AD/GAS/1 Amdt 12-Inspection, Test and Retirement [F2016L01941]-Concluded matters [2017] AUSStaCSDLM 96 (22 March 2017)

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Instrument	AD/GAS/1 Amdt 12 - Inspection, Test and Retirement [F2016L01941]
Purpose	Repeals and replaces AD/GAS/1 Amdt 11 to specify what versions of incorporated documents must be used
Last day to disallow	9 May 2017
Authorising legislation	Civil Aviation Safety Regulations 1998
Department	Infrastructure and Regional Development
Scrutiny principle	Standing Order 23(3)(a)
Previously reported in	Delegated legislation monitor 1 of 2017

Access to incorporated documents

The committee commented as follows:

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, as in force from time to time, AS 2030 and paragraph 10.2.2 of AS2337.1-2004. The ES for the instrument states:

Australian Standard 2337.1-2004 (and other Australian Standards) are available for purchase from various suppliers, including SAI Global (from their website: https://www.saiglobal.com).

While the committee notes that the instrument has been made in response to previous concerns it raised with respect to access to incorporated documents,^[1] the committee remains concerned about this issue, as it appears that AS 2030 and AS2337.1-2004 can only be obtained for a fee and the ES does not provide information about whether these standards can otherwise be accessed for free by persons interested in or affected by the instruments.

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.

Minister's response

The Minister for Infrastructure and Transport advised:

CASA [the Civil Aviation Safety Authority] incorporates requirements by reference to reduce the length and complexity of instruments and where there is no value in paraphrasing or reproducing the incorporated material. Examples of documents that CASA instruments incorporate by reference include foreign or privately owned airworthiness standards, standards for non-aviation specific matters
(e.g. standards for standard parts like nuts and bolts) that are administered [by] Australian Standards or other standards bodies, CASA policy documents, documents produced by manufacturers of aircraft and operational documents of particular operators. These standards are selected because they promote the safe conduct of the relevant aviation activities. Wherever possible CASA uses freely available standards.
In some cases, CASA may incorporate a purchasable standard as an alternative to a freely available standard, providing choice. If CASA did not provide that choice, then the purchasable standard would not be able to be used to comply with aviation safety requirements even if a person wished to use it.
In other cases, particularly in relation to older aircraft no longer supported by the original manufacturer, there are only standards made available for a fee from the manufacturer.
These standards are required in order for those aircraft to remain safe. CASA has no resources to develop its own standards for such aircraft,
nor funding to purchase the standards in a way that enables CASA to make the standard freely available. The alternative is for the aircraft to cease to meet safety requirements and to be grounded. In other cases a standard may relate to a matter that is not aviation-specific. For example, Airworthiness Directive AS/GAS/1 Arndt 12 incorporates by reference Australian Standard 2337.1-2004 relating to the inspection of gas cylinders. There is no aviation-specific standard for this matter and CASA considers that there would be no value in CASA developing such a standard unless aviation-specific risks needed to be addressed.
CASA has no expertise in such matters, which are better considered
by persons outside the aviation industry. In order to ensure that gas cylinders used in aviation applications are safe, CASA has adopted the Australian Standard and to CASA's knowledge, there is no freely available standard for the same matter.
CASA recognises the importance of the principle of the free availability of legal requirements, including matters such as standards that might be incorporated into law by reference. However, CASA has a limited role in influencing either policy or the law on the issue, particularly in relation to foreign and non-aviation specific standards. For its part, however, CASA will take appropriate steps to ensure that standards are freely available wherever possible, including as an alternative to a purchasable standard in appropriate circumstances.
At the same time, CASA is unable within the scope of its safety mandate under section 9A of the Civil Aviation Act 1988 to exclude relevant standards on the basis that they are not freely available. To do so would create significant costs and disruption to the aviation industry based on
an action that is outside the scope of CASA's functions.

Committee's response

The committee thanks the minister for his response and has concluded its examination of the instrument.

In concluding, the committee notes the minister's advice that CASA is unable within the scope of its safety mandate under section 9A of the Civil Aviation Act 1988 to exclude relevant standards on the basis that they are not freely available; and that to do so would create significant costs and disruption to the aviation industry based on an action that is outside the scope of CASA's functions.

The committee also notes the minister's advice that CASA will take appropriate steps to ensure that standards are freely available wherever possible, including as an alternative to a purchasable standard.

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.

The committee remains concerned about the lack of free access to material incorporated into legislation generally, and will continue to monitor this issue.

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[1] See Delegated legislation monitors 7 and 8 of 2016.

[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/(Report+Lookup+by+Com+ID)/416D0BF968BDB17048257FDB0009BEF9/$file/dg.asa.160616.rpf.084.xx.pdf (accessed 6 February 2017).