Part 21 Manual of Standards Instrument 2016 [F2016L00915]-Concluded matters [2017] AUSStaCSDLM 115 (22 March 2017)

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Instrument	Part 21 Manual of Standards Instrument 2016 [F2016L00915]
Purpose	Prescribes standards for classes of light sport aircraft and for articles for use on civil aircraft; and requirements for special certificates of airworthiness and persons carrying out approved design activities for approved design organisations
Last day to disallow	21 November 2016
Authorising legislation	Civil Aviation Safety Regulations 1998
Department	Infrastructure and Regional Development
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 1 of 2017

Access to incorporated documents

The committee commented as follows:

The committee previously received advice from the Minister for Infrastructure and Transport that the Civil Aviation and Safety Authority expected to amend the ES to this instrument to provide a further description of incorporated documents and indicate where they could be obtained. A replacement ES has been registered and received by the committee.

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 (i.e. without cost) 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 1.10 of the instrument incorporates, as in force from time to time, various international airworthiness requirements, certification specifications and standards. However the replacement ES to the instrument states that the 'cost of obtaining a standard is a matter for the manufacturer who elects to use the standard'.

A fundamental principle of the rule of the law is that every person subject to the law should be able to readily and freely access its terms. The issue of access to material incorporated into the law by reference to external documents such as Australian and international standards has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.^[1] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

While the committee notes that the replacement ES has been made in response to previous concerns it raised with respect to access to incorporated documents, the committee remains concerned about this issue, as it appears that the standards can only be obtained for a fee, and the replacement ES does not provide information about whether such standards can otherwise be accessed for free by persons interested in or affected by the instrument.

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

The committee requests the advice of the minister in relation to the above.

Minister's response

The Minister for Infrastructure and Transport advised:

CASA incorporates requirements by reference to reduce the length and complexity of instruments and where there is no value in paraphrasing or reproducing the incorporated material. Examples of documents that CASA instruments incorporate by reference include foreign or privately owned airworthiness standards, standards for non-aviation specific matters
(e.g. standards for standard parts like nuts and bolts) that are administered [by] Australian Standards or other standards bodies, CASA policy documents, documents produced by manufacturers of aircraft and operational documents of particular operators. These standards are selected because they promote the safe conduct of the relevant aviation activities. Wherever possible CASA uses freely available standards.
In some cases, CASA may incorporate a purchasable standard as an alternative to a freely available standard, providing choice. If CASA did not provide that choice, then the purchasable standard would not be able to be used to comply with aviation safety requirements even if a person wished to use it. This is the situation with the standards incorporated into the Part 21 Manual of Standards [F2016L00915].
In other cases, particularly in relation to older aircraft no longer supported by the original manufacturer, there are only standards made available for a fee from the manufacturer...
CASA recognises the importance of the principle of the free availability of legal requirements, including matters such as standards that might be incorporated into law by reference. However, CASA has a limited role in influencing either policy or the law on the issue, particularly in relation to foreign and non-aviation specific standards. For its part, however, CASA will take appropriate steps to ensure that standards are freely available wherever possible, including as an alternative to a purchasable standard in appropriate circumstances.
At the same time, CASA is unable within the scope of its safety mandate under section 9A of the Civil Aviation Act 1988 to exclude relevant standards on the basis that they are not freely available. To do so would create significant costs and disruption to the aviation industry based on
an action that is outside the scope of CASA's functions.

Committee's response

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

In concluding, the committee notes the minister's advice that the only standards that can be used to comply with aviation safety requirements under this instrument are available at a cost; and that CASA will take appropriate steps to ensure that standards are freely available wherever possible, including as an alternative to a purchasable standard.

The committee also notes the minister's advice that CASA is unable within the scope of its safety mandate under section 9A of the Civil Aviation Act 1988 to exclude relevant standards on the basis that they are not freely available; and that to do so would create significant costs and disruption to the aviation industry based on an action that is outside the scope of CASA's functions.

The issue of access to material incorporated into the law by reference to external documents, such as Australian and international standards, has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.^[2] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

The committee remains concerned about the lack of free access to material incorporated into legislation generally, and will continue to monitor this issue.

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[1] Thirty-Ninth Parliament, Report 84, Joint Standing Committee on Delegated Legislation, Access to Australian Standards Adopted in Delegated Legislation (June 2016) http://www. parliament.wa.gov.au/Parliament/commit.nsf/(Report+Lookup+by+Com+ID)/416D0BF968BDB17048257FDB0009BEF9/$file/dg.asa.160616.rpf.084.xx.pdf (accessed 6 February 2017).

[2] Thirty-Ninth Parliament, Report 84, Joint Standing Committee on Delegated Legislation, Access to Australian Standards Adopted in Delegated Legislation (June 2016) http://www. parliament.wa.gov.au/Parliament/commit.nsf/(Report+Lookup+by+Com+ID)/416D0BF968BDB17048257FDB0009BEF9/$file/dg.asa.160616.rpf.084.xx.pdf (accessed 6 February 2017).