Amendment of List of Exempt Native Specimens-Multiple fisheries, March 2017 [F2017L00256]-Concluded matters [2017] AUSStaCSDLM 196 (14 June 2017)

• Chapter 2
• Concluded matters

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Chapter 2

Concluded matters

This chapter sets out matters which have been concluded following the receipt of additional information from ministers or relevant instrument-makers.

Correspondence relating to these matters is included at Appendix 2.

For the purposes of disallowance the sitting of the Senate on 31 March 2017 has been counted as a sitting day.^[1]

Instrument	Aboriginal Land Rights (Northern Territory) Amendment (Leases) Regulations 2017 [F2017L00333]
Purpose	Prescribes the township of Gunyangara in the Northern Territory in relation to the Arnhem Land Aboriginal Land Trust and prescribes a further function to the Executive Director of Township Leasing
Authorising legislation	Aboriginal Land Rights (Northern Territory) Act 1976
Department	Prime Minister and Cabinet
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)
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.

The Aboriginal Land Rights (Northern Territory) Amendment (Leases) Regulations 2017 [F2017L00333] (the regulations) insert new regulation 6AA to the Aboriginal Land Rights (Northern Territory) Regulations 2007, which provides for a parcel of land to be prescribed as a single township in relation to the Arnhem Land Aboriginal Land Trust. With reference to the above, the committee notes that the definition of the parcel of land in new regulation 6AA incorporates Survey Plan S2016/039. However, neither the text of the regulations nor the explanatory statement (ES) expressly states the manner in which Survey Plan S2016/039 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 Minister for Indigenous Affairs advised:

Section 14(1)(b) of the Legislation Act 2003 (Cth) (Legislation Act) provides (relevantly) that if enabling legislation authorises provision to be made in relation to any matter by a legislative instrument, the instrument may, unless the contrary intention appears, make provision in relation to that matter (subject to s 14(2)), by incorporating any matter contained in any other writing existing at the time the instrument commences.
The Regulations and the Explanatory Statement incorporate the extrinsic writing of the Survey Plan. Section 14(2) of the Legislation Act provides that, unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by incorporating any matter contained in other writing as in force or existing from time to time.
Accordingly, the Regulations can only incorporate the Survey Plan as it exists at the time the Regulations commence. Section 14(2) of the Legislation Act precludes the Regulations incorporating the Survey Plan as in force or existing from time to time.
In addition, the Survey Plan as incorporated into the Regulations cannot,
in effect, change. Under s 50(2) of the Licenced Surveyors Act (NT) (Surveyors Act), once a survey plan has been lodged with and approved by the Surveyor-General, that survey plan is to be accepted as correct in
all questions relating to the boundaries delineated in the plan. The Survey Plan was approved by the Surveyor-General on 25 August 2016.
Given the Survey Plan has been lodged and approved, it cannot be changed (although there is limited scope for errors or omissions made
in the Survey Plan to be corrected under s 51(1) of the Surveyors Act).
Any change to the boundaries delineated in the Survey Plan would require the preparation of a new plan, and that new plan could only be incorporated into the Regulations through an amendment to the Regulations.

Committee's response

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

The committee notes that this information would have been useful in the ES.

Access to incorporated documents

The committee previously commented as follows:

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 regulations incorporate Survey Plan S2016/039. However, the ES does not contain a description of this document, or indicate how the document 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.

Minister's response

The Minister for Indigenous Affairs advised:

Paragraph 15J(2)(c) of the Legislation Act requires the Explanatory Statement for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.
The Regulations and the Explanatory Statement provide that the Survey Plan is lodged with the Northern Territory Surveyor-General in Darwin. Once a survey plan has been lodged with the Surveyor-General it becomes freely available to the public and can be obtained from the Northern Territory Land Information System website via the NT Atlas.
To further address the concerns of the Committee, I have approved a replacement Explanatory Statement with the Survey Plan attached, which will be lodged on the Federal Register of Legislation in accordance with the process set out in section 15G(4)(b) of the Legislation Act 2003. I have attached the replacement Explanatory Statement for your reference.

The replacement ES states:

A copy of Survey Plan S2016/039, which prescribes the township of Gunyangara, is provided in Attachment 2. Survey Plan S2016/039 can also be obtained from the Northern Territory Land Information System website via the NT Atlas.

Committee's response

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

The committee also notes the minister's undertaking to register the replacement ES provided to the committee, which addresses the committee's concerns regarding access to incorporated documents.

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^[1] For guidance regarding the interpretation of the expression ‘sitting day’ in section 42 of the Legislation Act 2003, see Odgers' Australian Senate Practice, 14th Edition (2016), Chapter 15, pp 446–447.