Plant Health Australia (Plant Industries) Funding Repeal Determination 2016 [F2017L00109]-Advice only [2017] AUSStaCSDLM 91 (22 March 2017)

• Advice only

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Advice only

The committee draws the following matters to the attention of relevant ministers or instrument-makers on an advice only basis.

Instrument	Plant Health Australia (Plant Industries) Funding Repeal Determination 2016 [F2017L00109]
Purpose	Repeals the Plant Health Australia (Plant Industries) Funding Determination 2015. The repeal is required annually because each year PHA advises the correct proportions of the annual membership contribution
Last day to disallow	13 June 2017
Authorising legislation	Plant Health Australia (Plant Industries) Funding Act 2002
Department	Agriculture and Water Resources
Scrutiny principle	Standing Order 23(3)(a)

Description of consultation

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)).

With reference to these requirements, the committee notes that the ES for this determination states:

PHA has advised the proportions for each relevant PHA plant product for 2016-17 and requested that the Plant Health Australia (Plant Industries) Funding Repeal Determination 2015 be repealed. The proportions for each relevant PHA plant product for 2016-17 are set out in the Plant Health Australia (Plant Industries) Funding Determination 2016.
The Office of Best Practice Regulation (OBPR) has been consulted and has advised that a Regulatory Impact Statement is not required (OBPR Reference Number 21017 refers).

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.

The committee's guideline on consultation also states:

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.

In terms of complying with paragraphs 15J(2)(d) and (e) of the Legislation Act 2003, the committee's preferred approach would be for the ES to have explicitly stated that further consultation for the determination was considered unnecessary (or inappropriate), if this is the case.

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

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