ASIC Corporations (Factoring Arrangements) Instrument 2017/794 [F2017L01198]-Concluded matters [2017] AUSStaCSDLM 442 (12 June 2017)

• Chapter 2
• Concluded matters

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Chapter 2

Concluded matters

This chapter sets out matters which have been concluded following the receipt of additional information from ministers.

Correspondence relating to these matters is available on the committee's website.^[1]

Instrument	ASIC Corporations (Factoring Arrangements) Instrument 2017/794 [F2017L01198]
Purpose	Exempts sellers and purchasers of accounts receivable under factoring arrangements from legal requirements relating to derivatives under the Corporations Act 2001, where the factoring arrangement would otherwise fall within the definition of a derivative
Authorising legislation	Corporations Act 2001
Portfolio	Treasury
Disallowance	15 sitting days after tabling (tabled Senate 16 October 2017) Notice of motion to disallow must be given by 7 December 2017[2]
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 14 of 2017

Access to incorporated document

The committee previously commented as follows:

Paragraph 15J(2)(c) of the Legislation Act 2003 requires the explanatory statement (ES) for a legislative instrument that incorporates a document to contain a description of that document and indicate how it may be obtained.

Section 6 of the instrument incorporates Australian Standard AS ISO 10002-2006 Customer satisfaction – Guidelines for complaints handling in organizations

(ISO 10002:2004 MOD) published by SAI Global Limited on 5 April 2006.

The committee’s research indicates that the relevant standard in its entirety may be obtained from SAI Global, on payment of a fee. However, neither the instrument

nor its ES states whether and where the standard can be accessed for free.

The committee's expectations in this regard 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.

The issue of access to material incorporated into the law by reference to external documents, such as Australian and international standards, has been one of

ongoing concern to Australian parliamentary scrutiny committees. The committee's expectation, at a minimum, is that consideration be given by the department to any means by which the document is or may be made available free of charge to interested or affected persons. This may be, for example, by noting availability through specific public libraries, or by making the document available for viewing

on request to the department. Consideration of this principle and details of any means of access identified or established should be reflected in the ES to the instrument.

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 minister's advice as to how the incorporated standard is or may be made readily and freely available to persons interested in or affected by the instrument; and requested that the ES be updated to include this information.

Minister's response

The Minister for Revenue and Financial Services advised:

I have received advice that the incorporation by reference of the standard reflects the incorporation of the standard in the Corporations Regulations 2001 at regulations 7.6.02 and 7.9.77.
Additionally, any persons interested in or affected by the instrument
are able to access this information in a number of ways, including in:

• ASIC Regulatory Guide 165: Licensing: Internal and external dispute resolution, which provides substantial guidance on how ASIC will apply the standard; and

• several state libraries, including the State Library of New South Wales and the State Library of Queensland, which may be viewed by persons interested in, or affected by, the instrument.

Noting the Committee's concerns that the Legislation Act 2003 requires that an explanatory statement for a legislative instrument that incorporates a document must contain a description of that document and indicate how it may be obtained, ASIC have also advised that they will amend the explanatory statement to refer readers to the guidance in
ASIC Regulatory Guide 165 and the ability to access the standard at public libraries.

Committee's response

The committee thanks the minister for her response. The committee notes that a supplementary ES, which references the free availability of the incorporated standard at public libraries including the state libraries of NSW and Queensland, has been registered on the Federal Register of Legislation.

The committee has concluded its examination of the instrument.

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^[1] See www.aph.gov.au/regords_monitor.

^[2] In the event of any change to the Senate's sitting days, the last day for the notice would change accordingly.

^[3] 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.