Inspector of Transport Security Regulations 2017 [F2017L00510]-Further response required [2017] AUSStaCSDLM 307 (16 August 2017)

• Further response required

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Further response required

The committee requests further explanation or information from relevant ministers or instrument-makers with respect to the following concerns.

Correspondence relating to these matters is published on the committee's website.^[1]

Instrument	Inspector of Transport Security Regulations 2017 [F2017L00510]
Purpose	Identifies the international obligations that the Inspector of Transport Security must comply with; sets the form of the identity card that must be issued to persons exercising the Inspector's delegated search powers; prescribes the criteria that a person must satisfy to be delegated powers under the Inspector Transport Security Act 2006; and details the fee for attendance at a coronial inquiry and the due date for payment
Authorising legislation	Inspector of Transport Security Act 2006
Department	Infrastructure and Regional Development
Disallowance	15 sitting days after tabling (tabled Senate 11 May 2017) The time to give a notice of motion to disallow expired on 4 September 2017 Notice given on 4 September 2017[2] Motion currently must be resolved by 16 November 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitors 6 and 10 of 2017

The committee previously commented on two matters as follows:

Manner of incorporation

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 section 7 of the Inspector of Transport Security Regulations 2017 [F2017L00510] (the regulation) appears to incorporate paragraphs 5.12 and 6.2 of Annex 13 to the Convention on International Civil Aviation (Annex 13). However, neither the regulation nor the ES state the manner in which Annex 13 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 at a particular time). 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 requested the advice of the minister in relation to the above.

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 note to section 7 of the regulation states:

The Convention is in Australian Treaty Series 1957 No. 5 ([1957] ATS 5) and could in 2017 be viewed in the Australian Treaties Library on the AustLII website (http://www.austlii.edu.au).

However, the committee notes that the text of Annex 13 does not appear to be available at this location and the ES does not contain any further information about where Annex 13 can be freely accessed.

The committee's expectations in this regard are set out in the guideline on incorporation contained in Appendix 1.

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

Minister's first response

The Minister for Infrastructure and Transport advised:

I have sought advice from the Department of Infrastructure and Regional Development in relation to the Committee's concerns regarding incorporation of and access to Annex 13 of The Convention of International Civil Aviation and an amendment to the statement regarding consultation.
The Department has advised that the Explanatory Statement will be replaced to address these issues.
Committee's first response

The committee thanked the minister for his response.

The committee also notes the minister's undertaking to replace the ES to address the committee's concerns. However, the committee remains concerned that in the interim period before the ES is replaced, interested persons will not know the manner in which Annex 13 is incorporated; nor where it can be freely accessed.

The committee therefore requests that the minister provide advice to the committee as to the manner in which Annex 13 is incorporated; and where it can be obtained

(in accordance with paragraph 15J(2)(c) of the Legislation Act 2003).

The committee requested the further advice of the minister in relation to the above.

Minister's second response

The Minister for Infrastructure and Transport advised:

I have sought advice from the Department of Infrastructure and Regional Development in relation to the Committee's concerns regarding incorporation of and access to Annex 13 of The Convention of International Civil Aviation.
The Department has advised that the Replacement Explanatory Statement to address these issues was registered on the Federal Register of Legislation on 23 August 2017.
Relevant excerpt from the replacement ES:
Section 81 of the Inspector of Transport Security Act 2006 incorporates provisions of the Annex as in force from time to time. This section envisages that the regulations will simply identify Australia’s obligations under international agreements, and not indicate whether the agreements (or obligations under them) are as in force from time to time.
This section notes that The Convention can be located in the Australian Treaty series 1957 No. 5 ([1957] ATS 5) and could in 2017 be viewed in
the Australian Treaties Library on the AustLII website (www.austlii.edu.au). This only provides context to The Convention, which contains provisions for adoption of annexes. The individual annexes can be accessed at a cost from the International Civil Aviation Organisation Online Store or by a government agency that has access as an ICAO signatory.
Committee's response

The committee thanks the minister for his response.

The committee is satisfied with the explanation of the manner of incorporation of Annex 13 to The Convention of International Civil Aviation in the replacement ES.

However, the committee notes that the replacement ES does not provide information on where the document may be accessed for free. As noted above, generally the committee will be concerned where incorporated documents are not publicly and freely available, because a fundamental principle of the rule of 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 has been one of ongoing concern to this committee and other Australian parliamentary scrutiny committees.

The committee's expectation, at a minimum, is that consideration be given by the department to any means by which the document is or may be made available to interested or affected persons. This may be, for example, by noting availability through specific public libraries, or by making the document available for viewing upon request to the department. Consideration of this principle and details of

any means of access identified or established should be reflected in the ES to the instrument.

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

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[1] See www.aph.gov.au/regords_monitor.

[2] See Regulations and Ordinances Committee, Disallowance Alert 2017, http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinances/Alerts.