Page 2821 - Week 10 - Tuesday, 13 August 2013
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bill also clarifies the process around product approvals processes to ensure that the process for banning products is consistent with those in other jurisdictions.
In relation to the energy efficiency cost of living improvement amendments, they are simply about creating a regulation-making ability to outline eligible activities. However, in regard to the content of the eligible activities, I would like to take this opportunity to reflect the fact that insulation is still not defined as an eligible activity. I think that this is important. It is well recognised as one of the key measures that can be done that makes a difference to the quality of insulation of a property. It is recognised as one of the most cost effective. I look forward to seeing that brought onto the program as soon as is practicable.
Turning to the issues raised by the scrutiny committee, the committee raised two concerns that come about in a number of different clauses in the bill. The first is the community’s ability to know what the law is and, secondly, the delegation by the Assembly of a law-making power that it will subsequently have very little control over.
These issues arise at a number of points in the bill and the scrutiny report highlights each of these. Two examples include the reference to the Plumbing Code in clause 83. The Plumbing Code is adopted by this bill, as it is amended “from time to time” and the Energy Efficiency (Cost of Living) Improvement Act 2012 in Clause 77.
Clause 77 seeks to amend the section relating to eligible activities. In the Energy Efficiency Act, a determination of an eligible activity is a notifiable instrument, and is required to include a description of the activity, the minimum specifications for the performance of the activity, the abatement factor for the activity and the time at which the activity is taken to be completed.
The provisions in this bill in clause 77 allow for a determination to “apply, adopt or incorporate a law of another jurisdiction or instrument as in force from time to time”, and make it clear that provisions in the Legislation Act around notifying changes to any instruments will not apply to eligible activities.
In summary, an eligible activity may include reference to an instrument that the Assembly is not notified of, cannot see and cannot change. This is, of course, problematic both because the community should be able to easily inform itself of the law and, secondly, because it is the Assembly’s role to make laws and we should be very wary about delegating that function in any circumstance, particularly so when we have no effective ongoing control of what the delegated law will be.
However, noting the Greens’ concern about this type of delegation or the absence of publication requirements, in the particular circumstances presented in the bill I accept that the delegation and notification provisions are the most appropriate option available to us. Firstly, the instruments include documents that are highly technical, and there are hundreds of them. The documents in the instruments often cross-refer to other documents, which are developed through national processes. It would simply be impractical and extraordinarily time consuming for the Assembly to consider each and every variation.
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