Torres Strait Prawn Fishery Management Plan Amendment 2017 [F2017L00120]-Response required [2017] AUSStaCSDLM 84 (22 March 2017)

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Instrument	Torres Strait Prawn Fishery Management Plan Amendment 2017 [F2017L00120]
Purpose	Amends the Torres Strait Prawn Fishery Management Plan 2009 to clarify anomalies that have arisen since the original plan was made including allowing for reduction in the total shares in the fishery due to surrendered entitlements and the implementation of vessel monitoring systems
Last day to disallow	20 June 2017
Authorising legislation	Torres Strait Fisheries Act 1984
Department	Agriculture and Water Resources
Scrutiny principle	Standing Order 23(3)(a)

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 item 13 of Schedule 1 to

the instrument substitutes a new paragraph 5.1(1)(c) into the Torres Strait Prawn Fishery Management Plan 2009 which requires a licensee to ‘keep a logbook of

the type specified in the current logbook instrument’. However, neither the instrument nor the ES states the manner in which the 'current logbook instrument' is incorporated.

The committee's expectations in this regard are set out in the guideline on incorporation contained in Appendix 1.

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

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 (i.e. without cost) 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 'current logbook instrument'. However, the ES does not contain a description of this document, or indicate how the document may be obtained.

The committee's expectations in this regard are set out in the guideline on incorporation contained in Appendix 1.

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

The committee's usual expectation is that an instrument or its ES identifies the provision of the enabling legislation which authorises the making of the instrument.

The committee notes that the text on the front page of the instrument refers to subsection 33(3A) of the Acts Interpretation Act 1901 (AIA). However, as the instrument is amending the Torres Strait Prawn Fishery Management Plan 2009, the committee understands the instrument to be relying on subsection 33(3) of the AIA which provides that the power to make an instrument includes the power to vary or revoke the instrument.

The committee draws the above to the minister's attention.