Seacare Authority Code of Practice Approval 2017 [F2017L00326]-Response required [2017] AUSStaCSDLM 152 (5 October 2017)

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Instrument	Seacare Authority Code of Practice Approval 2017 [F2017L00326]
Purpose	Provides guidance on ways to meet occupational health and safety standards and manage commonly understood hazards and control measures for managing health and safety risks at work on vessels
Authorising legislation	Occupational Health and Safety (Maritime Industry) Act 1993
Department	Employment
Disallowance	15 sitting days after tabling (tabled Senate 9 May 2017) Notice of motion to disallow must be given by 16 August 2017
Scrutiny principle	Standing Order 23(3)(a)

Description of purpose and operation of the instrument

Paragraph 15J(2)(b) of the Legislation Act 2003 requires the ES for a legislative instrument to explain the purpose and operation of the instrument.

The Seacare Authority Code of Practice Approval 2017 [F2017L00326] (the code) remakes the Seacare Authority Code of Practice 1/2000 (the 2000 code). The ES to the code explains that the remaking of the 2000 code is required due to the sunsetting provisions of the Legislation Act 2003.

In relation to the purpose and operation of the code, the ES explains that:

The Code provides guidance on ways to meet occupational health and safety standards on vessels and to manage commonly understood hazards and control measures for managing health and safety risks at work on vessel.

However, the ES does not provide an item-by-item description of the provisions of the code. In the absence of an item-by-item description of the provisions of an instrument the committee may not be able to to effectively scrutinise an instrument with reference to its scrutiny principles. Further, an ES that does not include an

item-by-item description may fail to meet the requirements in section 15J of the Legislation Act 2003 (as discussed below in relation to access to incorporated documents). However, the ES states:

The Code was first approved by the Minister for Employment, Workplace Relations and Small Business on 10 May 2000. The Code is due to sunset on 1 April 2017 under section 51 of the Legislation Act 2003. The Code has been under review by a working group formed by the Seacare Authority. The Chairperson of the Seacare Authority consulted and received the unanimous support of the working group members to request that the Code be remade to allow for that review to be completed...The content of the Code is unchanged and the approval is limited to a two year period while updated guidance for industry participants is prepared, reflecting developments in work health and safety.^[1]

The above statement appears to provide that the code makes no changes, additions or deletions to the 2000 code and that it will be in existence for a maximum of 2 years. Therefore, the committee considers that in this case this definitive description that no changes have been made to the 2000 code, may provide a sufficient basis for scrutiny of the code, notwithstanding the absence of an item-by-item description of the provisions of the code.

The committee draws to the attention of ministers and instrument-makers more generally, that while in some cases a comprehensive description of the changes to a remade instrument may be sufficent, the committee's preference is that ESs also include an item-by-item description of all the provisions of the instrument, even in cases where the instrument is being remade due to the sunsetting provisions of the Legislation Act 2003.

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.

The code incorporates the Australian OffShore Support Vessel Code of Safe Working Practice (the AOSC code) and the Code of Safe Working Practice for Australian Seafarers (the COSW code). With reference to the above, the committee notes that the code sets out the full text of both the AOSC and COSW codes which in turn incorporate various Australian and international standards. However, neither the text of the code nor the ES expressly states the manner in which the Australian and international standards 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 code incorporates various Australian and international standards. However, the ES does not contain a description of these documents, nor indicate how the documents may be obtained.

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.

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[1] The ES explains that the working group is made up of representatives from the Australian Maritime Safety Authority and employee and employer representatives (Maritime Industry Australia Ltd, the Australian Maritime Officers Union, the Australian Institute of Marine and Power Engineers and the Maritime Union of Australia).