[Peetwo]

Delegated Legislation Monitors 2 of 2021

Ministerial responses  Committee correspondence

Part 138 (Aerial Work Operations) Manual of Standards 2020 [F2020L01402]

Principle (e) drafting
Seeking advice from the minister.

Dear McDonaught....L&Ks Connie - 

Dear Minister,


Part 138 (Aerial Work Operations) Manual of Standards 2020 [F2020L01402]

The Senate Standing Committee for the Scrutiny of Delegated Legislation (the committee) assesses all disallowable legislative instruments against scrutiny principles outlined in Senate  standing order 23. The committee has identified scrutiny concerns in relation to the above instrument, and the committee seeks your advice in relation to this matter.

Drafting

Senate standing order 23(3)(e) requires the committee to scrutinise each instrument as to whether its drafting is defective or unclear.

Part 138 (Aerial Work Operations) Manual of Standards 2020 [F2020L01402] (the instrument) provides for the operational, procedural and safety risk management standards in relation to aerial work operations for aeroplanes and rotorcraft.

Sections 3.01 and 5.02 appear to be incomplete and use the word 'reserved' to indicate parts of the sections for which the law has not yet been provided for in the instrument. In addition to  these specific sections, the word 'reserved' is also used as a placeholder for the entirety of Chapters 10, 19 and 20.

The instrument's explanatory statement explains that section 3.01 is reserved for future use. The explanatory statement also explains that provisions in Chapter 5 are reserved for future safety management systems rules, and that Chapters 10, 19 and 20 are reserved for future provisions that may be required.

The committee is particularly concerned that the use of the placeholder ‘reserved’ in sections 3.01 and 5.02 may create uncertainty about the law, and notes that the explanatory statement does not adequately address why it is necessary for the content of these sections to be completed at an unspecified later date.

In light of the above, the committee requests your advice as to:
• why it is considered necessary and appropriate for the substantive terms of the law in sections 3.01 and 5.02 to be provided at a later, unspecified date;

• why it is considered necessary and appropriate for Chapters 10, 19 and 20 of the instrument to be reserved in case they are needed for future provisions, and
• whether a clearer explanation for the approach can be set out in notes to the relevant provisions of the instrument.

The committee's expectation is to receive a response in time for it to consider and report on the instrument while it is still subject to disallowance. Noting that the 15th sitting day after the instrument was tabled in the Senate is 15 February 2021, the committee has resolved to give a notice of a motion to disallow the instrument on that day as a precautionary measure to allow additional time for the committee to consider information received.

Noting this, and to facilitate the committee's consideration of the matters above, the committee would appreciate your response by 18 February 2021.

Finally, please note that, in the interests of transparency, this correspondence and your response will be published on the committee's website.

If you have any questions or concerns, please contact the committee's secretariat on
(02) 6277 3066, or by email to sdlc.sen@aph.gov.au. Thank you for your assistance with this matter.

Yours sincerely,

Connie

   
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MTF...P2