National Health (IVF Program) Special Arrangement Amendment Instrument 2017 (No 1) [F2017L00957]-Advice only [2017] AUSStaCSDLM 311 (16 August 2017)

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Instrument	National Health (IVF Program) Special Arrangement Amendment Instrument 2017 (No. 1) [F2017L00957]
Purpose	Amends the National Health (IVF Program) Special Arrangement 2015 (PB 60 of 2015) by adding a new pharmaceutical benefit
Authorising legislation	National Health Act 1953
Department	Health
Disallowance	15 sitting days after tabling (tabled Senate 8 August 2017) Notice of motion to disallow currently must be given by 16 October 2017
Scrutiny principle	Standing Order 23(3)(a)

Description of consultation

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or,

if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

With reference to these requirements, the committee notes that the ES for this instrument describes the general process of consultation with the Pharmaceutical Benefits Advisory Committee in relation to matters relevant to the administration

of the Pharmaceutical Benefits Scheme (PBS), including special arrangements. This general process includes consultation with pharmaceutical companies whose products are listed on the PBS.

While the committee does not usually interpret paragraphs 15J(2)(d) and (e) as requiring a highly detailed description of consultation undertaken, it considers that an overly bare or general description is insufficient to satisfy the requirements of the Legislation Act 2003. In this case, the ES refers to a general process of consultation and does not provide information about whether consultation was or was not undertaken specifically in relation to this instrument. In terms of complying with paragraphs 15J(2)(d) and (e) of the Legislation Act 2003, the committee's preferred approach would be for the ES to have explicitly stated that further consultation

for the instrument was considered unnecessary (or inappropriate) due to the nature of the consultation that had already taken place.^[1]

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

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

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[1] The committee notes that it previously commented on similar issues on an advice-only basis. See Delegated legislation monitor 2 of 2017, pp. 21-22.

[2] See Regulations and Ordinances Committee, Guideline on consultation, http://www.aph.gov. au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinances/Guidelines/ consultation.