2002- 20 20 0 3 2 - 20 200 0 4 3

 

 

 

 

 

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

 

 

 

 

 

 

HOUSE OF REPRESENTATIVES

 

 

 

 

 

SEX DISCRIMINATION AMENDMENT (TEACHING PROFESSION) BILL 2004 LEGISLATIVE INSTRUMENTS (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2003

 

 

 

 

 

EXPLANATORY MEMORANDUM

 

 

 

 

 

 

 

 

 

 

(Circulated by authority of the Attorney-General,

the Honourable Philip Ruddock Daryl Williams AM QC MP)

 

 

SEX DISCRIMINATION AMENDMENT

(TEACHING PROFESSION) BILL 2004

L L EGISLATIVE INSTRUMENTS (TRANSITIONAL PROVISIONS AND CONSEQUENTIAL AMENDMENTS) BILL 2003

 

OUTLINE

 

The purpose of the Bill is to facilitate measures to a ddress the problem of imbalance in the number of male and female school teachers, and the effect of that imbalance on the education of male school students in particular.

 

The existing provisions of the Sex Discrimination Act 1984 which prohibit discrimination on the basis of sex, including in education, do not allow positive discrimination to redress the gender imbalance in the teaching profession, particularly the shortage of males in pre-school and primary school teaching.

 

This Bill would amend the Sex Discrimination Act 1984 to permit the provision of scholarships to persons of one sex in relation to courses in school teaching in Australia to redress gender imbalance in teaching .

This Bill deals with certain transitional and consequential matters arising from the enactment of the Legislative Instruments Act 2003 (the 2003 Act).  These matters include:

 

·             applying the 2003 Act to rules of court;

·             repealing sections 46 and 46A of the Acts Interpretation Act 1901 and replacing them with provisions dealing with the construction and disallowance of non-legislative instruments;

·             repealing sections 48, 48A, 48B, 49, 49A and 50 of the Acts Interpretation Act (as these matters will be addressed by the 2003 Act); ; and

·             repealing the Statutory Rules Publication Act 1903 .

 

While the repeal of sections 48 to 50 of the Acts Interpretation Act will mean that existing references to those provisions in Commonwealth legislation will be redundant, this Bill does not purport to amend all Commonwealth legislation to remove those references.  The operation and subject matter of th e repealed ose   provisions will be covered by the 2003 Act where they relate to legislative instruments, and by the Acts Interpretation Act as amended by this Bill where they relate to non-legislative instruments, thereby preserving the status quo.

 

There are, however, a number of pieces of Commonwealth legislation that modify the operation of sections 48 to 50 of the Acts Interpretation Act in relation to instruments made under that legislation.  Where this is the case, this Bill continues that modification by transitional provisions or by making consequential amendments to the enabling legislation so that it refers to the relevant part of the 2003 Act or the Acts Interpretation Act.

 

The Bill includes a retrospective regulation - making power in relation to transitional issues raised by thi s e Bill (including the need to address any saving or application provisions).

 

 

F inancial impact statement INANCIAL IMPACT STATEMENT

 

 

The amendments made by the Sex Discrimination Amendment (Teaching Profession) Bill Legislative Instruments (T 2004 ransitional P rovisions and Consequ en tial Amendments) Bill 2003 have no significant financial impact.

 

The Financial Impact issues associated with the introduction of the Legislative Instruments Act 2003 and the establishment of the Federal Register of Legislative Instruments are set out in the Explanatory Memorandum for the Legislative Instruments Act 2003 .

NOTES ON CLAUSES

 

Part 1 - Preliminary

 

Clause 1: Short title

 

Th is clause provides that the Act will be called the e short title of this Act is the Sex Discrimination Amendment (Teaching Profession) Act 2004 Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 .

 

Clause 2: Commencement

 

This clause provides that clauses 1, 2 and 3 of the Act Bill and any other provision tha will commence t is not specifically mentioned in this commencement provision, commence on the day on which i t he Act receives the Royal Assent.

 

Clause 3: Schedule(s)

 

This clause provides that each Act that is specified in a Schedule is amended as set out in that Schedule.

 

Schedule 1 - Amendments

 

Sex Discrimination Act 1984

 

Item 1 of Schedule 1 inserts a new section 38A in the Sex Discrimination Act 1984.

 

Divisions 1 and 2 of Part 2 of the Sex Discrimination Act 1984 contain prohibitions on discrimination in work and other areas, including education.  Division 4 of Part 2 of the Act contains exemption s .

 

The purpose of proposed section 38A is to permit measures for achieving a gender balance in the teaching profession.  Section 38A would establish that a person may offer scholarships for persons of a particular gender in respect of participation in a teaching course.   Section 38A would apply only if the purpose is to redress a gender imbalance in teaching, that is, an imbalance in the ratio of male to female teachers in schools in Australia .   Section   38A would permit region or sector specific initiatives.

 

The word ‘ person ’ is defined in section 22 of the Acts   Interpretation Act 1901 as including a natural person, a body corporate and a body politic.

 

A scholarship is defined in subsection 38A(3) to include assistance or support that is similar to a scholarship.   This definition is intended to avoid an interpretation of ‘scholarship’ which might artificially narrow the scope of the provision.

 

A teaching course is defined in subsection 38A(3) to mean a course of study that leads to a qualification for teaching students at schools in Australia.

 

This means that educational authorities and others can implement strategies for encouraging male teachers into the profession in a manner consistent with the Sex   Discrimination Act 1984 . This clause also provides that clauses 4 and 5, which contain transitional provisions, and Schedule 1, which contains consequential amendments to other legislation, commence immediately after the commencement of sections 3 to 62 of the Legislative Instruments Act 2003 (the 2003 Act).  Those sections of the 2003 Act contain the provisions establishing regimes for registering, tabling, disallowance and sunsetting of legislative instruments.  

 

Clause 3: Schedule(s)

 

This clause provides that each Act that is specified in a Schedule is amended as set out in that Schedule.

 

Part 2 - Transitional provisions

 

The purpose of this Part is to deal with the situation where legislation commences after the 2003 Act and which purports to apply the Statutory Rules Publication Act 1903 or section 46A or subsection 48(2)   of the Acts Interpretation Act to instruments made under it.  The Part provides for the translation of those instruments to the 2003 Act notwithstanding the repeal of the Statutory Rules Publication Act and section 46A and subsection 48(2) of the Acts Interpretation Act.  The Part also covers translating to the 2003 Act any legislation that modifies the operation of subsection 48(2) of the Acts Interpretation Act and translating to the Acts Interpretation Act (as amended by this Bill) any legislation that contains disallowance provisions for non-legislative instruments.

 

Clause 4: Transitional Provisions

 

Sub This clause 4(1) provides that where legislation, which is introduced into Parliament before the commencement of the 2003 Act but which commences either on the same day as or after that Act, provides that an instrument be published as a statutory rule under the Statutory Rules Publication Act, then that instrument is to be taken to be an instrument referred to in paragraph 6(b) of the 2003 Act.  This means that the instrument is a legislative instrument for the purposes of the 2003 Act notwithstanding the repeal of the Statutory Rules Publication Act. 

 

Sub The clause 4(2) provides for a similar translation to the 2003 Act for instruments made under legislation (that has been introduced but that has not commenced) that expressly provides that an instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901.  Those instruments will be taken to be legislative instruments for the purposes of the 2003 Act.

 

This clause Subclause 4(3) also   deals with the situation where legislation, which is introduced into Parliament before the commencement of the 2003 Act but which commences either on the same day as or after that Act, modifies the effect of subsection 48(2) of the Acts Interpretation Act such that delegated legislation made under that legislation may commence retrospectively notwithstanding its adverse effect on rights.  The effect of the clause is that references to subsection 48(2) are to be taken to be references to subsection 12(2) of the 2003 Act thereby maintaining the status quo. 

 

Subclause 4(4) provides tr ansitional provisions for instruments that are not covered by the 2003 Act and which are disallowable via the application of Part XII of the Acts I n terpret a tion Act (with or without modification).   This includes legislative instruments that are expressly excluded from the operation of the 2003 Act as well as instrument s that a re non-legislative in character .  ( The subclause expressly excludes instruments that are declared to be disallowable instruments for the purposes of section 46A of the Acts I n terpreta t ion Act. There is no requirement to address these instruments in the transitional provisions because th ey are legislative instruments for the purposes of the 2003 Act (see subparagraph 6( d)(i) of that Act ) and none are expressly excluded from the 2003 Act.) covers non-legislative instruments made on or after the commencing day, under legislation in force immediately before the commencing day, where there is provision for those instruments to be disallowable (but not under section 46A of the Acts Interpretation Act) by the application, with or without modification, of the provisions of Part XII of the Acts Interpretation Act.  The

 

The effect of this subclause is that such instruments , which are not legislative instruments for the purposes of the 2003 Act but which are disa ll ow a ble under the terms of the enabling legislation,  will be disallowable instruments for the purposes of new section 46B of the Acts Interpretation Act .  To ensure that the status quo is maintained, the subclause also  and provides that section 46B may be for such modifi ed cations of the operation of that section as are necessary to ensure that it operates in the same way that the the effect of the applied provisio provisions ns of Part XII of the Acts Interpretation Act 1901   operated. is preserved.     This subclause is necessary to ensure that such non-legislative instruments are c c ontinued to be subject to a disallowance regime , as was intended by the enabling legislation which was made before prior to the commencement of the 2003 Act.

 

Clause 5: Transitional Regulations

 

This clause allows the Governor-General to make regulations in relation to matters of a transitional nature which, provided they are made within a year of the commencement of this clause, may commence retrospectively (but not earlier than the commencement of this clause).

 

Schedule 1 - Amendments and repeals of other legislation

 

Aboriginal and Torres Strait Islander Commission Act 1989

 

Items 1 and 2

 

These items repeal subclause 28(2) of Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act) and insert a note referring to sections in the Federal Court of Australia Act 1976 .

 

Subclause 28(1) provides that Federal Court judges may make rules of court in relation to the determination of electoral disputes under the ATSIC Act.  Subclause 28(2) provides that section 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act apply to those rules of court as if references in those sections to regulations were references to rules of court.  This had the effect of applying the tabling and disallowance regime for regulations to such r Rules as if they were regulations.  Those provisions of the Acts Interpretation Act will be repealed (see item 7) and replaced with equivalent provisions in the 2003 Act.

 

A consequential amendment to the Federal Court Act (see items 23 and 24) will apply the majority of the provisions of the 2003 Act to all rules of court made by Federal Court judges; therefore there is no requirement for a provision in the ATSIC Act to the same effect.  As a result, subclause 28(2) of Schedule 4 of the ATSIC Act is no longer required, but is replaced by a note referring to the Federal Court Act provisions. 

 

Acts Interpretation Act 1901

 

Item 3

 

This item repeals subsection 4(6) of the Acts Interpretation Act, which deals with the application of section 4 of that Act (exercise of certain powers between passing and commencement of an Act) to rules, regulations and by-laws, and replaces it with a new provisions which will apply section 4 of the Acts Interpretation Act to all instruments of a legislative character.  This recognises that not all instruments of a legislative character are rules, regulation or by-laws, and that there may be a need to make such instruments after the enactment of the enabling legislation but before its commencement.

 

Item 4

 

This item amends the definition of Proclamation in section paragraph 17(j) of the Acts Interpretation Act, to include a Proclamation by the Governor-General that is registered on the Federal Register of Legislative Instruments in addition to those published in the Gazette.  This means that a Proclamation may be gazetted or registered; it need not be both gazetted and registered thereby avoiding unnecessary duplication in the notification of making of Proclamations. Pro clamations are legislative instruments for the purpose of the 2003 Act (see paragraph 6( e ) of the 2003 Act ) and therefore, after the commencement of the 2003 Act, will be registered on the Federal Register of Legislative Instruments.  The definition of Proclamation needs to reflect this manner of publication.

 

Item 5

 

This item makes a consequential amendment to the heading to Part XI of the Acts Interpretation Act by replacing the reference to "Instruments and resolutions" with a reference to "Non-legislative instruments and resolutions".  The amendment reflects the change in scope of the Part: provisions dealing with legislative instruments will be in the 2003 Act and provisions dealing with non-legislative instruments will be in cluded in this part of the Acts Interpretation Act as amended by this Bill that relate to legislative instruments are moved to the 2003 Act and new provisions for non-legislative instruments are inserted   (see item 6).

 

Item 6

 

This item repeals sections 46 and 46A of the Acts Interpretation Act, which deal with the construction of rules, regulations and by-laws and the application of certain provisions of the Acts Interpretation Act to disallowable instruments, and replaces them with new sections 46, 46AA and 46B which relate to non-legislative instruments.  The amendments are consequential on the commencement of the 2003 Act, which deals with legislative instruments.

 

46 Construction of instruments

 

Proposed section 46 deals with the construction of instruments that are not legislative instruments for the purposes of the 2003 Act and which are not rules of court. 

 

Proposed subsection 46(1) provides that the Acts Interpretation Act will apply to a non-legislative instrument as if it were an Act and as if each provision of the instrument were a section of an Act; that expressions in the instrument have the same meaning as within the enabling legislation; and instruments are not to exceed the power of the authority.  Proposed subsection 46(2) provides that where the making of an instrument exceeds the power conferred, then to the extent that the instrument is within power it is valid.  Proposed subsection 46(3) provides that where instruments require identification of matters or things those matters or things may be identified by referring to a class or classes.

 

The equivalent provision for legislative instruments is proposed section 13 of the 2003 Act.

 

46AA Prescribing matters by reference to other instruments

 

Proposed section 46AA deals with instruments, which are not legislative instruments for the purposes of the 2003 Act or rules of court, and which incorporate material by reference. 

 

Proposed section 46AA enables non-legislative instruments to make provision for matters by applying, adopting or incorporating (with or without modification) the provisions of any Commonwealth Act, or disallowable legislative instrument as in force at the time of incorporation or from time to time.  The clause also enables non-legislative instruments to make provision for matters by applying, adopting or incorporating (with or without modification) the provisions of any other instrument or writing which is in force at the time of incorporation.  Subclause 46(2) makes it clear that unless the enabling legislation allows instruments in this latter category to be incorporated "from time to time", then they may only be incorporated in the form that exists as at the date of incorporation.

 

The equivalent provision for legislative instruments is proposed section 14 of the 2003 Act.

 

Section 46B - Disallowable non-legislative instruments

 

Proposed section 46B deals with commencement and disallowance of non-legislative instruments.  Proposed section 46B standardises the method of determining when a non- legislative instrument commences with that used for non-legislative instruments. The equivalent provision for legislative instruments is section 12 of the 2003 Act.

 

Proposed subsection 46B(1) defines the instruments to which the section applies.  This includes instruments that are not legislative instruments for the purposes of the 2003 Act or rules of court, and that are declared by the legislation under which they are made to be a disallowable instrument for the purposes of this section.

 

Proposed subsection 46B(2) provides the mechanism for determining the commencement day of such an instrument.  It provides that an instrument or a provision of an instrument takes effect from a date specified in the instrument (this may be by reference to the commencement of an Act or a provision of an Act, or of the occurrence of an event).  If no specification is made then the instrument will take effect from the first moment of the day next following the day when it is notified in the Gazette.

 

Proposed subsection 46B(3) provides that if an instrument, which would adversely impact on the rights of a person other than the Commonwealth or an authority of the Commonwealth, has no effect if it would otherwise take effect before the date when it is notified in the gazette.  However, under proposed subsection 46B(4), an instrument is able to operate retrospectively and have an adverse impact on rights if the enabling legislation disapplies the effect of proposed subsections 46B(2) and (3).

 

Proposed subsections 46B(5)-(8) refer to requirements for the gazettal and sale of instruments to which subsection 46B applies. 

 

Proposed subsections 46B(9)-(10) refer to tabling requirements for instruments to which subsection 46B applies.

 

Proposed subsection 46(11) provides that Part 5 (Parliamentary scrutiny of legislative instruments) of the 2003 Act will apply to an instrument to which subsection 46B applies in the same way as to legislative instruments, except the provisions in the 2003 Act which relate to the tabling of legislative instruments (sections 38, 39 and 40).  Proposed subsections 46B(9)-(10) refers to the tabling requirements for instruments to which subsection 46B applies.

 

 

Item 7

 

This item repeals the following section from the Acts Interpretation Act:

·                         sections 48 (Regulations) ; ,

·                         48A (Regulations not to be re-made while required to be tabled) ; ,

·                         48B (Regulations not to be re-made while subject to disallowance) ; ,

·                         49 (Disallowed regulations not to be re-made unless resolution rescinded or House approves) ; ,

·                         49A (prescribing matter by reference to other ins truments) ; and

·                         50 (Effect of repeal of regulations) . of the Acts Interpretation Act. 

 

The sections relate to regulations, in particular the requirements for gazettal, tabling, disallowance, and the effect of repeal of regulations.  Proposed sections 46, 46AA and 46B of the Acts Interpretation Act (see item 6) will address these issues for non-legislative the instruments while the 2003 Act contains the equivalent provisions for legislative instruments. purposes of instruments that are not legislative instruments for the purposes of the 2003 Act, or rules of court.  In relation to legislative instruments, the repealed provisions are replaced equivalent provisions in the 2003 Act.

 

Air Navigation Act 1920

 

Item 8

 

This item repeals section 28 of the Air Navigation Act 1920 , which provides that instruments made under that Act, or under the regulations, relating to aviation security are not legislative instruments for the purposes of the Legislative Instruments Act 1995 (which never came into existence).  Rather than have instruments exempted from the 2003 Act in other legislation, exemptions are contained within the 2003 Act itself.  The exemption is in item 1 of the table in section 7 of the 2003 Act.  The exemption is for instruments (other than regulations and other instruments that, immediately before the commencement of the 2003 Act are disallowable) made under the Air Navigation Act 1920 , or under the regulations made under that Act, relating to aviation security.

 

Amendments Incorporation Act 1905

 

Item 9

 

This item adds a new section to the Amendments Incorporation Act 1905 consequential on the repeal of the Statutory Rules Publication Act 1903 , in particular, section 6A of that Act.  Section 6A deals with the Government Printer's obligations relating to updating reprints. New section 4 of the Amendments Incorporation Act will maintain the effect of the existing regime by requiring that if the Government Printer reprints a legislative instrument, the instrument must be reprinted as amended, including making reference to the amending legislative instrument or Act in the margin, footnote or endnote to the reprint.

 

Australian Capital Territory (Planning and Land Management) Act 1988

 

Item 10

 

This item amends section 52 of the Australian Capital Territory (Planning and Land Management) Act 1988 , which provides that paragraph 46(a) of the Acts Interpretation Act does not apply to the Territory Plan or an instrument made, granted or issued under paragraph 29(1)(b) which relates to estates in Territory land.  The effect of disapplying paragraph 46(a) is that words used in the Territory Plan or other instrument may have a different meaning to that used in the enabling Act, recognising the different responsibilities between the Commonwealth Government and the Legislative Assembly for the Australia Australian Capital Territory.

 

The proposed amendment will maintain the status quo by disapplying both new paragraph 46(1)(a) of the Acts Interpretation Act (to the extent that the instruments are non-legislative in character) and proposed paragraphs 13(1)(a) and (b) of the 2003 Act (to the extent that the instruments are legislative in character).

 

Australian Capital Territory (Self-Government) Act 1988

 

Item 11

 

This item amends section 33 of the Australian Capital Territory (Self-Government) Act 1988 , which provides that paragraph 46(a) of the Acts Interpretation Act does not apply to an enactment; a subordinate law; or an instrument required by the Australian Capital Territory (Self-Government) Act 1988 to be published in the Territory Gazette. The effect of disapplying paragraph 46(a) is that words used in these instruments may have a different meaning to that used in the enabling Act, recognising the different responsibilities between the Commonwealth Government and the Legislative Assembly for the Australia n Capital Territory.

 

The proposed amendment will maintain the status quo by disapplying both new paragraph 46(1)(a) of the Acts Interpretation Act (to the extent that the instruments are non-legislative in character) and proposed paragraphs 13(1)(a) and (b) of the 2003 Act (to the extent that the instruments are legislative in character).

 

Australian Securities and Investments Commission Act 2001

 

Item 12

 

This item repeals section 5A of the Australian Securities and Investments Commission Act 2001 , which freezes the Acts Interpretation Act in its application to the ASIC Act as at 1 November 2000.  This was needed to prevent any unintended amendments to the ASIC Act (brought about by changes to the Acts Interpretation Act) in recognition of the agreement between the States and the Commonwealth in relation to the ASIC Act.

 

The proposed amendment will insert a new section 5A in the ASIC Act to provide that the Acts Interpretation Act as amended by this Bill will apply to the ASIC Act as at the date of commencement of this Bill, but any later amendments to the Acts Interpretation Act will not apply.

 

Commonwealth Electoral Act 1918

 

Items 13 and 14

 

These items repeal subsection 375(2) of the Commonwealth Electoral Act 1918 and inserts a note referring to section 86 of the Judiciary Act 1903 (which is the general power for Justices of the High Court to make rules of court).

 

Subsection 375(1) of the Commonwealth Electoral Act provides that the Justices of the High Court may make rules of court in relation to the determination of electoral disputes.  Subsection 375(2) provides that sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act apply to those rules of court as if references in those sections to regulations were references to rules of court.  This had the effect of applying the tabling and disallowance regime for regulations to such rules as if they were regulations.  Those provisions of the Acts Interpretation Act will be repealed (see item 7) and replaced with equivalent provisions in the 2003 Act.

 

A consequential amendment to the Judiciary Act (see items 29 and 30) will apply the 2003 Act to all rules of court made by Justices of the High Court; therefore there is no requirement for a provision in the Commonwealth Electoral Act to the same effect.  As a result, subsection 375(2) of the Commonwealth Electoral Act is no longer required, but is replaced by a note cross-referring to the Judiciary Act provisions. 

 

Corporations Act 2001

 

Item 15

 

This item repeals section 5C of the Corporations Act 2001 , which freezes the Acts Interpretation Act in its application to the Corporations Act as at 1 November 2000.  This was needed to prevent any unintended amendments to the Corporations Act (brought about by changes to the Acts Interpretation Act) in recognition of the agreement between the States and the Commonwealth in relation to the Corporations Act.

 

The proposed amendment will insert a new section 5C in the Corporations Act to provide that the Acts Interpretation Act as amended by this Bill will apply to the Corporations Act as at the date of commencement of this Bill, but any later amendments to the Acts Interpretation Act will not apply.

 

Criminal Code Act 1995

 

Item 16

 

This item repeals paragraph 9.4(2)(c) of the Criminal Code and substitutes a new paragraph.  Under the repealed provision, a person had a defence to a criminal charge if the offence was made or varied by subordinate legislation that was not publicly available.  The new provisions recognise the 2003 Act and provide that the defence will only be available if , at the time of the conduct, the subordinate legislation has not been made available to the public (by means of being is not registered under the 2003 Act or otherwise) and or has not is not otherwise been made available to publicly available to persons likely to be affected by it in such a way that the person where those persons would have become aware of its contents by exercising due diligence.  That is, ignorance of the law will not be an excuse in relation to subordinate legislation that is publicly available. 

 

Customs Act 1901

 

Item 17

 

This item amends section 269SC of the Customs Act 1901 by adding a new subsection (8).  Subsections 269SC(6) and 269SC(7) provide that tariff concession orders are to be revoked retrospectively in certain circumstances.  New subsection 269SC(8) preserves the operation of these provisions, notwithstanding section 12 of the 2003 Act which provides against any retrospective commencement that has an adverse impact on a person’s rights.

 

 

 

Item 18

 

This item amends section 269SD of the Customs Act 1901 by adding a new subsection (6).  Section 269D provides for the revocation of tariff concession orders retrospectively in certain circumstances.  New subsection 269SD(6) preserves the operation of these provisions, notwithstanding section 12 of the 2003 Act which provides against any retrospective commencement that has an adverse impact on a person’s rights.

 

Family Law Act 1975

 

Items 19 to 21

 

These items repeal section 26E and subsections 37A(14) and 123(2) of the Family Law Act 1975 (which deal with the application of the Acts Interpretation Act to rules of court) and replace them with new provisions dealing with the application of the majority of the provisions of the 2003 Act to those rules.

 

Section 9 of the 2003 Act provides that rules of court are not legislative instruments for the purposes of the LIB.   However, the provisions inserted by these items provide that, with the exception of certain provisions, the 2003 Act will apply to rules of court.  A note in the 2003 Act clarifies that rules of court are treated as if they were legislative instruments by express amendment of the legislation providing for them to be made. 

 

The provisions of the 2003 Act that will not apply to rules of court are: sections 5, 6 and 7 (definition of legislative instrument); sections 10 and 11 (Attorney-General may certify whether an instrument is a legislative instrument or not); and section 16 (measures to achieve high drafting standards for legislative instruments).  Therefore, rules of court will be required to be lodged on the Register; will be subject to appropriate consultation requirements (as determined by the rule-maker) where they are likely to have a direct, or a substantial indirect, effect on business or restrict competition; will be subject to disallowance (as they are presently) and sunsetting.

 

Notwithstanding the fact that section 16 of the 2003 Act will not apply to the rules of court, nevertheless, the Attorney-General’s Department may provide assistance in drafting of those rules.

 

Item 22

 

This item inserts a regulation making power so that the application of the 2003 Act to rules of court may be modified except in relation to the application of Part 5 of that Act.  That is, the regulations cannot alter the way in which the parliamentary scrutiny provisions of the 2003 Act apply to rules of court but the regulations may make other modifications.

 

Federal Court of Australia Act 1976

 

Item 23

 

This item repeals subsection 59(4) of the Federal Court of Australia Act 1976 (which deals with the application of the Acts Interpretation Act to rules of court) and replaces it with a new provision dealing with the application of the majority of the provisions of the 2003 Act to those rules.

 

See discussion for items 19 to 21 for an explanation of the amendment.

 

Item 24

 

This item inserts a regulation making power to so that the application of the 2003 Act to the rules of court may be modified except in relation to the application of Part 5 of that Act.  That is, the regulations cannot alter the way in which the parliamentary scrutiny provisions of the 2003 Act apply to rules of court but the regulations may make other modifications.

 

Federal Magistrates Act 1999

 

Item 25

 

This item repeals subsection 81(3) of the Federal Magistrates Act 1999 (which deals with the application of the Acts Interpretation Act to rules of court) and replaces it with a new provision dealing with the application of the 2003 Act to those rules.

 

See discussion for items 19 to 21 for an explanation of the amendment.

 

Item 26

 

This item inserts a regulation making power so that the application of the 2003 Act to the rules of court may be modified except in relation to the application of Part 5 of that Act.  That is, the regulations cannot alter the way in which the parliamentary scrutiny provisions of the 2003 Act apply to rules of court but the regulations may make other modifications.

 

Income Tax Assessment Act 1936

 

Item 27

 

This item replaces subsection 109N(4) of the Income Tax Assessment Act 1936, which provides that Regulations made for the purposes of subsection (2) may apply, adopt or incorporate a rate published in an instrument after they are made or take effect, or a rate contained in an instrument from time to time, despite subsection 49A(1) of the Acts Interpretation Act; and paragraph 11(b) of the Legislative Instruments Act 1998 (which never commenced).

 

The proposed amendments will maintain the status quo by ensuring that the Regulations may continue to incorporate instruments from time to time despite provisions in any other Act.

 

International Organisations (Privileges and Immunities) Act 1963

 

Item 28

 

This item replaces subsections 13(3) and 13(4) of the International Organisations (Privileges and Immunities) Act 1963, which deal with the commencement of written determinations and the application of the Acts Interpretation Act and Legislative Instruments Act 1997 (which never commenced) to those determinations.

 

The proposed amendment will maintain the status quo by preserving the commencement regime (notwithstanding the 2003 Act) and providing that the determination is a legislative instrument for the purposes of the 2003 Act.

 

Judiciary Act 1903

 

Item 29

 

This item adds new subsections to section 86 of the Judiciary Act 1903 (which deals with the Justices of the High Court making rules of court) to apply the majority of the provisions of the 2003 Act to those rules.

 

See discussion for items 19 to 21 for an explanation of the amendment.

 

Item 30

 

This item repeals section 87 of the Judiciary Act 1903, which applied the Acts Interpretation Act to rules of court made under section 86 of the Judiciary Act.  Section 87 is no longer required as the amendment proposed by item 29 will apply the equivalent provisions of the 2003 Act to those rules of court.

 

Item 31

 

This item inserts a regulation making power so that the application of the 2003 Act to the rules of court may be modified except in relation to the application of Part 5 of that Act.  That is, the regulations cannot alter the way in which the parliamentary scrutiny provisions of the 2003 Act apply to rules of court but the regulations may make other modifications.

 

Public Service Act 1999

 

Item 32

 

This item repeals subsection 42(4) of the Public Service Act 1999, which provided that the Public Service Commissioner’s Directions are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act, and replaces it with a provision that provides that the Commissioner’s Directions are disallowable non-legislative instruments for the purposes of new section 46B of the Acts Interpretation Act (see item 6). 

 

This maintains the status quo with respect to those Directions . and recognises that they are not legislative instruments for the purposes of the 2003 Act.

 

Statutory Rules Publication Act 1903

 

Item 33

 

This item repeals the Statutory Rules Publication Act 1903.  That Act provided for the way in which rules, regulations and by-laws were printed, numbered, sold, and for the incorporation of amendments in reprints.  As the 2003 Act now covers all legislative instruments, including rules, regulations and by-laws, this Act is no longer required. 

 

Sydney Airport Curfew Act 1995

 

Item 34

 

This item amends subsections 15(6) and 20(7) and paragraphs (a) and (b) of clause 1 of the Schedule 1  of the Sydney Airport Curfew Act 1995, which contain references to paragraph 16(1)(a) of the Legislative Instruments Act 1995 (which never commenced).  In order to ensure that the consultation regime in the Sydney Airport Curfew Act continues to operate as intended and to avoid ambiguity on the commencement of the 2003 Act, the proposed amendments delete the references to the non-existent 1995 Act. 

 

Veterans’ Entitlements Act 1986

 

Item 35

 

This item makes a consequential amendment to paragraph 196W(3)(a) of the Veterans’ Entitlements Act 1986, following the repeal of section 48 of the Acts Interpretation Act. 

 

Paragraph 196W(3)(a) provided that if the Specialist Medical Review Council had been asked to review the contents of a Statement of Principles, the Council may carry out a review only if the period within which the Statement of Principles may be disallowed under section 48 of the Acts Interpretation Act has ended.  The new provision provides that the Council may carry out the review provided that the period within which the Statement of Principles may be disallowed under section 42 of the 2003 Act has ended.

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þSCHEDULE 4 - AMENDMENTS OF OTHER LEGISLATION Aboriginal and Torres Strait Islander Commission Act 1989 207 Subclause 28(1)of the Aboriginal and Torres Strait Islander Commission Act provides for the making of Rules of Court in relation to the determinati

þSCHEDULE 4 - AMENDMENTS OF OTHER LEGISLATION Aboriginal and Torres Strait Islander Commission Act 1989 207 Subclause 28(1)of the Aboriginal and Torres Strait Islander Commission Act provides for the making of Rules of Court in relation to the determinati

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SCHEDULE 4 - AMENDMENTS OF OTHER LEGISLATION Aboriginal and Torres Strait Islander Commission Act 1989 207 Subclause 28(1)of the Aboriginal and Torres Strait Islander Commission Act provides for the making of Rules of Court in relation to the determinati

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Attorney-General's Department

SCHEDULE 4 - AMENDMENTS OF OTHER LEGISLATION Aboriginal and Torres Strait Islander Commission Act 1989 207 Subclause 28(1)of the Aboriginal and Torres Strait Islander Commission Act provides for the making of Rules of Court in relation to the determinati

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Section 38A is in gender neutral terms and would allow discrimination in fa v our of females if a gender imbalance in favour of males were to emerge generally or in a region or sector.