Competition and Consumer (Industry Codes-Horticulture) Regulations 2017 [F2017L00302]-Response required [2017] AUSStaCSDLM 147 (5 October 2017)

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Instrument	Competition and Consumer (Industry Codes—Horticulture) Regulations 2017 [F2017L00302]
Purpose	Prescribes a mandatory Horticulture Code of Conduct which regulates trade in horticulture produce between growers and traders and provides a dispute resolution procedure for disputes arising under the code or a horticulture produce agreement
Authorising legislation	Competition and Consumer Act 2010
Department	Prime Minister and Cabinet
Disallowance	15 sitting days after tabling (tabled Senate 28 March 2017) Notice of motion to disallow must be given by 9 August 2017
Scrutiny principle	Standing Order 23(3)(a)

Sub-delegation/authorisation

Clause 39 of the Competition and Consumer (Industry Codes—Horticulture) Regulations 2017 [F2017L00302] (the horticulture code) provides for the Minister for Agriculture and Water Resources (the minister) to appoint a mediation adviser who must compile and maintain a list of persons who are to be mediators for the purposes of resolving disputes arising under the horticulture code or hotriculture produce agreements.

Clause 40 of the horticulture code provides for the mediation adviser to appoint a mediator to a dispute who then decides how the mediation is to be carried out.

Neither the horticulture code nor the ES appears to limit in any way who the minister may appoint as a mediation adviser, or who the mediation adviser may appoint as a mediator.

The committee is concerned that the horticulture code contains no requirement that the minister be satsified that a person appointed to the role of mediaton adviser is appropriately trained or qualified for the role, nor that a mediation adviser be satisfied that a person appointed to the role of mediator be appropriately trained or qualified for the role.

The ES provides no justification as to why it is appropriate for there to be no apparent limit on the category of people who can be appointed as a mediation adviser or mediator under the horticulture code.

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

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Other documents may only be incorporated as in force at the commencement of the legislative instrument, unless authorising or other legislation alters the operation of section 14.

With reference to the above, the committee notes that subclause 16(i) of the horticulture code incorporates the FreshSpecs Produce Specifications which are defined in clause 5 as ‘product specifications published by Fresh Markets Australia’. However, neither the text of the horticulture code nor the ES states the manner in which the FreshSpecs Produce Specifications are incorporated.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated (that is, either as in force from time to time or as in force at the commencement of the legislative instrument). This enables persons interested in or affected by the instrument to understand its operation without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

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.

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 (i.e. without cost) 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 the horticulture code incorporates the FreshSpecs Produce Specifications. However, the ES does not contain a description of this document, or indicate how it can be obtained.

The committee notes that clause 5 of the horticulture code states that the FreshSpecs Produce Specifications are published by Fresh Markets Australia. However, while the committee notes that the FreshSpecs Produce Secifications are available for free online,^[1] neither the horticulture code nor the ES states exactly where they can be accessed. Where an incorporated document is available for free online, the committee considers that a best-practice approach is for the ES to an instrument to provide details of the website where the document can be accessed.

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

The committee draws the above to the minister's attention.

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^[1] The Australian Chamber of Fruit & Vegetable Industries Limited, Fresh Markets Australia, FreshSpecs Produce Specifications, http://freshmarkets.com.au/fresh-specs/ (accessed 5 May 2017).