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Legislative Instruments Bill 1996 [No. 2]

Part 1 P reliminary

   

1   Short title

                   This Act may be cited as the Legislative Instruments Act 1996 .

2   Commencement

             (1)  Subject to subsections (2) and (3), this Act commences on a day to be fixed by Proclamation.

             (2)  The day fixed by Proclamation for the purposes of subsection (1) must be the first day of a month of a year.

             (3)  If this Act does not commence within 6 months after the day on which this Act receives the Royal Assent, it commences on the first day of the first month:

                     (a)  that is a month of a year; and

                     (b)  that occurs after the end of that 6 months.

3   Schedule 4

                   Subject to section 2, each Act that is specified in Schedule 4 to this Act is amended or repealed as set out in the applicable items in the Schedule, and any other item in the Schedule has effect according to its terms.

4   Definitions

             (1)  In this Act, unless the contrary intention appears:

ADJR Act means the Administrative Decisions (Judicial Review) Act 1977 .

commencing day means the day on which this Act commences.

Corporations Law of the Capital Territory means the Corporations Law of the Australian Capital Territory and the Jervis Bay Territory.

enabling legislation , in relation to a legislative instrument, means the Act or legislative instrument, or the part of an Act or of a legislative instrument, that authorises the making of the legislative instrument concerned.

explanatory statement , in relation to a legislative instrument, means the statement prepared by the rule-maker in accordance with the requirements of section 44.

government business enterprise means a body whose name is included in Schedule 3.

Note:          Schedule 3 may be amended by regulations. See subsection 75(2).

Index , in relation to the Register, means the Part of the Register compiled in accordance with Division 6 of Part 4.

legislative instrument has the meaning given by section 5.

Legislative Instrument Proposal means a Legislative Instrument Proposal prepared under section 21.

lodge , in respect of a document required to be lodged under Part 4 with the Principal Legislative Counsel, means:

                     (a)  if the document to be lodged is required to be an original document—give or send by certified mail or in any other manner prescribed for the purpose; and

                     (b)  if the document to be lodged is not required to be an original document—give, send by certified mail or in any other manner prescribed for the purpose, or transmit electronically.

making , in relation to an instrument that will become, or that is, a legislative instrument, means the signing, sealing or other endorsement of an instrument by the person or body empowered to make it whereby it becomes or became that legislative instrument.

prescribed authority means:

                     (a)  a body corporate, or an unincorporated body, established for a public purpose by, or in accordance with the provisions of, an Act, other than:

                              (i)  an unincorporated company or association; or

                             (ii)  a body that is declared by the regulations not to be a prescribed authority for the purposes of this Act; or

                     (b)  any other body, whether incorporated or unincorporated, declared by the regulations to be a prescribed authority for the purposes of this Act; or

                     (c)  the person holding, or performing the duties of, an office established by an Act; or

                     (d)  the person holding, or performing the duties of, an appointment declared by the regulations to be an appointment the holder of which is a prescribed authority for the purposes of this Act.

Principal Legislative Counsel means the officer of the Department designated as the Principal Legislative Counsel under Part 2.

principal officer , in relation to a prescribed authority, means:

                     (a)  the person who constitutes, or is acting as the person who constitutes, the authority or, if the authority is constituted by 2 or more persons, the person who is entitled to preside at any meeting of the authority at which he or she is present; or

                     (b)  if the affairs of the authority are administered or managed by a board or other group of persons—the person who is entitled to preside at any meeting of that board or other group at which he or she is present.

Register means the Federal Register of Legislative Instruments established under section 36.

regulatory review body means a body (whether corporate or unincorporate) or a branch or part of the Australian Public Service that is declared by the regulations to be the regulatory review body for the purposes of this Act.

responsible Minister , in relation to a legislative instrument or a proposed legislative instrument, means the Minister administering the enabling legislation for that instrument.

rule - maker has the meaning given by subsection (3).

State includes the Australian Capital Territory and the Northern Territory.

Statutory Rules series means the series of statutory rules printed in accordance with the requirements of subsection 5(1) of the Statutory Rules Publication Act 1903 as in force from time to time before the commencing day.

working day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

             (2)  In this Act, if an act or thing is required to be done within a specified number of working days of a particular event, that act or thing can be done at any time after that event during normal business hours:

                     (a)  on the day on which the event occurred (if it is a working day); or

                     (b)  on a working day included in the specified number of working days next following that day.

             (3)  In this Act, unless the contrary intention appears:

                     (a)  a reference to an entry in the Register is a reference to particulars kept by use of a computer and comprising the Register; and

                     (b)  a reference to a document being registered, or entered on the Register, is a reference to the recording of an image of that document as part of the Register; and

                     (c)  a reference to a rule-maker, in relation to a legislative instrument or a proposed legislative instrument, is a reference to:

                              (i)  if the legislative instrument is, or will be, authorised to be made by the Governor-General and the reference appears in section 10—the Governor-General; and

                             (ii)  if the legislative instrument is, or will be, authorised to be made by the Governor-General and the reference appears in any other provision of this Act—the responsible Minister; and

                            (iii)  if the legislative instrument is, or will be, authorised to be made by a person other than the Governor-General or by a body—that other person or body; and

                     (d)  a reference in this Act to a rule-maker who makes, or proposes to make, a legislative instrument includes a reference to the person who is, or will be, taken to be the rule-maker of the instrument in spite of the fact that that person may not actually make, or may not propose to make, the instrument concerned.

5   Definition—a legislative instrument

             (1)  Subject to subsection (4) and to section 7, a legislative instrument is an instrument in writing:

                     (a)  that is of a legislative character; and

                     (b)  that is or was made in the exercise of a power delegated by the Parliament.

             (2)  Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:

                     (a)  it determines the law or alters the content of the law, rather than applying the law in a particular case; and

                     (b)  it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.

             (3)  Without limiting the generality of subsection (1), each of the following instruments is, subject to subsection (4) and to section 7, a legislative instrument:

                     (a)  an instrument:

                              (i)  made in the exercise of a power delegated by the Parliament before, on or after the commencing day; and

                             (ii)  described as a regulation by the enabling legislation;

                     (b)  an instrument, other than a regulation:

                              (i)  made in the exercise of a power delegated by the Parliament before the commencing day; and

                             (ii)  required to be printed and sold as a statutory rule under subsection 5(1) of the Statutory Rules Publication Act 1903 as in force at any time before the commencing day;

                     (c)  an instrument:

                              (i)  made in the exercise of a power delegated by the Parliament before, on or after the commencing day in an Act providing for the government of a non self-governing Territory; and

                             (ii)  described in that Act as an Ordinance or as a rule, regulation or by-law made under such an Ordinance;

                     (d)  an instrument made in the exercise of a power delegated by the Parliament before the commencing day and, in accordance with a provision of the enabling legislation:

                              (i)  declared to be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 as in force at any time before the commencing day; or

                             (ii)  otherwise able to be disallowed under Part XII of the Acts Interpretation Act 1901 as in force at any time before the commencing day;

                     (e)  a Proclamation made under enabling legislation;

whether the instrument is made before, on or after the commencing day.

             (4)  An instrument is not a legislative instrument if:

                     (a)  it is of a kind listed in the table set out in Schedule 1; or

                     (b)  it is made under an Act or a legislative instrument or a part of an Act or legislative instrument:

                              (i)  that first authorised the making of the first-mentioned instrument on or after the commencing day; and

                             (ii)  that declared the first-mentioned instrument not to be a legislative instrument for the purposes of this Act.

          (4A)  A declaration in a legislative instrument (whether the declaration is included in the instrument, before, on or after the commencing day) to the effect that another instrument will not be, or is not, a legislative instrument for the purposes of this Act is of no effect unless:

                     (a)  the Attorney-General has given the rule-maker a certificate, in writing, before the inclusion of the declaration in the first-mentioned instrument, that he or she agrees to the inclusion of the declaration in the first-mentioned instrument; and

                     (b)  the certificate sets out the reasons for so agreeing.

             (5)  The inclusion of a kind of instrument in the table set out in Schedule 1 does not imply that such an instrument would, if it were not so included, be a legislative instrument under subsection (1).

             (6)  If:

                     (a)  the making of an instrument is authorised before the commencing day; and

                     (b)  the instrument is of a kind included in the table set out in Schedule 1 or is not otherwise a legislative instrument; and

                     (c)  the instrument is required:

                              (i)  to have its text, or particulars of its making, published in the Gazette ; or

                             (ii)  to be laid before either or both of the Houses of the Parliament without provision for its disallowance;

that requirement is unaffected by this legislation whether the instrument is made before, on or after the commencing day.

6   Definition—power delegated by the Parliament

                   A reference in this Act to a power delegated by the Parliament includes a reference to a power delegated by the Parliament to a rule-maker and then, under the authority of the Parliament, further delegated by the rule-maker to another rule-maker.

7   Rules of court are not legislative instruments

                   Rules of court for the High Court, the Federal Court of Australia, the Family Court of Australia and the Industrial Relations Court of Australia are not legislative instruments for the purposes of this Act.

8   Attorney-General may certify whether instrument is legislative instrument or not

             (1)  If a person or body having authority to make instruments of a particular kind is uncertain whether an instrument of that kind:

                     (a)  that was made before the commencing day; and

                     (b)  that is not entered in the Register;

is, or is not, a legislative instrument, the person or body may, at any time before the day that would be the last day for lodging the instrument for registration if it were a legislative instrument, apply, in writing, to the Attorney-General to determine the matter.

             (2)  If a person or body having authority to make an instrument of a particular kind:

                     (a)  proposes to make an instrument of that kind on or after the commencing day; and

                     (b)  is uncertain whether an instrument of that kind will be, or will not be, a legislative instrument;

the person or body may apply, in writing, to the Attorney-General to determine the matter.

             (3)  The regulations may make provision in relation to the content and form of, and manner of making, applications under subsections (1) and (2).

             (4)  If application is made to the Attorney-General in respect of an instrument, or an instrument of a particular kind, the Attorney-General must:

                     (a)  determine whether that instrument is, or is not, or whether an instrument of that kind will be, or will not be, a legislative instrument; and

                     (b)  issue a certificate, in writing, to that effect, and set out the reasons for that decision in the certificate; and

                     (c)  give the certificate to the Principal Legislative Counsel and give a copy of the certificate to the applicant.

             (5)  Subject only to its reconsideration in the circumstance described in subsection (6), a certificate given by the Attorney-General under this section is, for all purposes, conclusive of the question whether the instrument to which the certificate relates is, or is not, or whether an instrument of the kind to which the certificate relates will be, or will not be, a legislative instrument.

             (6)  If:

                     (a)  the Attorney-General issues a certificate under this section to the effect that a particular instrument is, or is not, or that an instrument of a particular kind will be, or will not be, a legislative instrument; and

                     (b)  the Federal Court of Australia (the Court ) subsequentl y reviews the decision to issue the certificate under the ADJR Act and makes an order under section 16 of that Act to quash or set aside the decision;

the Attorney-General must reconsider the matter and issue a replacement certificate.

             (7)  Despite section 16 of the ADJR Act, the order of the Court to quash or set aside the decision to issue a certificate under this section takes effect only from the time immediately before the issue of the replacement certificate.

             (8)  If the Attorney-General decides, on reconsideration of the matter:

                     (a)  that an instrument that he or she has certified to be a legislative instrument is not such an instrument; or

                     (b)  that an instrument of a kind that he or she has certified will be a legislative instrument will not be such an instrument;

then:

                     (c)  that instrument, or an instrument of that kind made after the issue of the original certificate, that would, but for its registration, have been required to be notified in the Gazette , must be so notified as soon as practicable but not later than 3 working days after the issue of the replacement certificate; and

                     (d)  if the instrument is so notified, it is taken for all purposes always to have been notified as required; and

                     (e)  any act or thing done in accordance with the instrument, whether before or after its notification, is validly done.

             (9)  If the Attorney-General decides, on reconsideration of the matter:

                     (a)  that an instrument that he or she certified not to be a legislative instrument is such an instrument; or

                     (b)  that an instrument of a kind that he or she has certified will not be a legislative instrument will be such an instrument;

then:

                     (c)  that instrument, or an instrument of that kind made after the issue of the original certificate, must be registered:

                              (i)  by the date required for registration under Division 4 of Part 4 if that Division is applicable to the instrument; or

                             (ii)  if that Division is not applicable or that date has already passed—as soon as practicable but not later than 3 working days after the issue of the replacement certificate; and

                     (d)  if the instrument is so registered, it is taken, for all purposes of this Act, to have been so registered within the time required by this Act for its registration; and

                     (e)  any act or thing done in accordance with, or in reliance on, the instrument, whether before or after its registration, is taken to have been validly done.

           (10)  If the Attorney-General decides, on reconsideration of the matter:

                     (a)  that an instrument that he or she has certified to be a legislative instrument is such an instrument; or

                     (b)  that an instrument of a kind that he or she has certified will be a legislative instrument will be such an instrument;

then:

                     (c)  the requirement for registration of that instrument or of an instrument of that kind is unaffected; and

                     (d)  any registration of that instrument or of an instrument of that kind that is already effected remains effective.

           (11)  In any case where, under the ADJR Act, the Court makes an order quashing or setting aside a decision to issue a certificate under this section, the rule-maker in relation to the particular instrument, or to an instrument of a particular kind, to which the decision related, must:

                     (a)  as soon as practicable after that order is made, notify the Principal Legislative Counsel, in writing, of the Court’s decision; and

                     (b)  as soon as practicable after the issue of a replacement certificate—give the replacement certificate to the Principal Legislative Counsel and give a copy of the certificate to the applicant for the original certificate.

9   When do provisions of legislative instruments take effect?

             (1)  A legislative instrument that is made on or after the commencing day, or a particular provision of such an instrument, takes effect from:

                     (a)  the day specified in the instrument for the purposes of the commencement of the instrument or provision; or

                     (b)  the day and time specified in the instrument for the purposes of the commencement of the instrument or provision; or

                     (c)  the day, or day and time, of commencement of an Act, or of a provision of an Act, that is specified in the instrument for the purposes of the commencement of the instrument or provision; or

                     (d)  in any other case—the first moment (according to the time applicable in the Australian Capital Territory) of the day next following the day when it is registered.

Note:         There are certain instruments that, by virtue of subsection 67(2), are made before, but treated as having been made on, the commencing day.

             (2)  The effect of subsection (1) on a legislative instrument is subject to any contrary provision for commencement of the instrument in the enabling legislation for the instrument if the enabling legislation is an Act or a provision of an Act.

             (3)  Despite subsection (1) and section 67, an application order that:

                     (a)  is made wholly or partly under section 111A of the Corporations Law of the Capital Territory; and

                     (b)  is a legislative instrument;

commences when it would commence if it were not a legislative instrument to which this Act applied.

             (4)  Despite subsection (1) and section 67, a legislative instrument made by the Australian Securities Commission under subsection 11(1A) of the Australian Securities Commission Act 1989 or wholly or partly under the Corporations Law of the Capital Territory commences when it would commence if it were not a legislative instrument to which this Act applied.

             (5)  A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before it is entered on the Register and as a result:

                     (a)  the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the time of registration would be adversely affected; or

                     (b)  liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the time of registration.

10   Construction of legislative instruments

             (1)  If enabling legislation confers on a rule-maker the power to make a legislative instrument then, unless the contrary intention appears:

                     (a)  the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and

                     (b)  expressions used in any legislative instrument so made have the same meaning as in the enabling legislation; and

                     (c)  any legislative instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the rule-maker.

             (2)  If any legislative instrument would, but for subsection (1), be construed as being in excess of the rule-maker’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.

             (3)  If enabling legislation confers on a rule-maker the power to make a legislative instrument:

                     (a)  specifying, declaring or prescribing a matter or thing; or

                     (b)  doing anything in relation to a matter or thing;

then, in exercising the power, the rule-maker may identify the matter or thing by referring to a class or classes of matters or things.

Note:         This section has a parallel , in relation to instruments that are not legislative instruments, in section 46 of the Acts Interpretation Act 1901 .

11   Prescribing matters by reference to other instruments

                   If enabling legislation authorises or requires provision to be made in relation to any matter in a legislative instrument, the legislative instrument may, unless the contrary intention appears, make provision in relation to that matter by applying, adopting or incorporating, with or without modification:

                     (a)  the provisions of any Act, or of any legislative instrument, as in force at a particular time or as in force from time to time; or

                     (b)  any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned legislative instrument takes effect, but not as in force or existing from time to time.

Note:         This section has a parallel, in relation to instruments that are not legislative instruments, in section 46A of the Acts Interpretation Act 1901 .

12   Effect of repeal of legislative instrument

                   The repeal of any legislative instrument, or of any provision of a legislative instrument, does not, unless the contrary intention appears in the Act or legislative instrument effecting the repeal:

                     (a)  revive anything not in force or existing at the time at which the repeal takes effect; or

                     (b)  affect the previous operation of the instrument or provision or anything duly done or suffered under the instrument or provision; or

                     (c)  affect any right, privilege, obligation or liability acquired, accrued or incurred under the instrument or provision; or

                     (d)  affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the instrument or provision; or

                     (e)  affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or instrument had not been enacted or made.

13   This Act applies to legislative instruments relating to corporations

                   Despite section 9 of the Corporations Act 1989 , this Act applies in relation to:

                     (a)  legislative instruments that are reserved laws; and

                     (b)  legislative instruments for which the enabling legislation is a reserved law.

For this purpose, reserved law has the meaning given by section 9 of the Corporations Act 1989.