the 2016 fishing year
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Last day to disallow
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11 May 2016
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Authorising legislation
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Fisheries Management Act 1991; Southern Squid Jig Fishery Management
Plan 2005
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Department
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Agriculture and Water Resources
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Scrutiny principle
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Standing Order 23(3)(a)
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Previously reported in
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Delegated legislation monitor No. 1 of 2016
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Incorporation of extrinsic material
The committee commented as follows:
Section 14 of the Legislative Instruments Act 2003 allows for the incorporation of both legislative and non-legislative extrinsic material into instruments either as, respectively, in force from time to time or as in force at a particular date (subject to any provisions in the authorising legislation which may alter the operation of section 14).
With reference to the above, the committee notes that section 4 of the determination provides: '[t]erms used in this Determination that are defined for the purposes of the Southern Squid Jig Fishery Management Plan 2005 have the same meanings in this Determination as they have in that Plan'. However, neither the text of the instrument nor the ES expressly state the manner in which the Southern Squid Management Plan 2005 is incorporated.
The committee acknowledges that section 10 of the Acts Interpretation Act 1901 (as applied by section 13(1)(a) of the Legislative Instruments Act 2003) has the effect that reference to external documents which are Commonwealth disallowable instruments (such as Southern Squid Jig Fishery Management Plan 2005) can be taken to be references to versions of those instruments as in force from time to time. However, the committee's usual expectation where an instrument incorporates extrinsic material by reference is that the manner of incorporation is clearly specified in the instrument and, ideally, in the ES. 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 Agriculture and Water Resources advised:
Consistent with section 10 of the Acts Interpretation Act 1901 and subsection 13(1) of the Legislative Instruments Act 2003, the intention is for references to the Southern Squid Jig Fishery Management Plan 2005 to be read as the 'Southern Squid Jig Fishery Management Plan 2005 as in force from time to time'. Therefore, should the definitions in the Management Plan change, the updated definitions would also apply to the Determination.
I am aware that the Committee places considerable reliance on explanatory statements to understand legislative instruments and the incorporation of extrinsic materials. I have requested that, where possible, the department include additional information in explanatory statements addressing the manner in which extrinsic material has been incorporated.
Committee's response
The committee thanks the minister for his response and has concluded its examination of the instrument.
The committee also thanks the minister for his advice that for future instruments the department will address the manner in which extrinsic material has been incorporated.
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URL: http://www.austlii.edu.au/au/other/cth/AUSStaCSDLM/2016/92.html