Banking (prudential standard) determination No 2 of 2017-Prudential Standard APS 001-Definitions [F2017L00661]-Response required [2017] AUSStaCSDLM 229 (8 September 2017)

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Instrument	Banking (prudential standard) determination No. 2 of 2017 - Prudential Standard APS 001 – Definitions [F2017L00661]
Purpose	Incorporates definitions used in prudential standards relating to authorised deposit-taking institutions
Authorising legislation	Banking Act 1959
Department	Treasury
Disallowance	15 sitting days after tabling (tabled Senate 19 June 2017) Notice of motion to disallow currently must be given by 11 September 2017
Scrutiny principle	Standing Order 23(3)(a)

Access to incorporated documents

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 definitions of 'Limited assurance' and 'Reasonable assurance' in section 5 of the instrument incorporate the Framework for Assurance Engagements issued by the Auditing and Assurance Standards Board (AUASB) from time to time. However, neither the instrument nor the ES provides a description of this document or indicates where it can be freely accessed.^[1]

While the committee does not interpret paragraph 15J(2)(c) as requiring a detailed description of an incorporated document and how it may be obtained, it considers that an ES that does not contain any description of an incorporated document fails

to satisfy the requirements of the Legislation Act 2003. However, in this case the committee notes that the Framework for Assurance Engagements issued by the AUASB is available for free online.^[2] 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 of documents published on the committee's website.^[3]

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

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[1] The committee notes that it has previously commented on a similar issue. See Delegated legislation monitor 10 of 2016, Banking, Insurance and Life Insurance (prudential standard) determination No. 4 of 2016 – Prudential Standard 3PS 310 - Audit and Related Matters [F2016L01437] and Banking, Insurance and Life Insurance (prudential standard) determination No. 8 of 2016 – Prudential Standard CPS 510 Governance [F2016L01432], pp 29-32.

[2] See Auditing and Assurance Standards Board, Framework for Assurance Engagements, http://www.auasb.gov.au/Pronouncements/Framework-for-Assurance-engagements.aspx (accessed 21 July 2017).

[3] See Regulations and Ordinances Committee, Guideline on incorporation of documents, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_ Ordinances/Guidelines/Guideline_on_incorporation_of_documents.