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Legislative Instruments Bill 1996 [No. 2]

Part 3 Consultation before making legislative instruments

   

17   Purposes of this Part

             (1)  The purposes of this Part are:

                     (a)  to encourage consultation before the making of legislative instruments; and

                     (b)  to provide for procedures for consultation:

                              (i)  that must be followed in relation to some legislative instruments likely to have a direct, or a substantial indirect, effect on business; and

                             (ii)  that may be followed in any other case if the rule-maker considers that the procedures are appropriate.

             (2)  The Parliament’s intention in encouraging consultation before the making of legislative instruments is to improve the quality of proposed legislative instruments by:

                     (a)  drawing on the expertise of persons in fields relevant to the proposed instruments; and

                     (b)  ensuring that persons likely to be affected by the proposed instruments have an adequate opportunity to comment on the policy and content of the proposed instruments.

18   What legislative instruments require consultation?

                   If:

                     (a)  a legislative instrument is proposed to be made at any time on or after the first day of the seventh month after the commencing day; and

                     (b)  the instrument will be made under enabling legislation comprising an Act that is listed in column 1 of the table set out in Schedule 2 or, if a part of an Act is listed in column 2 of that table, under enabling legislation comprising that part of that Act;

the rule-maker must comply with the obligations of sections 20 to 25, except to the extent that the rule-maker is not required to do so because of the operation of section 28, 30 or 31 or of subsection 61(5).

19   Responsible Minister to identify any representative bodies or organisations

                   For the purposes of consultation procedures required by this Part, the responsible Minister in relation to a proposed legislative instrument (whether that Minister is the rule-maker or not):

                     (a)  must decide whether or not there is a particular body or organisation that sufficiently represents, or a combination of particular bodies or organisations that together sufficiently represent, the interests of most persons, or of all persons, likely to be affected by the instrument or by instruments of that kind; and

                     (b)  must record the decision in writing and set out the reasons for the decision.

20   Notification of intention to make a legislative instrument

                   A rule-maker who proposes to make a legislative instrument must, subject to sections 28 and 30 and subsection 61(5), in such manner as the rule-maker determines to be appropriate to the circumstances:

                     (a)  notify the persons most likely to be affected by the proposed instrument or, if the responsible Minister has identified particular bodies or organisations as sufficiently representing most or all of those persons, notify those bodies or organisations:

                              (i)  of the issues giving rise to the need for the proposed instrument; and

                             (ii)  of the objective to be achieved by making the proposed instrument; and

                     (b)  invite those persons, or those bodies and organisations, to make written submissions, before a date specified in the notification, commenting on the issues and the objective, and on possible ways (whether legislative or otherwise) of achieving the objective.

21   Legislative Instrument Proposals

             (1)  If, after consideration of the submissions (if any) made in response to a notification under section 20 concerning a proposed legislative instrument and any other relevant matters, the rule-maker continues to consider that a legislative instrument is the preferable means for achieving the objective notified under section 20, the rule-maker must, subject to sections 28 and 30 and subsection 61(5), prepare a written Legislative Instrument Proposal.

             (2)  A Legislative Instrument Proposal must contain:

                     (a)  a full statement of the issues giving rise to the need for the proposed legislative instrument and of the objective of the instrument; and

                     (b)  a statement of the various options (whether legislative or otherwise and whether raised in submissions referred to in subsection (1) or not) that may constitute viable means for achieving the objective; and

                     (c)  a statement of the direct and indirect social and economic costs and benefits of each such option; and

                     (d)  an evaluation of the options with a recommendation.

             (3)  Without limiting the generality of paragraph (2)(c), the statement of costs and benefits of an option must include:

                     (a)  an evaluation of the impact of the option on particular groups in the community; and

                     (b)  a statement of the costs and benefits so far as competition, resource allocation, administration and compliance are concerned; and

                     (c)  if the option restricts competition—consideration of whether the restriction is necessary to achieve the stated objective and, if so, consideration of whether the option should be pursued despite the restriction.

             (4)  The rule-maker must, as soon as practicable after preparing the Legislative Instrument Proposal, submit it to the regulatory review body and seek the body’s written certification that the Proposal meets the requirements of this Part.

             (5)  If the regulatory review body is satisfied:

                     (a)  that the notification, under section 20, of the proposal to make a legislative instrument was adequate; and

                     (b)  that the Legislative Instrument Proposal sufficiently addresses the matters that it is required to address under subsection (2);

the regulatory review body must certify in writing that the Legislative Instrument Proposal meets the requirements of this Part and set out the reasons for being so satisfied.

22   Inviting written submissions or participation in a public hearing

             (1)  As soon as practicable after the regulatory review body has certified that a Legislative Instrument Proposal prepared in respect of a particular legislative instrument meets the requirements of this Part, the rule-maker concerned must, subject to sections 28, 30 and 31 and subsection 61(5):

                     (a)  invite written submissions relating to the proposed instrument; or

                     (b)  invite participation in a public hearing relating to the proposed instrument.

             (2)  The responsible Minister in relation to a proposed legislative instrument may direct the rule-maker to invite participation in a public hearing relating to the proposed instrument (whether written submissions have already been invited under subsection (1) or not).

             (3)  The rule-maker must obey a direction to invite participation in a public hearing.

             (4)  The rule-maker must advise the responsible Minister if the rule-maker believes that the proposed instrument is, or is likely to be, controversial or sensitive.

             (5)  Subsections (2), (3) and (4) do not apply in relation to a proposed legislative instrument if the responsible Minister is the rule-maker.

             (6)  If the responsible Minister becomes satisfied (as a result of advice under subsection (4) or otherwise) that the proposed instrument is, or is likely to be, controversial or sensitive, the responsible Minister must:

                     (a)  if the responsible Minister is the rule-maker—decide whether or not to invite participation in a public hearing relating to the proposed instrument; or

                     (b)  if the responsible Minister is not the rule-maker—decide whether or not to direct the rule-maker to invite participation in a public hearing relating to the proposed instrument.

The responsible Minister must record in writing his or her decision and the reasons for it.

23   Content of an invitation

             (1)  An invitation under section 22 must:

                     (a)  declare the intention to make the proposed legislative instrument; and

                     (b)  describe how to obtain or inspect copies of the Legislative Instrument Proposal; and

                     (c)  describe how to obtain or inspect copies of either:

                              (i)  a statement providing a broad description of the proposed instrument; or

                             (ii)  a preliminary draft of the proposed instrument; and

                     (d)  if written submissions are invited—indicate the time by which, and the place at which, those submissions may be made in relation to either or both of:

                              (i)  the Legislative Instrument Proposal; and

                             (ii)  the statement or preliminary draft.

             (2)  An invitation to participate in a public hearing must also invite anyone having an interest in the proposed instrument to express his or her views at a time and place indicated in the invitation.

             (3)  For the purposes of paragraph (1)(d) and subsection (2), the time by which a written submission may be made or at which views may be expressed must be a time:

                     (a)  on a day at least 21 days after the day the invitation is advertised or given; or

                     (b)  on an earlier day specified in writing by the Attorney-General in special circumstances.

             (4)  If the rule-maker of a proposed legislative instrument:

                     (a)  advertises or gives an invitation (the earlier invitation ) to make written submissions relating to the proposed instrument; and

                     (b)  later advertises or gives an invitation (the later invitation ) to participate in a public hearing relating to the proposed instrument;

the time specified in the later invitation for making written submissions must not be earlier than the time specified in the earlier invitation.

24   Publicising an invitation

             (1)  An invitation under section 22 must be advertised in:

                     (a)  each State; and

                     (b)  the Jervis Bay Territory; and

                     (c)  each inhabited external Territory where the enabling legislation for the proposed instrument applies.

The advertising must be included in one or more newspapers circulating in the relevant States and Territories or broadcast on electronic media received in the relevant States or Territories.

             (2)  An invitation under section 22 seeking written submissions concerning a proposed legislative instrument must, if the responsible Minister has, under section 19, identified at least one representative body or organisation, be given to each such body or organisation, irrespective of its being given to any other person.

25   Consideration of written submissions and submissions made at public hearing

             (1)  Any written submission that relates to a proposed legislative instrument and is received by the time specified in the invitation under section 22 must be considered before the proposed legislative instrument is made.

             (2)  Any submission made at a public hearing in relation to a proposed legislative instrument must be considered before the proposed instrument is made.

             (3)  If the rule-maker of a proposed legislative instrument has invited written submissions in relation to the proposed instrument and later invites participation in a public hearing relating to the proposed instrument, the later invitation does not prevent a person from making a written submission in accordance with the earlier invitation.

26   Disclosure of submissions received under this Part

             (1)  Subject to subsection (2), a written submission received in response to a notification under section 20, or to an invitation under section 22, concerning a proposed legislative instrument, or a part of such a submission may:

                     (a)  be identified as a submission received in the course of consultation relating to that instrument; and

                     (b)  be referred to in the course of that consultation; and

                     (c)  be made available to other participants in that consultation on request.

             (2)  If:

                     (a)  a person makes a submission referred to in subsection (1); and

                     (b)  the person indicates, in writing, at the time of making the submission, that the submission, or any part of it, is sensitive;

then, to the extent that any of the activities referred to in a paragraph of subsection (1) involves a disclosure of the information contained in the submission, or in that part of the submission, that activity must not be carried out unless there has been prior consultation with the person making the submission.

             (3)  The Freedom of Information Act 1982 applies in relation to written submissions received under this Part.

27   Rule-maker to prepare consultation statement

             (1)  A rule-maker who makes a legislative instrument must, in all cases, prepare a written consultation statement in respect of the instrument.

             (2)  The rule-maker must indicate in the consultation statement whether, disregarding the operation of sections 28, 30 and 31 and of subsection 61(5), the rule-maker would have been required to comply with the obligations of sections 20 to 25 and:

                     (a)  if the rule-maker would not have been so required to comply with the obligations of sections 20 to 25:

                              (i)  indicate whether there was any consultation prior to the making of the legislative instrument; and

                             (ii)  if there was any such consultation—provide brief particulars of that consultation; or

                     (b)  if the rule-maker would have been so required to comply with the obligations of sections 20 to 25—include in the consultation statement all particulars required under subsection (3).

             (3)  The consultation statement in respect of a legislative instrument must include:

                     (a)  if a notification was made under section 20 in respect of the instrument—a description of that notification including a statement of the persons, bodies or organisations notified, the method of notification employed and the submissions received; and

                     (b)  if an invitation was given under section 22 in respect of the instrument—a description of any consultation arising from that invitation including a statement of the methods of advertisement employed, the reasons for choosing the method employed, the persons, bodies or organisations invited to participate and the submissions received or views expressed; and

                     (c)  if, under section 19, the responsible Minister had identified any body or organisation as representing some or all of the persons likely to be affected by the instrument—particulars of that body or organisation; and

                     (d)  if, under subsection 21(5), the regulatory review body had certified that it was satisfied of the matters referred to in paragraphs (a) and (b) of that subsection—a statement that the regulatory review body had so certified; and

                     (e)  if, under subsection 22(6), the responsible Minister was satisfied that the instrument would be likely to be controversial or sensitive—a statement to that effect indicating the reasons for being so satisfied; and

                      (f)  if, under subsection 23(3), the Attorney-General specified a day less than 21 days after the advertising or giving of an invitation under section 22 to respond to that invitation—a statement of the reasons for so doing; and

                     (g)  if compliance with consultation procedures under this Part was not required because the rule-maker was satisfied of the matter referred to in subparagraph 28(1)(a)(i) or (ii) and the regulatory review body had certified that it was also satisfied of the matter—a statement that the rule-maker was so satisfied and that the regulatory review body had so certified; and

                     (h)  if compliance with consultation procedures under this Part was not required because the rule-maker was satisfied of the matter referred to in subparagraph 28(1)(a)(iii), (iv), (v), (vi), (vii) or (viii)—a statement that the rule-maker was so satisfied; and

                      (i)  if compliance with consultation procedures under this Part was not required because the rule-maker was satisfied under section 30 that there was an adequate reason for not complying with those procedures—a statement that the rule-maker was so satisfied; and

                      (j)  if compliance with certain consultation procedures set out in sections 22 to 25 was not required because the regulatory review body had certified under section 21 that it was satisfied of the matters referred to in paragraphs 21(5)(a) and (b) and under section 31 that it was satisfied of the matter or matters referred to in paragraph 31(1)(b) or (2)(b) —a statement that the regulatory review body had so certified.

             (4)  The following documents must be attached to the consultation statement:

                     (a)  a copy of any notification under section 20;

                     (b)  a copy of any Legislative Instrument Proposal;

                     (c)  if the responsible Minister identified a representative body or organisation under section 19—a copy of the record of the responsible Minister’s decision;

                     (d)  if, under section 21, the regulatory review body certified that it was satisfied of the matters referred to in paragraphs 21(5)(a) and (b)—a copy of that certificate;

                     (e)  if, under subsection 22(6), the responsible Minister was satisfied that a proposed legislative instrument was, or would be likely to be, controversial or sensitive—a copy of the record of the responsible Minister’s decision under that subsection whether or not to hold a public hearing;

                      (f)  if, under subsection 23(3), the Attorney-General specified a day less than 21 days after the advertising or giving of an invitation under section 22 to respond to the invitation—a copy of the writing in which the Attorney-General specified the day;

                     (g)  if, under section 28 or 30, the rule-maker was satisfied of a matter as referred to in paragraph (3)(g), (h) or (i)—a copy of the record of the rule-maker’s decision;

                     (h)  if, under section 28, the regulatory review body certified that it was satisfied of a matter referred to in subparagraph 28(1)(a)(i) or (ii)—a copy of that certificate;

                      (i)  if, under paragraph 31(1)(b) or (2)(b), the regulatory review body certified that it was satisfied of the matter or matters referred to in that paragraph—a copy of that certificate.

28   Circumstances in which compliance with sections 20 to 25 is not required

             (1)  Despite the inclusion of enabling legislation in the table set out in Schedule 2, the rule-maker is not required to comply with sections 20 to 25 in relation to the making of a legislative instrument that the rule-maker proposes to make under that enabling legislation if:

                     (a)  the rule-maker is satisfied that:

                              (i)  the instrument is not likely to have a direct, or a substantial indirect, effect on business; or

                             (ii)  the instrument is of a minor or machinery nature and does not substantially alter existing arrangements; or

                            (iii)  the instrument merely meets an obligation of the Commonwealth under an international agreement by repeating or adopting the terms of all or part of an instrument for which the agreement provides or to which the agreement makes reference; or

                            (iv)  the instrument gives effect, in terms announced in the Budget, to a specific Budget decision within the meaning of subsection (2); or

                             (v)  the instrument is required because of an issue of national security; or

                            (vi)  the instrument is an airworthiness directive proposed to be made under subregulation 37A(4) of the Civil Aviation Regulations to incorporate an airworthiness directive issued by the aviation authority of the country of manufacture or design in relation to an aircraft, aircraft component or aircraft equipment; or

                           (vii)  the instrument is an application order proposed to be made under section 111A of the Corporations Law of the Capital Territory; or

                           (viii)  the instrument is a Proclamation that provides solely for the commencement of that enabling legislation or of any provision of that enabling legislation; and

                     (b)  if the rule-maker is satisfied of the matter referred to in subparagraph (a)(i) or (ii)—the regulatory review body has certified in writing that it is also satisfied of that matter and set out the reasons for being so satisfied.

             (2)  For the purposes of subparagraph (1)(a)(iv), a decision is a specific Budget decision only if it is a decision announced in the Budget and it proposes:

                     (a)  to repeal, impose, or adjust a tax, fee or charge; or

                     (b)  to confer, revoke or alter an entitlement; or

                     (c)  to impose, revoke or alter an obligation.

             (3)  For the purposes of subparagraph (1)(a)(vi), an airworthiness directive issued by the aviation authority of the country of manufacture or design in relation to an aircraft, aircraft component or aircraft equipment includes an airworthiness directive issued by the aviation authority in relation to:

                     (a)  an aircraft or a specified type or category of aircraft; or

                     (b)  an aircraft component or a specified type or category of aircraft component; or

                     (c)  an item of aircraft equipment or a specified type or category of aircraft equipment.

             (4)  If the rule-maker is satisfied of the matter referred to in a subparagraph of paragraph (1)(a), the rule-maker must record that decision in writing and set out the reasons for being so satisfied.

29   Judicial review of decisions under section 28

             (1)  If:

                     (a)  sections 20 to 25 were not complied with by the rule-maker in relation to the making of a legislative instrument following a decision by the rule-maker that he or she is satisfied of a matter referred to in a subparagraph of paragraph 28(1)(a); and

                     (b)  the Federal Court of Australia (the Court ) reviews the decision under the ADJR Act; and

                     (c)  the Court makes an order under section 16 of the ADJR Act to quash or set aside the decision;

the rule-maker must reconsider the question whether he or she is satisfied of any of the matters referred to in a subparagraph of paragraph 28(1)(a) in relation to the instrument.

             (2)  The rule-maker must record his or her decision on reconsidering the matter and set out the reasons for that decision.

             (3)  If:

                     (a)  the rule-maker, on reconsideration of the matter, is not satisfied of any of the matters referred to in a subparagraph of paragraph 28(1)(a) in relation to the instrument; and

                     (b)  the instrument has already come into force;

then the instrument, as in force immediately before the end of the year that begins when the rule-maker is not so satisfied, is taken to cease to be in force at the end of that year as if it had been repealed by another legislative instrument.

             (4)  For the purposes of subsection (3), a reference to the instrument as in force at a time includes a reference to any saving or transitional provisions relating to that instrument contained in an Act or another legislative instrument that is in force at that time.

             (5)  If:

                     (a)  a legislative instrument (the amending instrument ) had made amendments to another legislative instrument (the principal instrument ); and

                     (b)  the amending instrument is taken to cease to be in force at a particular time under subsection (3);

the provisions of the principal instrument as in force immediately before that time that are inserted by, or that depend on, the amending instrument are also taken to cease to be in force at that time as if they had been repealed by another legislative instrument.

             (6)  If:

                     (a)  a legislative instrument or particular provisions of a legislative instrument would be taken to cease to be in force under this section (whether because of subsection (3) or (5) or because of a previous operation of this subsection) at a time (the sunsetting time ); and

                     (b)  the Attorney-General is satisfied, on written application by the rule-maker, that a proposed instrument (the replacement instrument ) made in substitution for the instrument or provisions will not be able to be completed before the sunsetting time for any of the following reasons:

                              (i)  because more time is required for the drafting of the replacement instrument;

                             (ii)  because more time is required for the purposes of complying with the consultation requirements in relation to the making of the replacement instrument;

                            (iii)  because the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make any replacement instrument before a new government is formed;

then:

                     (c)  the Attorney-General may issue a certificate providing that the first-mentioned instrument or provisions are taken to cease to be in force under this section at a specified time not later than 12 months after the sunsetting time; and

                     (d)  if the Attorney-General issues such a certificate, the first-mentioned instrument or provisions are taken to cease to be in force at the specified time instead of the sunsetting time as if repealed by another legislative instrument.

             (7)  If the Attorney-General issues a certificate under paragraph (6)(c), he or she must:

                     (a)  include in the certificate a statement of the reasons for the issue of a certificate; and

                     (b)  cause a copy of the certificate to be laid before each House of the Parliament not later than 6 sitting days of that House after the issue of the certificate.

             (8)  The application made by the rule-maker in applying for a certificate under subsection (6) must:

                     (a)  set out the steps (if any) that the rule-maker has taken, or proposes to take, to deal with the ceasing to be in force of the instrument or provisions concerned; and

                     (b)  set out the circumstances that prevented the taking, or the completion, of such steps.

30   Rule-maker may decide not to comply with sections 20 to 25

             (1)  Subject to subsection (2), if:

                     (a)  the rule-maker would, but for this subsection, be required to comply with sections 20 to 25 in relation to the making of a legislative instrument under enabling legislation that is included in the table set out in Schedule 2; and

                     (b)  the rule-maker has not made a decision that he or she is satisfied of a matter referred to in a subparagraph of paragraph 28(1)(a) in relation to the instrument;

the rule-maker may decide not to comply with sections 20 to 25 if the rule-maker is satisfied that, in the particular circumstances of the case, there is an adequate reason for that non-compliance.

             (2)  The rule-maker must not make a decision under subsection (1) in relation to a legislative instrument that is substantially the same as a legislative instrument in respect of which a decision under that subsection had been made at an earlier time if the reasons for both decisions are substantially the same.

             (3)  The rule-maker must record a decision under subsection (1) in writing and set out the reason or reasons.

             (4)  If the rule-maker makes a decision under subsection (1) in relation to a legislative instrument, the legislative instrument as in force immediately before the end of the year beginning on the day of its commencement is taken to cease to be in force at the end of that year as if it had been repealed by another legislative instrument.

             (5)  For the purposes of subsection (4):

                     (a)  a reference to a legislative instrument as in force at a time includes a reference to any saving or transitional provisions relating to the instrument that are contained in an Act or legislative instrument that is in force at that time; and

                     (b)  if a legislative instrument has 2 or more days of commencement, a reference to the day of commencement of the instrument is a reference to the earliest of those days.

             (6)  If:

                     (a)  a legislative instrument (the amending instrument ) had made amendments to another legislative instrument (the principal instrument ); and

                     (b)  the amending instrument is taken to cease to be in force at a particular time under subsection (4);

the provisions of the principal instrument as in force immediately before that time that are inserted by, or that depend on, the amending instrument are also taken to cease to be in force at that time as if they had been repealed by another legislative instrument.

             (7)  If:

                     (a)  a legislative instrument or particular provisions of a legislative instrument would be taken to cease to be in force under this section (whether because of subsection (4) or (6) or because of a previous operation of this subsection) at a time (the sunsetting time ); and

                     (b)  the Attorney-General is satisfied, on written application by the rule-maker, that a proposed instrument (the replacement instrument ) made in substitution for the instrument or provisions will not be able to be completed before the sunsetting time for any of the following reasons:

                              (i)  because more time is required for the drafting of the replacement instrument;

                             (ii)  because more time is required for the purposes of complying with the consultation requirements in relation to the making of the replacement instrument;

                            (iii)  because the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make any replacement instrument before a new government is formed;

then:

                     (c)  the Attorney-General may issue a certificate providing that the first-mentioned instrument or provisions are taken to cease to be in force under this section at a specified time not later than 12 months after the sunsetting time; and

                     (d)  if the Attorney-General issues such a certificate, the first-mentioned instrument or provisions are taken to cease to be in force at the specified time instead of the sunsetting time as if repealed by another legislative instrument.

             (8)  If the Attorney-General issues a certificate under paragraph (7)(c), he or she must:

                     (a)  include in the certificate a statement of the reasons for the issue of a certificate; and

                     (b)  cause a copy of the certificate to be laid before each House of the Parliament not later than 6 sitting days of that House after the issue of the certificate.

             (9)  The application made by the rule-maker in applying for a certificate under subsection (7) must:

                     (a)  set out the steps (if any) that the rule-maker has taken, or proposed to take, to deal with the ceasing to be in force of the instrument or provisions concerned; and

                     (b)  set out the circumstances that prevented the taking, or the completion, of such steps.

31   Non-compliance with sections 22 to 25 where alternative requirement provided by enabling legislation

             (1)  If the regulatory review body:

                     (a)  has certified, under section 21, that a Legislative Instrument Proposal meets the requirements of this Part; and

                     (b)  certifies under this paragraph, that the consultation required to be undertaken by the rule-maker in relation to the making of the instrument under the enabling legislation or an enabling agreement constitutes a level of consultation comparable with that required under sections 22, 23, 24 and 25;

the rule-maker is not required to comply with sections 22, 23, 24 and 25 in relation to that instrument.

             (2)  If the regulatory review body:

                     (a)  has certified, under section 21, that a Legislative Instrument Proposal meets the requirements of this Part; and

                     (b)  certifies, under this paragraph, that, in the particular circumstances of the case:

                              (i)  the costs of undertaking consultation in accordance with sections 22, 23, 24 and 25 in relation to the legislative instrument would outweigh any benefits from that consultation; and

                             (ii)  the consultation required to be undertaken by the rule-maker in relation to the making of the instrument under the enabling legislation or an enabling agreement constitutes a sufficient level of consultation;

the rule-maker is not required to comply with sections 22, 23, 24 and 25 in relation to that instrument.

             (3)  In this section:

enabling agreement , in relation to a legislative instrument, means an agreement between the Commonwealth and a State or States, or an international agreement, pursuant to which the enabling legislation for the legislative instrument is enacted.

32   Modified consultation procedures for legislative instruments for Territories

             (1)  Sections 19 to 31 apply, with any modifications prescribed by the regulations, in relation to a proposed legislative instrument that:

                     (a)  is to be made in the exercise of a power delegated by the Parliament at any time in an Act providing for the government of a Territory; and

                     (b)  is to be an instrument described in that Act as an Ordinance or as a rule, regulation by-law or plan of management made under such an Ordinance.

             (2)  The regulations may prescribe different modifications for the purposes of proposed instruments to be made under Acts providing for the government of different Territories.

             (3)  In this section:

modifications includes additions, omissions and substitutions.

Territory includes the external Territories but does not include the Australian Capital Territory or the Northern Territory.

33   Consequence of a failure to seek submissions

                   A failure to comply with this Part does not affect the validity or enforceability of a legislative instrument.

34   Alterations to table in Schedule 2

                   The regulations may, from time to time, amend the table set out in Schedule 2:

                     (a)  so as to have the effect of including in the table enabling legislation (whenever enacted or made and whether amended or not) that authorises the making of legislative instruments that will be likely to have a direct, or a substantial indirect, effect on business; or

                     (b)  so as to have the effect of omitting from the table enabling legislation (whenever enacted or made and whether amended or not) if that legislation has ceased to be appropriate for inclusion in the table:

                              (i)  because it has been repealed or revoked, or amended so as no longer to authorise the making of legislative instruments; or

                             (ii)  because no legislative instruments authorised by that legislation will any longer be likely to have a direct, or a substantial indirect, effect on business.

Note:         Regulations having the effect of omitting enabling legislation from the table set out in Schedule 2 require the consent of the Attorney-General. See subsection 75(3).