Building and Construction Industry (Improving Productivity) (Federal Safety Officers) General Directions 2017 [F2017L00655]-Concluded matters [2017] AUSStaCSDLM 321 (16 August 2017)

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Instrument	Building and Construction Industry (Improving Productivity) (Federal Safety Officers) General Directions 2017 [F2017L00655]
Purpose	Directs Federal Safety Officers how to conduct themselves when exercising powers and performing functions under the Building and Construction Industry (Improving Productivity) Act 2016
Authorising legislation	Building and Construction Industry (Improving Productivity) Act 2016
Department	Employment
Disallowance	15 sitting days after tabling (tabled Senate 14 June 2017) The time to give a notice of motion to disallow expired on 6 September 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 8 of 2017

The committee previously commented on two issues 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. However, 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 4 of the instrument incorporates the Federal Safety Officer Code of Conduct (FSO Code of Conduct), dated 1 January 2015, issued by the Federal Safety Commissioner.

Pursuant to section 14 of the Legislation Act 2003, as the FSO Code of Conduct is not a Commonwealth Act or disallowable instrument, it may only be incorporated as in force at a particular time, unless authorising or other legislation alters the operation of section 14. The committee is not aware of any legislation that alters the operation of section 14 in relation to this instrument and therefore understands the FSO Code of Conduct to be incorporated as in force at the commencement of the instrument. However, neither the text of the instrument nor the ES expressly states that the FSO Code of Conduct is incorporated as in force at the commencement of the instrument.

The committee expects instruments (and ideally their accompanying ESs) to clearly state the manner in which documents are incorporated. 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 of documents published on the committee's website.^[1]

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

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 instrument incorporates the FSO Code of Conduct. However, neither the instrument nor the ES provides a description of this document or indicates where it can be freely accessed.

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

Minister's response

The Minister for Employment advised:

The General Directions are made by the Federal Safety Commissioner under subsection 68(5) of the Building and Construction Industry (Improving Productivity) Act 2016 (the BCI Act). The General Directions direct Federal Safety Officers on how to conduct themselves when exercising powers and performing functions under the BCI Act.
In accordance with section 14 of the Legislation Act 2003, the FSO Code of Conduct is incorporated into the General Directions as in force or existing at the time when the General Directions commenced. However, the Committee notes that neither the text of the General Directions nor the explanatory statement expressly states that this is the manner in which the FSO Code of Conduct is incorporated into the General Directions.
The Committee also notes that neither the General Directions nor the explanatory statement provides a description of the FSO Code of Conduct or indicates where it can be freely accessed. Section 4 of the General Directions defines 'FSO Code of Conduct' to mean 'the Federal Safety Officer Code of Conduct, dated 1 January 2015, issued by the Federal Safety Commissioner'. The FSO Code of Conduct is made available to Federal Safety Officers during an induction at the commencement of their engagement and is also available on the Federal Safety Commissioner's website (www.fsc.gov.au/sites/FSC/Resources/AZ/Documents/Federal_ Safety_Officer_Code_of_Conduct.pdf).
To address the Committee's expectations regarding the incorporation of material in legislative instruments, the Federal Safety Commissioner will issue a replacement explanatory statement to the General Directions clarifying the manner in which the FSO Code of Conduct is incorporated into the General Directions and detailing where the document can be freely accessed.
Committee's response

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

The committee notes the minister's undertaking to issue a replacement ES clarifying the manner in which the FSO Code of Conduct is incorporated into the General Directions and detailing where the document can be freely accessed.

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[1] 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.

[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.