Consumer Goods (Babies' Dummies and Dummy Chains) Safety Standard 2017 [F2017L00516], Consumer Goods (Children's Nightwear and Limited Daywear and Paper Patterns for Children's Nightwear) Safety Standard 2017 [F2017L00452], and Extension of the Ban Period for the Interim Ban on Certain Decorative Alcohol Fuelled Devices [F2017L00518]-Response required [2017] AUSStaCSDLM 176 (14 June 2017)

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Instrument	Consumer Goods (Babies’ Dummies and Dummy Chains) Safety Standard 2017 [F2017L00516] Consumer Goods (Children’s Nightwear and Limited Daywear and Paper Patterns for Children’s Nightwear) Safety Standard 2017 [F2017L00452] Extension of the Ban Period for the Interim Ban on Certain Decorative Alcohol Fuelled Devices [F2017L00518]
Purpose	Specifies construction, design, performance and labelling requirements for babies' dummies; Prescribes requirements for the supply of children's nightwear and limited daywear and paper patterns for children's nightwear; and Extends the interim ban on certain decorative alcohol fuelled devices by a period of 30 days from 16 May 2017
Authorising legislation	Competition and Consumer Act 2010
Department	Treasury
Disallowance	15 sitting days after tabling [F2017L00452] (tabled Senate 9 May 2017) Notice of motion to disallow must be given by 16 August 2017 [F2017L00516]; [F2017L00518] (tabled Senate 13 June 2017) Notice of motion to disallow must be given by 5 September 2017
Scrutiny principle	Standing Order 23(3)(a)

Background

Subsection 44(1) of the Legislation Act 2003 (LA) provides:

Section 42 [disallowance of legislative instruments] does not apply in relation to a legislative instrument, or a provision of a legislative instrument if the enabling legislation for the instrument (not being the Corporations Act 2001):
(a) facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States; and
(b) authorises the instrument to be made by the body or for the purposes of the body or scheme;
unless the instrument is a regulation, or the enabling legislation or some other Act has the effect that the instrument is disallowable.

The explanatory memorandum to the Legislative Instruments Act 2003^[1] explains:

Subclause 44(1) provides that instruments made under enabling legislation that facilitates an intergovernmental body or scheme involving the Commonwealth and one or more States are not subject to the disallowance provisions of this Act, unless the enabling legislation has the effect that the instrument is disallowable. This is because there is an argument that the Commonwealth Parliament should not, as part of a legislative instruments regime, unilaterally disallow instruments that are part of a multilateral scheme. However, the Parliament, in creating the relevant enabling legislation, would be in a position to determine that such instruments should be disallowable.

In 2010 the Trade Practices Act 1974 was amended to be named the Competition and Consumer Act 2010 (CCA) and to establish the Australian Consumer Law (ACL).

The amendments were made pursuant to the agreements of the Council of Australian Governments (COAG) made on July and October 2008, to create a single national consumer law for Australia, including a national product safety law, and the Intergovernmental Agreement for the Australian Consumer Law, signed by COAG

in July 2009.

The ACL therefore appears to facilitate the establishment or operation of an intergovernmental scheme involving the Commonwealth and one or more States.

Sections 104 and 105 of the ACL authorise safety standards to be made; and section 109 authorises interim bans to be made for the purposes of the ACL scheme. Section 131E of the CCA provides that instruments made under these sections of the ACL are to be made by legislative instrument. Neither the ACL, CCA or another Act appear to otherwise have the effect that legislative instruments made under these sections are disallowable. Therefore, it appears that by virtue of paragraph 44(1)(a) of the LA such legislative instruments would be exempt from disallowance.

Classification of legislative instruments as subject to disallowance

The Consumer Goods (Babies’ Dummies and Dummy Chains) Safety Standard 2017 [F2017L00516] (the dummy standard) is made under section 104 of the ACL.

The purpose of the dummy standard is to ensure babies’ dummies and dummy chains have safety features that reduce the risk of injury.

The Consumer Goods (Children’s Nightwear and Limited Daywear and Paper Patterns for Children’s Nightwear) Safety Standard 2017 [F2017L00452] (the nightwear standard) is made under section 105 of the ACL. The purpose of the nightwear standard is to reduce the risk of child death and injury associated with nightwear catching fire.

The Extension of the Ban Period for the Interim Ban on Certain Decorative Alcohol Fuelled Devices [F2017L00518] (the interim devices ban) is made under section 109 of the ACL. The purpose of the interim devices ban is to minimise the risk of injury to persons due to uncontrolled fire while refuelling, lighting or being in close proximity to an alcohol fuelled device.

As set out above, the dummy standard and the nightwear standard are made under sections 104 and 105 of the ACL; and the interim device ban is made under section 109. Therefore, as these standards appear to facilitate the operation of an intergovernmental scheme, are not regulations and do not appear to be disallowable under the CCA, ACL or another Act, the committee understands that these instruments may be exempt from disallowance in accordance with subsection 44(1) of the LA.

However, the ESs to the dummy standard, the nightwear standard and the interim devices ban state the following in relation to each instrument:

This legislative instrument is subject to disallowance under Chapter 3, Part 2 of the Legislation Act 2003.

It is therefore unclear to the committee whether these standards have been properly described as subject to disallowance.

The committee is also interested to understand more about the apparent inconsistent approach to the classification of instruments made under the ACL.

For example, the committee notes that the Australian Consumer Law (Free Range Egg Labelling) Information Standard 2017 [F2017L00474] (the egg standard) also seems to be covered by the operation of section 44(1) of the LA, but it is classified as exempt from disallowance (and thereby removed from the effective oversight of the Parliament).^[2]

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

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[1] On 5 March 2016 the Legislative Instruments Act 2003 became the Legislation Act 2003 due to amendments made by the Acts and Instruments (Framework Reform) Act 2015.

[2] The egg standard is made under section 134 of the ACL which authorises information standards to be made for the purposes of the ACL scheme. As the egg standard is not a regulation and does not appear to be disallowable under the CCA, ACL or another Act, it appears to be exempt from disallowance.