Seacare Authority Code of Practice Approval 2017 [F2017L00326]-Further response required [2017] AUSStaCSDLM 186 (14 June 2017)

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Instrument	Legal Services Directions 2017 [F2017L00369]
Purpose	Repeals and remakes Legal Services Directions 2005 [F2006L00320] which sunsetted on 1 April 2017
Authorising legislation	Judiciary Act 1903
Department	Attorney-General's
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) and (d)
Previously reported in	Delegated legislation monitor 5 of 2017

Manner of incorporation

The committee previously commented as follows:

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 sections 1 and 3 of Appendix F to the directions incorporate the Legal Services Multi-use List (LSMUL). However, neither the text of the directions nor the ES expressly states the manner in which the LSMUL is 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.

Minister's response

The Attorney-General advised:

Paragraphs 1 and 3 of Appendix F to the 2017 Directions incorporate LSMUL. The Committee has commented that neither the text of the 2017 Directions nor the Explanatory Statement expressly state the manner in which the LSMUL is incorporated into the 2017 Directions.
The 2017 Directions incorporate the LSMUL as in force from time to time.

Committee's response

The committee thanks the Attorney-General for his response.

The committee notes the Attorney-General's advice that the LMSUL is incorporated as in force from time. However, pursuant to section 14 of the Legislation Act 2003 the committee understands that, as the LMSUL is not a Commonwealth disallowable legislative instrument, it may only be incorporated as in force at a particular time, unless authorising or other legislation alters the operation of section 14 of the Legislation Act 2003.

The committee requests the further advice of the Attorney-General in relation to the above.

The committee previously commented as follows:

Scrutiny principle 23(3)(d) of the committee’s terms of reference requires the committee to seek to ensure that an instrument does not contain matter more appropriate for parliamentary enactment. In accordance with this principle, the committee has had a longstanding interest in scrutinising whether matters are being appropriately dealt with as primary or delegated legislation. In this regard, the committee notes the following guidance from the Legislation Handbook:

While it is not possible or desirable to provide a prescriptive list of matters suitable for inclusion in primary legislation and matters suitable for inclusion in subordinate legislation, the following are examples of matters generally implemented only through Acts of Parliament...provisions imposing obligations on individuals or organisations to...desist from activities (e.g. to prohibit an activity and impose sanctions for engaging in an activity).

With reference to the above, the committee notes that paragraph 14 in Part 3 of Schedule 1 and section 5 of Appendix G of the directions enables the

Attorney-General to impose sanctions for non-compliance with the directions. A note to paragraph 14 in Part 3 of Schedule 1 of the directions provides:

Examples demonstrating the range of sanctions and the manner in which OLSC [The Office of Legal Services Commissioner] approaches allegations of non-compliance with the Directions are set out in material on compliance published by OLSC.

However, the committee notes that this guidance material does not appear to be available on the OLSC website and the ES provides no further information in relation to the range of sanctions that may be imposed by the Attorney-General for

non-compliance with the directions.

With respect to section 5 of Appendix G, the ES to the Directions states:

This provision ensures that the Attorney-General may continue to impose sanctions for non-compliance with the 2005 Directions after those Directions are repealed.

However, neither the directions nor the ES appear to:

• set any limitations or provide any guidance as to what sanctions could be imposed by the Attorney-General for non-compliance; nor

• justify the need for the Attorney-General to be granted such broadly defined sanction powers; nor

• explain the reasons for enabling the Attorney-General to impose sanctions for non-compliance with the Directions in delegated as opposed to primary legislation.

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

Minister's response

The Attorney-General advised:

Paragraph 14 of Part 3 of Schedule 1 of the 2017 Directions states, '[t]he Attorney-General may impose sanctions for non-compliance with the Directions.' The note to this paragraph states, '[e]xamples demonstrating the range of sanctions and the manner in which OLSC approaches allegations of non-compliance with the Directions are set out in material on compliance published by OLSC.'
The Committee has commented that neither the 2017 Directions nor the Explanatory Statement set any limitations or provide any guidance as to what sanctions could be imposed, justification of the need for such a broadly defined power, and the reasons for this power to be in the 2017 Directions rather than in primary legislation.
Section 55ZG of the Judiciary Act 1903 states, '[c]ompliance with a Legal Services Direction is not enforceable except by, or on the application of, the Attorney-General.' Compliance with the 2017 Directions (per paragraph 14) derives its legislative basis from section 55ZG of the Judiciary Act 1903.
The OLSC website contains guidance material regarding its approach
to compliance with the 2017 Directions in a document entitled the 'Compliance Framework'. It is available at https://www.ag.gov.au/ LegalSystem/LegalServicesCoordination/Documents/OLSC%20-20 Compliance%20Framework.pdf

Committee's response

The committee thanks the Attorney-General for his response.

The committee acknowledges the Attorney-General's advice that compliance with the directions derives its legislative basis from section 55ZG of Judiciary Act 1903.

The committee also acknowledges that the note to paragraph 14 of Part 3 of Schedule 1 of the directions, which provides that the Attorney-General may impose sanctions for non-compliance with the Directions, states:

Examples demonstrating the range of sanctions and the manner in which OLSC approaches allegations of non-compliance with the Directions are set out in material on compliance published by OLSC.

However, the committee notes that the guidance material referred to by the Attorney-General does not provide information about the range of sanctions that may be imposed.

The committee therefore remains concerned that neither the Compliance Framework nor the Attorney-General's response:

• provides guidance as to what sanctions could be imposed by the Attorney-General for non-compliance; or

• justifies the need for the Attorney-General to be granted such broadly defined sanction powers.

The committee requests the further advice of the Attorney-General in relation to the above.