Amendment Statement of Principles concerning panic disorder No 101 of 2016 [F2016L01681] and Amendment Statement of Principles concerning panic disorder No 102 of 2016 [F2016L01668]-Concluded matters [2017] AUSStaCSDLM 41 (8 February 2017)

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Instrument	Defence and Strategic Goods List Amendment Instrument 2016 [F2016L01727]
Purpose	Aligns the Defence and Strategic Goods List with changes to the international control lists for the non-proliferation and export control regimes to which Australia is a member
Last day to disallow	20 March 2017
Authorising legislation	Customs Act 1901
Department	Defence
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 10 of 2016

The committee commented in relation to two matters as follows:

Incorporation of documents

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 instrument incorporates:

• ITU Radio Regulations in its definition of 'allocated by the ITU' in Schedule 1, section 4.2;

• ISO 230-2:2014 in its definition of 'Undirectional positioning repeatability' in Schedule 1, section 4.2; and

• ISO 492 Tolerance Class 4 in Schedule 1, sections 2A001 and 2A101.

However, neither the text of the instrument nor the explanatory statement (ES) expressly states the manner in which the ITU Radio Regulations, ISO 230-2:2014,

and ISO 492 Tolerance Class 4 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 the commencement of the legislative instrument).

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 requests the advice of the minister in relation to this matter.

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 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 ITU Radio Regulations, ISO 230-2:2014 and ISO 492 Tolerance Class 4.

However, neither the text of the instrument nor the ES provides a description of these documents or indicates how they may be freely obtained.

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 where an incorporated document may be accessed fails to satisfy the requirements of the Legislation Act 2003.

The committee requests the advice of the minister in relation to this matter.

Minister's response

The Minister for Defence advised:

The references in the Amendment Instrument to the technical documents ITU Radio Regulations, ISO 230-2:2014 and ISO 492 that the Committee has identified, reflect internationally agreed descriptions of export controlled goods or technology.
The term ITU Radio Regulations refers to a document published by the International Telecommunications Union (ITU), a specialised agency of the United Nations.
The ITU Radio Regulations are available in the public domain free-of-charge on the ITU website at www.itu.int/pub/R-REG-RR-2012.
The ITU Radio Regulations include internationally recognised allocations for the use of different bands of the radio frequency spectrum. The Regulations are used by the Wassenaar Arrangement, of which Australia is a member, to define an export control exemption for certain radio equipment which is designed for a frequency band that the ITU has allocated for radio-communication services only.
The terms ISO 230-2:2014 and ISO 492 refer to documents published by the International Standards Organisation (ISO), a network of national standards bodies, of which Australia is a member. ISO 230-2:2014 is the internationally recognised standard used for the determination of accuracy and repeatability of positioning of numerically controlled axes. This standard is used by the Wassenaar Arrangement to define export control parameters for machine tools usable in the development of military weapons and systems.
ISO 492 is the internationally recognised standard used for geometrical product specifications and tolerance values of radial rolling bearings. This standard is used by the Wassenaar Arrangement and the Missile Technology Control Regime, of which Australia is also a member, to define export control parameters for bearings that are usable as high-precision components for missile and rocket engines. The phrase 'Tolerance Class 4' refers to a specific section of the standard.
Copies of these ISO publications are held by the National Library of Australia and are available free-of-charge to members of the public for loan. They are also available for purchase through the ISO website at www.iso.org.
I note the Committee's expectation that explanatory statements specify the manner in which documents are incorporated. With regards to the aforementioned ITU Radio Regulations and ISO standards, the intention is for these documents to be incorporated as in force at the time of the commencement of the instrument.
The instrument and accompanying explanatory statement will include information reflecting the above advice the next time the instrument is amended.

Committee's response

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

In concluding, the committee notes the minister's advice that the ISOs incorporated in the instrument are held by the National Library of Australia and are available

free-of-charge to members of the public for loan.

The committee also thanks the minister for her advice that the next time the instrument is amended it will include information about the manner in which documents are incorporated and how they may be freely obtained.