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Australian Senate Standing Committee for the Scrutiny of Delegated Legislation - Monitor |
This guideline provides information on preparing an explanatory statement (ES)
to accompany a legislative instrument, specifically in relation to the requirement that such statements must describe the nature of any consultation undertaken or explain why no such consultation was undertaken.
The committee scrutinises instruments to ensure, inter alia, that they meet the technical requirements of the Legislation Act 2003 (the Act)[1] regarding the description of the nature of consultation or the explanation as to why no consultation was undertaken. Where an ES does not meet these technical requirements, the committee generally corresponds with the relevant minister or instrument-maker seeking further information and appropriate amendment of
the ES.
Ensuring that the technical requirements of the Act are met in the first instance will negate the need for the committee to write to the relevant minister or instrument-maker seeking compliance, and ensure that an instrument is not potentially subject to disallowance.
It is important to note that the committee's concern in this area is to ensure only that an ES is technically compliant with the descriptive requirements of the Act regarding consultation, and that the question of whether consultation that has been undertaken is appropriate is a matter decided by the instrument-maker at the time an instrument is made.
However, the nature of any consultation undertaken may be separately relevant to issues arising from the committee's scrutiny principles, and in such cases the committee may consider the character and scope of any consultation undertaken more broadly.
Section 17 of the Act requires that, before making a legislative instrument,
the instrument-maker must be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed instrument.
It is important to note that section 15J of the Act requires that ESs describe the nature of any consultation that has been undertaken or, if no such consultation
has been undertaken, to explain why none was undertaken.
It is also important to note that requirements regarding the preparation of
a Regulation Impact Statement (RIS) are separate to the requirements of the Act
in relation to consultation. This means that, although a RIS may not be required in relation to a certain instrument, the requirements of the Act regarding a description of the nature of consultation undertaken, or an explanation of why consultation has not occurred, must still be met. However, consultation that has been undertaken under a RIS process will generally satisfy the requirements of the Act, provided that that consultation is adequately described (see below).
If a RIS or similar assessment has been prepared, it should be provided to the committee along with the ES.
To meet the requirements of section 15J of the Act, an ES must describe the nature of any consultation that has been undertaken. The committee does not usually interpret this as requiring a highly detailed description of any consultation undertaken. However, a bare or very generalised statement of the fact that consultation has taken place may be considered insufficient to meet the requirements of the Act.
Where consultation has taken place, the ES to an instrument should set out the following information:
• Method and purpose of consultation: An ES should state who and/or which bodies or groups were targeted for consultation and set out the purpose and parameters of the consultation. An ES should avoid bare statements such as 'Consultation was undertaken'.
• Bodies/groups/individuals consulted: An ES should specify the actual names of departments, bodies, agencies, groups et cetera that were consulted.
An ES should avoid overly generalised statements such as 'Relevant stakeholders were consulted'.
• Issues raised in consultations and outcomes: An ES should identify the nature of any issues raised in consultations, as well as the outcome of the consultation process. For example, an ES could state: 'A number of submissions raised concerns in relation to the effect of the instrument on retirees. An exemption for retirees was introduced in response to these concerns'.
To meet the requirements of section 15J of the Act, an ES must explain why no consultation was undertaken. The committee does not usually interpret this as requiring a highly detailed explanation of why consultation was not undertaken. However, a bare statement that consultation has not taken place may be considered insufficient to meet the requirements of the Act.
In explaining why no consultation has taken place, it is important to note the following considerations:
• Absence of consultation: Where no consultation was undertaken the Act requires an explanation for its absence. The ES should state why consultation was unnecessary or inappropriate, and explain the reasoning supporting this conclusion. An ES should avoid bare assertions such as 'Consultation was not undertaken because the instrument is beneficial in nature'.
• Timing of consultation: The Act requires that consultation regarding an instrument must take place before the instrument is made. This means that, where consultation is planned for the implementation or post-operative phase of changes introduced by a given instrument, that consultation cannot generally be cited to satisfy the requirements of sections 17 and 15J of the Act.
In some cases, consultation is conducted in relation to the primary legislation which authorises the making of an instrument of delegated legislation, and this consultation is cited for the purposes of satisfying the requirements of the Act.
The committee may regard this as acceptable provided that (a) the primary legislation and the instrument are made at or about the same time and (b) the consultation addresses the matters dealt with in the delegated legislation.
This guideline provides information on the committee's expectations in relation to legislative instruments that incorporate, by reference, Acts, legislative instruments or other external documents, without reproducing the relevant text of the incorporated material in the instrument.
Where an instrument incorporates material by reference, the committee expects
the instrument and/or its explanatory statement (ES) to:
1. specify the manner in which the Act, legislative instrument, or other document is incorporated;
2. identify the legislative authority for the manner of incorporation specified;
3. contain a description of the incorporated document; and
4. include information as to where the incorporated document can be readily and freely accessed.
These expectations reflect the fact that incorporated material becomes a part of
the law.
The guideline includes brief background information, an outline of the legislative requirements and guidance about the committee's expectations in relation to ESs.
Instruments may incorporate, by reference, Acts, legislative instruments and other documents as they exist at different times (for example, as in force from time to time, as in force at a particular date or as in force at the commencement of
the instrument). However, the manner in which material is incorporated must be authorised by legislation.
Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating Commonwealth Acts and disallowable legislative instruments, either as in force at a particular time or as in force from time to time. Authorising or other legislation may also provide that other documents can be incorporated into instruments as in force from time to time. However, in the absence of such legislation, other documents may only be incorporated as at the commencement of the legislative instrument (see subsection 14(2) of the Legislation Act 2003).
The committee expects instruments (and ideally their accompanying ESs) to clearly specify:
• the manner in which Acts, legislative instruments and other documents are incorporated (that is, either as in force from time to time or as in force
at a particular time); and
• the legislative authority for the manner of incorporation.
This enables a person interested in or affected by an instrument to understand
its operation without the need to rely on specialist legal knowledge or advice,
or consult extrinsic material.
Below are some examples of reasons provided in ESs for the incorporation of different types of documents that the committee has previously accepted:
• Commonwealth Acts and disallowable legislative instruments
Section 10 of the Acts Interpretation Act 1901 (as applied by section 13(1)(a) of the Legislation Act 2003) has the effect that references to Commonwealth disallowable legislative instruments can be taken to be references to versions of those instruments as in force from time to time.
• State and Territory Acts
Section 10A of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) has the effect that references to State and Territory Acts can be taken to be references to versions of those Acts
as in force from time to time.
• Other documents (for example, Commonwealth instruments that are exempt from disallowance, Australian and international Standards)
A section of the authorising (or other) legislation is identified that operates to allow these documents to be incorporated as in force from time to time.
A fundamental principle of the rule of the law is that every person subject to the law should be able to readily and freely (i.e. without cost) access its terms. This principle is supported by provisions in the Legislation Act 2003.
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 expects ESs to:
• contain a description of incorporated documents; and
• include information about where incorporated documents can be readily and freely accessed (for example, at a particular website).
In this regard, the committee's expectations accord with the approach of the Senate Standing Committee for the Scrutiny of Bills, which has consistently drawn attention to provisions of bills that authorise material to be incorporated by reference, particularly where the material is not likely to be readily and freely available to
the public.
Generally, the committee will be concerned where incorporated documents are not publicly, readily and freely available, because persons interested in or affected by
the law may have inadequate access to its terms. In addition to access for members of a particular industry or profession etc. that are directly affected by a legislative instrument, the committee is interested in the broader issue of access for other parties who might be affected by, or are otherwise interested in, the law.
The issue of access to material incorporated into the law by reference to external documents, such as Australian and international standards, has been an issue of ongoing concern to Australian parliamentary scrutiny committees. Most recently,
the Joint Standing Committee on Delegated Legislation of the Western Australian Parliament has published a detailed report on this issue.[2] This report comprehensively outlines the significant scrutiny concerns associated with the incorporation of material by reference, particularly where the incorporated material is not freely available.
Below are some examples of explanations provided in ESs with respect to access to incorporated documents which, with the appropriate justification, the committee has previously accepted:
• copies of incorporated documents will be made available for viewing free of charge at the administering agency's state and territory offices;
• the relevant extracts from the incorporated documents are set out in full in the instrument or ES; or
• copies of incorporated documents will be made available free of charge to people affected by, or interested in, the instrument on request to the administering agency.
[1] On 5 March 2016 the Legislative Instruments Act 2003 became the Legislation Act 2003 due to amendments made by the Acts and Instruments (Framework Reform) Act 2015.
[2] Thirty-Ninth Parliament, Report 84, Joint Standing Committee on Delegated Legislation, Access to Australian Standards Adopted in Delegated Legislation (June 2016) http://www. parliament.wa.gov.au/parliament/commit.nsf/all/6BCDA79F24A4225648257E3C001DB33F?opendocument&tab=tab3 (accessed 10 January 2017).
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URL: http://www.austlii.edu.au/au/other/cth/AUSStaCSDLM/2017/76.html