Greenhouse and Energy Minimum Standards (Double-capped Fluorescent Lamps) Determination 2017 [F2017L00652] and Greenhouse and Energy Minimum Standards (Self-ballasted Compact Fluorescent Lamps for General Lighting Services) Determination 2017 [F2017L00653]-Advice only [2017] AUSStaCSDLM 251 (8 September 2017)

---

Instrument	Greenhouse and Energy Minimum Standards (Double-capped Fluorescent Lamps) Determination 2017 [F2017L00652] Greenhouse and Energy Minimum Standards (Self-ballasted Compact Fluorescent Lamps for General Lighting Services) Determination 2017 [F2017L00653]
Purpose	Establish minimum energy efficiency, labelling and product performance requirements, and associated requirements for conducting tests, for double-capped fluorescent lamps and self-ballasted compact fluorescent lamps
Authorising legislation	Greenhouse and Energy Minimum Standards Act 2012
Department	Environment and Energy
Disallowance	15 sitting days after tabling (tabled Senate 13 June 2017) Notice of motion to disallow currently must be given by 5 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 in section 3 of the instruments incorporate various Australian/New Zealand Standards as they existed on the day the instruments came into force. The ESs to the instruments state:

Selected definitions and text are extracted in the Determination from the relevant Australian or Australian/New Zealand Standards. This is done with the intention of making it possible to determine if a product is covered (or excluded) by the Determination without having to refer to the relevant standard. The standards referenced in the Determination are available to purchase from Standards Australia, through its exclusive licensee SAI Global. The Australian Government envisages that the parties most likely to wish to access the referenced documents are members of industry whose products are covered by the Determination. Those parties can readily purchase the standards online at the SAI Global website. If a member of the regulated community or the general public was interested in accessing the standards referenced in the Determination without purchasing them, they could access them at the National and State Libraries, and a range of public libraries, universities, and other education and training providers.

The committee acknowledges the usefulness of including extracts from the relevant Standards in the instruments to allow users to determine if a product is covered (or excluded) without having to refer to the relevant standard. However, it remains concerned that the incorporated standards may not be available at the sources identified in the ES. In this regard, the committee understands that National and State Libraries' negotiations with SAI Global for continued community access to Australian Standards have been unsuccessful and that online access to Australian Standards may no longer available at these libraries. The committee is also concerned that, of these libraries, only the National Library of Australia may hold a comprehensive collection of Australian Standards in hardcopy, and that even this collection may not be complete.

A fundamental principle of the rule of the law is that every person subject to the law should be able to readily and freely access its terms. The issue of access to material incorporated into the law by reference to external documents, such as Australian and international standards, has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently, the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.^[1] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.

The committee's expectations in this regard are set out in the guideline on incorporation of documents published on the committee's website.^[2]

The committee will continue to monitor this issue.

The committee draws the above to the minister's attention.

Drafting

With respect to Greenhouse and Energy Minimum Standards (Self-ballasted Compact Fluorescent Lamps for General Lighting Services) Determination 2017 [F2017L00653], the committee notes that the definition of AS/NZS 4847.1:2010 in section 3 of the instrument states:

AS/NZS 4847.1:2010 means and , as it existed on the day this Determination came into force.

The committee understands that this incomplete definition was included in error and that the definition should read as follows:

AS/NZS 4847.1:2010 means Australian/New Zealand Standard AS/NZ 4847.1:2010 – Self-ballasted lamps for general lighting services Test methods - Energy performance, as it existed on the day this Determination came into force.

The committee notes that instruments and their accompanying ESs should be drafted with sufficient care to avoid potential confusion for anticipated users.

The committee draws the above to the minister's attention.

---

^[1] Thirty-Ninth Parliament, Report 84, Joint Standing Committee on Delegated Legislation, Access to Australian Standards Adopted in Delegated Legislation (June 2016) http://www.parliament. wa.gov.au/parliament/commit.nsf/all/6BCDA79F24A4225648257E3C001DB33F?opendocument&tab=tab3 (accessed 6 June 2017).

^[2] 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.