Principle (f): Access and use

Overview

Senate standing order 23(3)(f) requires the committee to scrutinise each instrument as to whether it, and any document it incorporates, may be freely accessed and used. Under this principle, the committee will typically be concerned with instruments which incorporate documents that:

are not freely accessible; or
are subject to copyright.

Incorporation by reference

In some cases, legislative instruments may incorporate other documents by reference. A document is likely to be incorporated by a legislative instrument where that document is necessary to interpret, apply or otherwise use that instrument. Examples of documents which are frequently incorporated include guidelines, standards and codes of practice.

Documents can be incorporated by reference in the following ways:

as they exist at a fixed point in time (for example, at the commencement of the instrument, or another specified date); or
as in force from time-to-time, which allows any future version of the document to be automatically incorporated (noting this manner of incorporation must be authorised by the enabling legislation).

Where an instrument incorporates a document by reference, the explanatory statement should:

clearly state that the document is incorporated and identify that document with sufficient specificity to make it clear which document is incorporated (e.g., name and edition, if applicable);
indicate how the document may be obtained, including whether it can be freely accessed and used;
address the manner of incorporation (e.g., incorporated as at a certain date or as it exists from time-to-time); and
indicate the legislative authority relied upon to incorporate the document from time-to-time (if applicable).

Free access and use

All documents incorporated by reference should be available to the public free of charge. Where an instrument incorporates a document, the explanatory statement should identify where the document can be freely accessed. This may be by:

identifying a website where the document may be viewed or downloaded free of charge;
noting that the document may be accessed free of charge at specified public libraries; or
noting that the instrument may be available for viewing at specified offices (e.g. departmental or agency offices).

Documents subject to copyright

Legislative instruments or any incorporated documents should not be subject to copyright as this may inhibit the capacity of people to access and use the law. However, if it is necessary for copyright to apply, the committee expects the material to be available to the public free of charge, without the risk of breaching copyright. Accordingly, the explanatory statement to the instrument should address the following matters:

why it is considered necessary to use copyrighted material in a legislative instrument or incorporated document;
how the use of copyrighted material may impact the ability of members of the public to access and understand the law; and
whether individuals can access the material in other ways, such as by viewing the instrument or document at a specified location or by appointment.

Explanatory statement checklist

The following checklist summarises what should be included in an instrument's explanatory statement under scrutiny principle (f).

Incorporation of documents and free access and use

If the instrument incorporates a document, the explanatory statement should:

clearly state that a document is incorporated and identify it with sufficient specificity (e.g., name and edition, if applicable);
indicate how the document may be obtained, including whether it can be freely accessed, for example, online, at specified public libraries or made available for viewing at specified offices;
address the manner of incorporation (e.g., incorporated as at a certain date or as it exists from time-to-time); and
indicate the legislative authority relied upon to incorporate the document from time-to-time (if applicable).

Documents subject to copyright

If the instrument or any incorporated document is subject to copyright, the explanatory statement should explain:

the necessity of using copyrighted material in the instrument;
how the use of copyrighted material may impact the ability of members of the public to access and understand the law;
and how individuals can access the document in other ways (e.g., viewing the instrument or document at a specified location or by appointment).