Fisheries Management (International Agreements) Amendment (2015 and 2016 Measures) Regulations 2017 [F2017L00920]-Concluded matters [2017] AUSStaCSDLM 378 (18 October 2017)

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Instrument	Fisheries Management (International Agreements) Amendment (2015 and 2016 Measures) Regulations 2017 [F2017L00920]
Purpose	Amends the Fisheries Management (International Agreements) Regulations 2009 to include amendments to the international fisheries management measures that are currently prescribed and prescribe those that came into force as a result of meetings of five international fisheries management organisations held between 1 July 2015 and 30 June 2016
Authorising legislation	Fisheries Management Act 1991
Portfolio	Agriculture and Water Resources
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 regulations incorporate the following documents:

• Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR) Conservation Measures 10-04, 25-02 (Annex 25-02/A) and 41-01 (Annex 41-01/C);^[1] and

• South Pacific Regional Fisheries Management Organisation (SPRFMO) Conservation and Management Measure 13‑2016.^[2]

However, neither the regulations nor the explanatory statement (ES) state the manner in which these documents are 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 of documents published on the committee's website.^[3]

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

ccess 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 regulations incorporate the abovementioned documents. However, neither the regulations nor the ES provide descriptions of the documents or indicate where they 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 notes that the documents are available for free online.^[4] 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.^[5]

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

Minister's response

The Assistant Minister for Agriculture and Water Resources advised:

The Instrument amended the Fisheries Management (International Agreements) Regulations 2009 (the Principal Regulations). The broad purpose of the Principal Regulations is to give effect, through the legislative framework for Commonwealth fisheries management, to international fisheries management measures (IFMMs) agreed by international fisheries management organisations (IFMOs) to which Australia is a party.
...
The Instrument prescribes in the Principal Regulations both new IFMMs, and amendments to existing IFMMs, that have come into force as a result of decisions made at meetings of five IFMOs held between 1 July 2015 and 30 June 2016. These IFMOs are the Commission for the Conservation of Antarctic Marine Living Resources (CCAMLR), the Indian Ocean Tuna Commission (IOTC), the Western and Central Pacific Fisheries Commission (WCPFC), the Commission for the Conservation of Southern Bluefin Tuna (CCSBT) and the South Pacific Regional Fisheries Management Organisation (SPRFMO). The IFMMs that were prescribed by way of incorporation were incorporated as in force at the commencement of the Instrument. They relate to matters such as vessel monitoring systems, seabird bycatch mitigation and the management of exploratory fisheries.
Copies of all IFMMs prescribed in the Instrument and the Principal Regulations can be accessed at no charge from the websites of the respective IFMOs, as follows:

• CCAMLR: www.ccamlr.org

• IOTC: www.iotc.org

• WCPFC: www.wcpfc.int

• CCSBT: www.ccsbt.org

• SPRFMO: www.sprfmo.int

The Explanatory Statement for the Instrument has been updated to clarify these matters and is enclosed. My department will arrange for the updated Explanatory Statement to be re-registered on the Federal Register of Legislation.
...I have also reminded my department and the Australian Fisheries Management Authority of the importance of reflecting on the committee's feedback when preparing future instruments.
Committee's response

The committee thanks the minister for her response and notes that the replacement ES received by the committee has now been registered and published on the Federal Register of Legislation.

The committee has concluded its examination of the instrument.

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[1] See items 10, 13 and 14.

[2] See item 50.

[3] 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.

[4] See Commission for the Conservation of Antarctic Marine Living Resources, Conservation measures, available at https://www.ccamlr.org/en/conservation-and-management/browse-conservation-measures; and South Pacific Regional Fisheries Management Organisation, 2017 Conservation and Management Measures, available at https://www.sprfmo.int/conservation-measures/ (accessed 31 August 2017).

[5] 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.