CASA EX106/17-Exemptions and directions-use of portable electronic devices when loading fuel [F2017L00975]-Concluded matters [2017] AUSStaCSDLM 375 (18 October 2017)

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Instrument	CASA EX106/17 - Exemptions and directions - use of portable electronic devices when loading fuel [F2017L00975]
Purpose	Exempts operators, operator personnel, and pilots in command of turbine engine aircraft using underwing fuelling systems from compliance with specified provisions of Civil Aviation Order 20.9 and the Civil Aviation Regulations 1988
Authorising legislation	Civil Aviation Safety Regulations 1998
Portfolio	Infrastructure and Regional Development
Disallowance	15 sitting days after tabling (tabled Senate 8 August 2017) The time to give a notice of motion to disallow expired on 16 October 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 11 of 2017

The committee previously commented in relation to 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 the definition of 'PED' in section 2 of the instrument incorporates 'IEEE 802.11 wireless standard'. However, neither the instrument nor its explanatory statement (ES) specifies the manner in which this document is incorporated.

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 instrument incorporates the 'IEEE 802.11 wireless standard'. However, neither the instrument nor the ES indicates where the standard can be freely accessed.

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 may fail to satisfy the requirements of the Legislation Act 2003. In this case the committee has observed that the document appears to be available for free online.^[1] Where an incorporated document is available for free online, the committee considers that a best-practice approach is for the ES 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.^[2]

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

Minister's response

The Minister for Infrastructure and Transport advised:

The instrument provides alternative regulatory arrangements for the use of electronic devices around aircraft that are being refuelled. The instrument refers to devices that transmit on a frequency specified in an Institute of Electrical and Electronics Engineers (IEEE) 802.11 wireless standard. The wireless standards are freely available from the IEEE website at www.ieee.org.
I am advised that the Civil Aviation Safety Authority will lodge a replacement explanatory statement to clarify the operation of the instrument, and this will be available by 15 September 2017.

Committee's response

The committee thanks the minister for his response and notes that the replacement ES has now been registered and published on the Federal Register of Legislation. The relevant extract from the ES states that:

In accordance with subregulation 98 (5D) of the [Civil Aviation] Act, the wi-fi standards referenced in the definition of PED are incorporated as they exist from time to time so that the instrument covers devices that transmit on frequencies specified on superseded as well as future versions of the standards...
The wi-fi standards are freely available from the IEEE website at www.ieee.org.

The committee has concluded its examination of the above instrument.

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[1] See IEEE Standards Association, IEEE Get Program, available at https://standards.ieee.org/about/get/802/802.11.html (accessed 4 September 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.