Competition and Consumer (Inland Terminals) Declaration 2017 [F2017L01077]-Concluded matters [2017] AUSStaCSDLM 410 (15 November 2017)

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Instrument	Competition and Consumer (Inland Terminals) Declaration 2017 [F2017L01077]
Purpose	Declares specified facilities to be inland terminals, to facilitate the movement of containers away from ports to inland distribution centres
Authorising legislation	Competition and Consumer Act 2010
Portfolio	Infrastructure and Regional Development
Disallowance	15 sitting days after tabling (tabled Senate 4 September 2017) Notice of motion to disallow currently must be given by 16 November 2017
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 13 of 2017

Description of consultation

The committee previously commented as follows:

Section 17 of the Legislation Act 2003 directs a rule-maker to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument. The ES which must accompany an instrument is required to describe the nature of any consultation that has been carried out or,

if there has been no consultation, to explain why none was undertaken (paragraphs 15J(2)(d) and (e)).

Under the heading of consultation, the ES states:

The Department of Infrastructure and Regional Development (the Department) provided the list of facilities specified in the instrument to the Australian Competition and Consumer Commission and a peak shipping body which represents international liner shipping firms operating on Australian trade routes. The Department also provided the list to the two peak shipper bodies (representing the customers of the shipping lines) designated under Part X.

While the committee does not usually interpret paragraphs 15J(2)(d) and (e) as requiring a highly detailed description of consultation undertaken, it considers that an overly bare or general description is insufficient to satisfy the requirements of

the Legislation Act 2003.^[1] In this case, the committee was unable to discern from the description in the ES whether the list of terminals was provided to the named organisations in the nature of consultation, prior to its finalisation, or was merely provided to them for information once the instrument had been finalised.

The committee requested the minister's advice as to the nature of the consultation undertaken on the instrument, and requested that the ES be updated in accordance with the requirements of the Legislation Act 2003.

Minister's response

The Minister for Infrastructure and Transport advised:

The Department [of Infrastructure and Regional Development] has advised that stakeholders were provided with a copy of the proposed new instrument, along with an analysis of the proposed changes, prior to finalisation of the instrument. The stakeholders also had the opportunity to provide feedback to the Department on the proposed new instrument. The Department has further advised that the Explanatory Statement will be replaced with a new one that clarifies how the consultation occurred.

Committee's response

The committee thanks the minister for his response and notes that a replacement ES containing a description of the consultation undertaken in preparing the instrument 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] The committee's expectations in this regard are set out in the guideline on consultation published on the committee's website: http://www.aph.gov.au/Parliamentary_Business/ Committees/Senate/Regulations_and_Ordinances/Guidelines/consultation.