Determination 2017/15: Official Travel by Office Holders [F2017L01036]-Concluded matters [2017] AUSStaCSDLM 411 (15 November 2017)

---

Instrument	Determination 2017/15: Official Travel by Office Holders [F2017L01036]
Purpose	Revokes and supercedes Determination 2016/07 – Official Travel by Office Holders, updating the provisions and allowances for public office holders travelling on official business
Authorising legislation	Remuneration Tribunal Act 1973
Portfolio	Prime Minister and Cabinet
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 12 of 2017

Manner of incorporation

The committee previously commented as follows:

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 noted that at paragraph 3.11 the instrument appears to incorporate the ‘Taxation Determination TD 2017/19 (or its successor)’.

However, pursuant to section 14 of the Legislation Act 2003, the committee understands that, as taxation determinations are not disallowable legislative instruments, they may only be incorporated as in force at the commencement of

the determination, unless authorising or other legislation alters the operation of section 14 of the Legislation Act 2003.

The ES does not address the manner in which the taxation determination is incorporated.

The committee's expectations in this regard are set out in the guideline on incorporation of documents published on the committee's website.^[1]

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

Minister's response

The Minister for Employment advised:

I am advised that the Remuneration Tribunal has been requested to issue an amending determination at its next formal meeting on 26 October 2017 that will delete the reference to '(or its successor)' in Clause 3.11 of Remuneration Tribunal Determination 2017/15: Official Travel by Office Holders.
The attached revised Explanatory Statement has been amended consistent with the Committee's Guideline on Incorporation. In particular I draw your attention to paragraphs 6-11 of the Explanatory Statement. The Tribunal's secretariat will arrange for its registration on the Federal Register of Legislative Instruments.
Relevant excerpt from the ES:
9. In conducting its travel review the Remuneration Tribunal exercises its powers under sub-sections 5(2A), 7(3) and 7(4) of the Remuneration Tribunal Act 1973. In making Remuneration Tribunal Determination 2017/15 the Tribunal decided that the arrangements set out at Table 9 (Table of countries) of TD 2017/19 are appropriate for office holders in its jurisdiction to cover meal and incidental expenses incurred while travelling overseas. Rather than replicate the detailed tables and related allowance rates in its determination the Tribunal has incorporated these by reference to TD 2017/19. The Tribunal has aligned the cost groups contained in TD 2017/19 to the travel tiers that it sets from time to time for office holders.
10. Taxation Determination TD 2017/19 is available online for free at http://law.ato.gov.au/atolaw/view.htm?docid=%22TXD%2FTD201719%2FNAT%2FATO%2F00001%22.

Committee's response

The committee thanks the minister for her response and notes that an amending instrument has now been made and registered on the Federal Register of Legislation (Determination 2017/19: Official Travel by Office Holders [F2017L01409]), which removes the words 'or its successor' from clause 3.11 of the principal instrument. The committee also notes that a replacement ES to the principal instrument addressing the committee's concerns has been registered and published on the Federal Register of Legislation.

The committee has concluded its examination of the instrument.

---

[1] 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.