Broadcasting Services (Technical Planning) Guidelines (Consequential Amendments) Instrument 2017 (No 2) [FL2017L01302] and Radiocommunications (Spectrum Licence Allocation-Multi-band Auction) Determination 2017 [F2017L01255]-Response required [2017] AUSStaCSDLM 386 (15 November 2017)

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Instrument	Broadcasting Services (Technical Planning) Guidelines (Consequential Amendments) Instrument 2017 (No. 2) [FL2017L01302] Radiocommunications (Spectrum Licence Allocation – Multi-band Auction) Determination 2017 [F2017L01255]
Purpose	Amends two television licence area plans Determines the procedures to be applied in allocating spectrum licences in specific parts of certain frequencies; and fixes the spectrum access charges payable by the persons to whom such licences are allocated
Authorising legislation	Radiocommunications Act 1992
Portfolio	Communications and the Arts
Disallowance	15 sitting days after tabling (tabled Senate 16 October 2017) Notice of motion to disallow currently must be given by 7 December 2017
Scrutiny principle	Standing Order 23(3)(a)

Incorrect classification of legislative instruments as exempt from disallowance

The Broadcasting Services (Technical Planning) Guidelines (Consequential Amendments) Instrument 2017 (No. 2) is made under two enabling provisions in the Radiocommunications Act 1992 (Radiocommunications Act): subsection 106(1) and paragraph 107(1)(f). Table item 29 of section 10 of the Legislation (Exemptions and Other Measures) Regulation 2015 (LEOM Regulation) provides that instruments made under subsection 106(1) of the Radiocommunications Act are exempt from disallowance. However, instruments made under paragraph 107(1)(f) are not exempted under the LEOM Regulation, and the committee is not aware of any other exemption from disallowance applying to instruments made under that paragraph.

The Radiocommunications (Spectrum Licence Allocation – Multi-band Auction) Determination 2017 is also made under two enabling provisions in the Radiocommunications Act: section 60 and section 294. Table item 29 of section 10 of the LEOM Regulation provides that instruments made under subsection 60(1) of the Radiocommunications Act are exempt from disallowance. However, instruments made under section 294 are not exempted under the LEOM Regulation, and the committee is not aware of any other exemption from disallowance applying to instruments made under section 294. In this regard, the committee also notes that the ES to the instrument states that ‘[t]o the extent that the Determination is made under subsection 294(1) of the Act, it is a disallowable instrument’.

Both instruments were classified as exempt from disallowance when received by Parliament and the committee, and were tabled in the House of Representatives and the Senate on 16 October 2017 on that basis. The committee is concerned that classifying both instruments in their entirety as exempt from disallowance has potentially hindered Parliament’s effective oversight of delegated legislation,

by purporting to remove Parliament's ability to disallow the provisions of the instruments which are made under section 294 and paragraph 107(1)(f) respectively, and are therefore disallowable.

The committee's expectation is that disallowable and non-disallowable provisions should not be combined in the same instrument unless this is entirely unavoidable. Should it be necessary to combine disallowable and non-disallowable provisions in the same instrument, the committee expects at a minimum that any such instrument should be classified as disallowable, and the instruments or their ESs should clearly specify the provisions which are able to be disallowed, in order to ensure that Parliament's prerogative to disallow those provisions is preserved.

While the committee understands that both instruments have now been re-classified as subject to disallowance, after being drawn to the attention of the Office of Parliamentary Counsel by the committee's secretariat, the committee remains concerned about the processes for classification of instruments, and will continue to monitor the issue.

The committee requests the minister's advice in regard to the classification of these instruments as exempt from disallowance, and the combination of disallowable and non-disallowable provisions in legislative instruments.