[Peetwo]

DLM 5 of 2023 and CASA's latest list of rule by exemption! - FDS..

Via the APH website: https://www.aph.gov.au/Parliamentary_Bus...on/Monitor

Extract page 6 of: https://www.aph.gov.au/-/media/Committee...A0B0EDAE94

Availability of independent merits review;
exemption from the operation of primary
legislation

1.17 Senate standing order 23(3)(i) requires the committee to consider whether an
instrument unduly excludes, limits, or fails to provide for the independent review of
decisions affecting rights, obligations, or interests. Where an instrument empowers a
decision-maker to make discretionary decisions, the committee expects those
decisions should be subject to merits review. Additionally, Senate standing order
23(3)(l) requires the committee to scrutinise each instrument as to whether it contains
amendments or modifications to primary legislation or exempts persons or entities
from the operation of primary legislation. Under this principle, the committee is
typically concerned with instruments that amend or modify the operation of primary
legislation or create an exemption from the operation of primary legislation.

1.18 Division 3, Subdivision A of the instrument sets out when an APS non-SES
employee is entitled to seek review of an action that relates to their employment and
identifies what actions are reviewable. Notably, subsection 37(2) of the instrument
provides that certain actions listed in the table in that subsection are not, or cease to
be, reviewable actions.

1.19 Section 37 of the instrument is made for the purposes of section 33(1) of the
Act. Section 33 of the Act, in part, provides:

(1) An APS employee is entitled to review, in accordance with the
regulations, of any APS action that relates to his or her APS employment.
However, an APS employee is not entitled to review under this section of
APS action that consists of the termination of the employee’s employment.

(2) The regulations may prescribe exceptions to the entitlement.
Note: For example, the regulations might provide that there is no
entitlement to review if the application for review is frivolous or vexatious.

1.20 In this regard, section 36 of the instrument sets out details about APS
employees' entitlement to review and section 37 sets out what APS actions are
reviewable actions. Specifically, subsection 37(2) operates to provide exemptions to
the general entitlement in section 33(1) of the Act that APS employees can seek review
of any APS action related to their employment.

1.21 Where an instrument provides that certain decisions are excluded from merits
review, the committee considers that the explanatory statement should
comprehensively justify the nature and scope of the relevant exclusions, including
whether it is appropriate to include them in delegated legislation. Further, in instances
where a decision is excluded from merits review, the relevant explanatory statement
should explain what characteristics of the decisions justify the exclusion by reference
to the Administrative Review Council's guide, What decisions should be subject to
merit review?9

1.22 In this case, the explanatory statement to this instrument does not provide a
justification for the exemptions created by subsection 37(2), nor does it provide an
explanation of their nature and scope, or why the exemptions are appropriate to be
included in delegated legislation.

1.23 The committee's longstanding view is that provisions which amend or create
exemptions to primary legislation should be included in primary rather than delegated
legislation. If the provisions are in delegated legislation, in this case enabled by
subsection 33(2) of the Act, the exemptions should operate no longer than strictly
necessary. The exemptions created by subsection 37(2) of the instrument do not
appear to be time-limited.

1.24 Additionally, some of the items listed in the table in subsection 37(2) are
drafted broadly and appear to include classes of decisions that would have the
capacity to substantially affect a person's rights and interests rather than specific
actions. For example, item 8 of the table provides that an '[a]ction relating to the
engagement of an APS employee' is not a reviewable decision. Neither the instrument
nor the explanatory statement appears to provide an explanation of the kinds of
decisions covered by item 8 or address why it is necessary to include them in delegated
legislation.

1.25 The committee therefore requests the minister's advice as to:

• the nature and scope of each of the APS actions listed in subsection 37(2) of
the instrument as non-reviewable actions;
• what characteristics of the actions listed in subsection 37(2) of the
instrument justify the exclusion of merits review, by reference to the
established grounds set out in the Administrative Review Council's guidance
document, What decisions should be subject to merit review?; and
• why it is considered appropriate to include these exemptions from the Act
in delegated rather than primary legislation.

With the above in mind, since the 6 March list of CAA & CASR was tabled (see above), the following are the legislative instruments and exemptions that have accumulated...  

Civil Aviation Act 1988—Civil Aviation Safety Regulations 1998—
Amendment of CASA EX66/21 (Low-level Rating) Instrument 2023—CASA
EX51/23 [F2023L00485].
Authorised Maintenance at Unapproved Locations (Part 145 Organisations)
Exemption 2023—CASA EX03/23 [F2023L00415].
CASR Subpart 99.B DAMP Requirements for Foreign Air Transport AOC Holders
Exemption 2023—CASA EX18/23 [F2023L00144]—Initial explanatory
statement.
CRS and SM CRS Document to Cover Specialist Maintenance by a Class D AMO
– Instrument 2023—CASA EX52/23 [F2023L00482].*
Multi-Engine Helicopters (CASA EX49/22) Amendment Instrument 2023—
CASA EX01/23 [F2023L00418].
Part 61 Flight Crew Licensing (Prescribed Aircraft and Type Ratings) (Edition 9)
Instrument 2023 [F2023L00428].
Part 91 MOS Amendment Instrument 2023 (No. 1) [F2023L00423].
Part 101 Manual of Standards (Miscellaneous Revisions) Amendment Instrument
2023 (No. 1) [F2023L00446].
Part 141 operators using a sole instructor – Exemption Instrument 2023—CASA
EX39/23 [F2023L00424].
Part 145 Exposition (CAR Maintenance Activities) Exemption 2023—CASA
EX30/23 [F2023L00152]—Initial explanatory statement.
Remotely Piloted Aircraft Operations Beyond Visual Line of Sight Exemption
2023—CASA EX27/23 [F2023L00422].
The Corryong Inter-Club Fly-in Instrument 2023—CASA EX45/23
[F2023L00425].
The Paragliding State of Origin Instrument 2023—CASA EX44/23
[F2023L00426].
Type Ratings Excluded from Part 142 Flight Training (Edition 7) Instrument
2023 [F2023L00419].

  
Please Scrutiny of Delegated Legislation Committee can you run a scathing eye over these legislative instruments along the lines of para 1.17 to 1.25 of the latest DLM?? 

MTF...P2