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Acts and Instruments (Framework Reform) Bill 2014

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2013-2014

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

HOUSE OF REPRESENTATIVES

 

 

 

Acts and instruments (framework reform) Bill 2014

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, Senator the Honourable George Brandis QC)

                                                                                                        



 

acts and instruments (framework reform) Bill 2014



general Outline

The Legislative Instruments Act 2003 established a comprehensive regime for the registration, tabling, parliamentary scrutiny and sunsetting (automatic repeal) of Commonwealth legislative instruments. It also established an authoritative, complete and accessible register of those instruments, including compilations (the electronic equivalent of up-to-date reprints) and explanatory statements. 

A statutory review of the Legislative Instruments Act was conducted in 2008 by a committee comprising Mr Anthony Blunn AO, Mr Ian Govey and Professor John McMillan AO. The committee consulted a broad range of stakeholders through the release of an issues paper and a series of meetings. It produced the report titled 2008 Review of the Legislative Instruments Act 2003 . The committee found that the Legislative Instruments Act had been successful in providing a repository of legislative instruments, improving public access to legislative instruments and facilitating parliamentary scrutiny of legislative instruments.

The committee found that the Legislative Instruments Act had:

...fundamentally changed the way in which Commonwealth legislative instruments are made, published and reviewed. It gives effect to important principles of access to the law and review of executive action which underpin open and accountable government.

The committee also made a number of recommendations to enhance the Register, and to improve the clarity and operation of the legislation that governs it.

Following the review and in response to the recommendations, a number of measures have been taken. This includes work to manage the sunsetting of legislative instruments across the Commonwealth, including through the introduction of a regulation-making power to enable the repeal of spent instruments. Technical enhancements have been made to the Register to ensure a high level of performance and useability, and to support the sunsetting of instruments. The Office of Parliamentary Counsel has updated the Legislative Instruments Handbook to provide more detailed guidance to help Commonwealth rule-makers and agencies to manage their legislative instruments efficiently, effectively and in accordance with the law.

As a result of other recommendations of the committee and the passage of time, the scheme now requires reform to enhance the accessibility of Commonwealth instruments and to improve the efficiency and operability of the scheme.

PURPOSE

The Bill implements a number of the outstanding recommendations of the 2008 Review of the Legislative Instruments Act 2003 . The Bill makes a number of other amendments to improve the operation and clarity of legislative frameworks for Commonwealth Acts and instruments and contribute to the Government’s deregulation agenda by creating administrative efficiencies across government and enhancing the public accessibility of Commonwealth laws.

 

Schedule 1

The Bill consolidates the frameworks for the publication of Commonwealth Acts and the registration of legislative and other instruments by repealing the Acts Publication Act 1905 and incorporating the requirements for publishing Commonwealth Acts into the Legislative Instruments Act.

To reflect this change, the Legislative Instruments Act will be renamed the Legislation Act 2003 . The existing Acts database established under the Acts Publication Act and the existing Federal Register of Legislative Instruments (both are accessible by ComLaw) will be integrated into a single register called the Federal Register of Legislation (the Register). The Register may contain other relevant documents and information likely to be useful to users of the Register.

These changes will not alter the processes for the development and passage of legislation through the Parliament. They will not substantially alter the way in which Acts are handled under the existing publication regime. There will be some minor changes to the interpretation of legislation through amendments in the Bill relating to the Acts Interpretation Act 1901 (set out below).

The Bill also establishes a new category of instruments called notifiable instruments, which will be able to be registered in authoritative form. Notifiable instruments will not be legislative in character, and as such they will not be made subject to parliamentary scrutiny or sunsetting.

The new category of notifiable instruments is designed to cover instruments that are not appropriate to register as legislative instruments, but for which public accessibility and centralised management is desirable. Instruments may become notifiable instruments by being registered, by being prescribed by regulation under the Legislation Act, or by being declared as notifiable instruments in the enabling legislation. Registration will satisfy any existing publication requirements for the instrument (for example, gazettal).

The Register will be the central authoritative repository of Commonwealth Acts and registered instruments. It will provide access to authorised versions of Acts, legislative instruments, notifiable instruments, compilations of Acts and instruments, and explanatory statements for legislative instruments. The Register will align processes for registration, compilations, editorial changes and authorised versions. This will produce administrative efficiencies across government.

The Bill repeals transitional and spent provisions in the Legislative Instruments Act dealing with legislative instruments made before the commencement of  that Act (1 January 2005), and will, as far as possible, remove references to such instruments.

The new framework will involve moving some content from the Legislative Instruments Act to amended Regulations (currently the Legislative Instruments Regulations 2004 ). Currently, sections 7, 44 and 54 of the Legislative Instruments Act allow for regulations to be made to exempt instruments from registration, disallowance by the Parliament and sunsetting (automatic ceasing), as well as specifying exemptions in tables in the provisions themselves. The Bill removes the exemption tables and the current exemptions will be prescribed in the Regulations. This change will make it easier for users to access information on exemptions.

The Bill also provides for the First Parliamentary Counsel to make legislative instruments known as rules to address matters relating to the Register and registration, such as the keeping of that Register, giving unique identifiers to registered Acts and instruments, lodgement and registration, the compilation of Acts and instruments and authorised versions of registered laws or documents. Given the technical nature of such matters, it is appropriate that it be dealt with in rules rather than regulations.

Schedule 2

Further, the Bill amends the Acts Interpretation Act to clarify provisions relating to references to ministers, departments and other government authorities, and to broaden and strengthen existing provisions relating to machinery of government changes.

Schedule 3

Finally, the Bill makes amendments to a wide range of Acts to update references to provisions that currently provide for legislative instruments to be made by referring to repealed provisions of the Acts Interpretation Act and the Statutory Rules Publication Act 1905 (which has already been repealed).

FINANCIAL IMPACT

The Bill will have a nil or insignificant financial impact on government departments and agencies. 

The amendments in this Bill impact on the publication of Commonwealth instruments, and in some cases may require the registration (publication) of instruments on the new Register that were not previously subject to registration requirements on the Federal Register of Legislative Instruments. The financial impact is expected to be nil or insignificant as instruments that are not subject to these registration requirements are generally subject to other publication processes that involve administrative overheads.

The amendments in the Bill are expected to create administrative efficiencies across government overall and enhance the public accessibility of Commonwealth laws.



 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Acts and Instruments (Framework Reform) Bill 2014

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

An overview of measures in the Bill and their human rights implications is below.

Overview of the Bill

The Bill makes a number of amendments to improve the operation and clarity of legislative frameworks for Commonwealth Acts and instruments, to create administrative efficiencies across government, and enhance the public accessibility of Commonwealth laws.

This Bill consolidates the frameworks for the publication of Commonwealth Acts and the registration of legislative and other instruments by repealing the Acts Publication Act 1905 and incorporating the requirements for publishing Commonwealth Acts into the Legislative Instruments Act 2003 . Commonwealth Acts and instruments will be within a single authoritative repository, the Federal Register of Legislation. This will provide for the alignment of processes for registration, compilations, editorial changes and authorised versions of both Acts and instruments, producing administrative efficiencies across government.

The Bill establishes a new category of instruments called notifiable instruments, which will be able to be registered in authoritative form. This new category of instrument is designed to cover instruments that are not appropriate to register as legislative instruments, but for which public accessibility and central management on the Register is desirable.

The Bill amends the Acts Interpretation Act to clarify provisions relating to references to ministers, departments and other government authorities, and to broaden and strengthen existing provisions relating to machinery of government changes.

Human rights implications

The following statement considers the human rights implications of the Bill.  Further consideration of these implications will be needed if another Bill proposes to override parts of this Bill.  They will need to be considered specifically and in context.

The Bill engages the following human right, the prohibition on retrospective criminal laws, and promotes prescription by law when a proposal may affect or limit the rights of individuals.

The prohibition on retrospective criminal laws

Article 15 of the International Covenant on Civil and Political Rights  creates a prohibition on retrospective criminal laws. This is considered to be an absolute right and it is not permissible to limit this right.

This right provides that laws must not impose criminal liability for acts that were not criminal offences at the time they were committed. This flows from the principle that the criminal law should be sufficiently precise to enable persons to know in advance whether their conduct would be criminal. An offence should be given retrospective effect only in rare circumstances and with strong justification.

The Legislative Instruments Act is an Act of general application and protects against any type of retrospective legislative instrument, or provision of a legislative instrument, to the extent that it may adversely affect a person.

Existing subsection 12(2) of the Legislative Instruments Act provides that a legislative instrument or a provision of a legislative instrument has no effect if it commences before the date it is registered and would adversely affect the rights or liabilities of a person (other than the Commonwealth).  However, it is possible for an empowering Act to displace the effect of subsection 12(2) by an express statement in that Act (under subsection 12(3)).

The effect of this provision is that even when a single person is adversely affected by the retrospective law, the legislative instrument has no effect at all, including for those who may be positively impacted by the retrospective law. It would also have no prospective application.

The policy rationale underlying the operation of subsection 12(2) is that, in the absence of a statutory intent to the contrary, a person should not be adversely affected by the retrospective operation of a law. To achieve this objective, the retrospective instrument or provision of an instrument need only be rendered ineffective to the extent that it would adversely affect a person, rather than be rendered ineffective for all persons and for all time.

To meet this policy objective, the Bill amends subsection 12(2) of the Legislative Instruments Act (which will be renamed the Legislation Act 2003 in this Bill) to provide that an instrument or a provision of an instrument that applies retrospectively is of no effect only to the extent that it retrospectively affects the rights or liabilities of a person other than the Commonwealth. This will preserve the retrospective operation of the instrument or provision to the extent it positively impacts on a person, and enable its prospective operation.

Generally, Commonwealth offences are provided in an Act to ensure a high level of parliamentary scrutiny and accountability. However, it is possible that offences be placed in instruments, preferably in regulations or other legislative instruments that are subject to parliamentary disallowance procedures.  This provides an additional layer of scrutiny and accountability.

Importantly, this Bill will retain the protection provided by the existing provisions of the Legislative Instruments Act to ensure that where criminal laws are made through legislative instruments, individuals will be protected from criminal liability for acts that were not criminal offences at the time they were committed. Further, the Act provides that this can only be displaced by an empowering Act.

This provides an important safeguard against the application of retrospective criminal laws without appropriate parliamentary oversight and scrutiny to ensure any limitations on this right are reasonable, necessary and proportionate.



 

Prescription by law

The existing provisions of the Legislative Instruments Act and the amendments made by this Bill help ensure that laws are publicly accessible and consistently available so that individuals are able to understand their rights and obligations at law.

Existing section 14 of the Legislative Instruments Act provides that a legislative instrument can incorporate some or all of another document without having to reproduce the text of that document. This means that the content of the document becomes part of the law. The enabling legislation (an Act or legislative instrument) must provide for this. This is consistent with the principle of ensuring that any measure that seeks to limit rights must have a clear legal basis. Documents that can be incorporated include Commonwealth Acts, disallowable legislative instruments or other written instruments.

Commonwealth Acts and disallowable instruments may be incorporated from ‘time to time’ to enable legislative instruments to remain up-to-date. Documents which are not Acts or disallowable legislative instruments can only be incorporated in the form that exists as at the date of incorporation, unless the enabling legislation provides that they may be incorporated from ‘time to time’.

The Bill enables a notifiable instrument to incorporate documents by reference with the same limitations that already apply to legislative instruments.

Incorporation by reference should be limited to circumstances where the documents being incorporated are publicly available for free or at a minimal cost. It is a fundamental principle of the Legislative Instruments Act, and of ‘access to justice’, that people are easily able to understand their rights and obligations at law. It follows that documents that are incorporated as law must be as easy to access as legislation and legislative instruments. This is also consistent with human rights principles.

The Bill provides that a legislative instrument or a notifiable instrument may authorise or require a form, as in force from time to time, to be incorporated by reference. This is a substantive change and provides an exception to the rules in section 14. The form must be a notifiable instrument (which means it must be registered) or be required to be made publicly available in another specified way. This exception is appropriate because forms do not contain substantive legal content. Instead, they are frameworks for the provision of information required for administrative processes. For this reason, this Bill will not interfere with the protection already available which ensures that individuals are able to readily access the law. 

Conclusion

While this Bill is compatible with human rights, an individual assessment will be required for each Bill that proposes to displace subsection 12(2) of the Legislation Act, in order to determine its compatibility with human rights. Similarly, an individual assessment will be required for each legislative proposal that seeks to incorporate another document by reference. This is important as the documents being incorporated by reference may have the effect of limiting the rights of individuals.

This framework will afford additional protections, by ensuring an appropriate level of Parliamentary oversight of proposed laws that may limit or interfere with human rights.



ACRONYMS AND ABBEVIATIONS

Acts Interpretation Act                       Acts Interpretation Act 1901

Legislation Act                                   Legislation Act 2003

Legislative Instruments Act                Legislative Instruments Act 2003

Register                                               Federal Register of Legislation

Regulations                                         Legislative Instruments Regulations 2004

PRELIMINARY

Item 1 - Short title

Item 1 provides that this Act may be cited as the Acts and Instruments (Framework Reform) Act 2014.

Item 2 - Commencement

Item 2 provides for the commencement of the Act, as set out in the table. 

Subsection (1) provides that each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

The first item of the table provides that sections 1 to 3 and anything in the Act not covered elsewhere by the table commence on the day this Act receives the Royal Assent.

The second item of the table provides that Schedules 1, 2 and 3 commence on a single day to be fixed by Proclamation. However, if the provisions do not commence within the period of 12 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

Subsection (2) provides that any information in column 3 of the table is not part of the Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

Item 3 - Schedules

Item 3 provides that legislation specified in a Schedule to this Act is amended or repealed by items in the Schedule concerned. Any other item in a Schedule to this Act has effect according to its terms.



 

Schedule 1 - Acts, legislative instruments and notifiable instruments   

GENERAL OUTLINE

Schedule 1 implements several key changes to the framework, including:

  • changing the name of the Legislative Instruments Act to the Legislation Act to reflect the consolidation of requirements for publishing Commonwealth legislation
  • clarifying the definition of legislative instrument
  • establishing the new category of notifiable instruments
  • establishing the Federal Register of Legislation (the Register) in place of the Acts database and the Federal Register of Legislative Instruments, and
  • allowing the First Parliamentary Counsel to make editorial changes to Acts and instruments in the Register.

 

Schedule 1 Part 1 - Definitions and key concepts

The key changes in Part 1 include:

  • changing the name of the Legislative Instruments Act to the Legislation Act
  • defining the new category of notifiable instruments, and
  • moving the list of particular classes of instruments in existing section 7 of the Legislative Instruments Act that are declared not to be legislative instruments to the new Regulations.

 

The Bill more clearly defines legislative instruments and legislative character. These concepts are not to be substantially changed by the amendments. However, the amendments address the circularity in the existing definition of legislative instrument, bring together the disparate strands of the definition (currently spread between section 15AE of the Acts Interpretation Act and a number of sections of the Legislative Instruments Act) into a single section and clarify the inter-relationship between the different aspects of the definition. Under these changes, it continues to be possible to declare that an instrument is not a legislative instrument in its enabling Act, with the effect that such instruments are not affected by the Legislation Act. However, it is not possible to declare in an instrument that instruments made under it are not legislative instruments. This is possible under existing section 15AE(3) of the Acts Interpretation Act, which is repealed by the Bill. The purpose of this change is to ensure that provisions which exempt an instrument from the requirements of the Legislation Act are included in an Act or a regulation rather than another instrument. This will facilitate greater parliamentary scrutiny and policy consideration of the exemption.

The definition of ‘legislative instrument’ still excludes rules of court. Regulations and proclamations made under a power delegated by the Parliament, commencement instruments for Acts or legislative instruments, and certain Territory ordinances are declared to be legislative instruments. The list of particular classes of instruments in existing section 7 of the Legislative Instruments Act that are declared not to be legislative instruments will be transferred to the Regulations.

The Bill removes the power of the Attorney-General to certify an instrument as legislative in character. Because a decision to issue a certificate is judicially reviewable, the certificate cannot provide the legal certainty it purports to provide. It is clearer for users of legislation and the Parliament for the enabling legislation to declare whether or not instruments are legislative instruments.

The Bill provides that notifiable instruments are registrable under the Legislation Act, but not subject to parliamentary scrutiny or sunsetting. The category includes:

  • instruments declared to be notifiable instruments by their enabling laws
  • instruments prescribed by the Regulations
  • instruments that are neither legislative instruments or notifiable instruments under their enabling legislation or the Regulations, but are made under a power delegated by the Parliament or another power given by law, and are registered as notifiable instruments
  • commencement instruments for legislative and notifiable instruments, and
  • instruments that include a provision that amends or repeals another notifiable instrument.

 

Many of the amendments in Schedule 1 are consequential upon the creation of this new category of instrument. They expand the principles and rules in the existing provisions to encompass this category.

If an Act or instrument requires an instrument that is not a legislative instrument to be published in the Gazette or in another way, registration as a notifiable instrument will satisfy that requirement.

The Bill also clarifies provisions that relate to the commencement of legislative instruments, retrospective operation and incorporation by reference. Legislative and notifiable instruments will commence on the day after the day of registration, unless the instrument or enabling legislation provides otherwise. The Bill provides that a legislative or notifiable instrument will not apply to a person retrospectively to the extent that it would affect the person’s rights so as to disadvantage them or impose liabilities on the person. This is more targeted than existing section 12(2) of the Legislative Instruments Act, which provides that an instrument will have no effect at all if any provision of the instrument would purport to have such operation. The application of the provision in the Bill can be displaced by expressly providing for retrospective operation in the enabling Act.

Section 14 of the Legislative Instruments Act deals with prescribing matters by reference to other instruments (known as incorporation by reference). The Bill clarifies and expands this provision to enable material to be incorporated into notifiable instruments. Forms approved or prescribed under an Act or instrument that are notifiable instruments or are required to be publically available in another specified way, will be able to be incorporated by reference.

Schedule 1 Part 2 - Registration of Acts and Instruments

The key amendments in Part 2 include:

  • establishing and keeping of the Register
  • setting out the requirements for registering Acts, instruments and other documents on the Register
  • setting out the requirements for the registration of Act compilations and the lodgement and registration of instrument compilations
  • allowing the First Parliamentary Counsel to make editorial changes to registered Acts and instruments
  • allowing the First Parliamentary Counsel to specify detailed requirements for lodgement and registration in rules, and
  • adding more comprehensive provisions regarding authorised versions and bringing Acts within the scope of these provisions.

 

Part 2 rewrites the existing provisions of the Legislative Instruments Act for the registration of legislative instruments. The new provisions also deal with registration of Acts and notifiable instruments. The Register contains Acts, legislative instruments and notifiable instruments as made; compilations of Acts; legislative and notifiable instruments; explanatory statements for legislative instruments; and other relevant documents and information which the First Parliamentary Counsel considers to be useful to users. The Register is taken to be a complete and accurate record of all registered Acts, legislative instruments and notifiable instruments.

The Bill provides for lodgement, by the rule-makers, of legislative and notifiable instruments for registration. The new provisions deal with arrangements for lodgement, registration and tabling of explanatory statements for legislative instruments. These are expanded to provide for the lodgement, registration and tabling of supplementary and replacement explanatory statements. However, the Bill does require the registration of explanatory statements for notifiable instruments.

The rule-maker for a registered instrument or the Minister responsible for administering a registered Act will be required to notify the First Parliamentary Counsel of certain events which affect the currency or accuracy of the Register. The rule-maker or responsible Minister will also be required to notify the First Parliamentary Counsel if they become aware of an error in the Register relating to an Act or instrument or if a provision of an Act or instrument is declared invalid or unenforceable.

The existing rule that legislative instruments to which the Act applies are not enforceable unless they are registered as legislative instruments will be maintained.

Compilations

The Bill clarifies provisions concerning compilations and their registration. It also inserts additional provisions reflecting existing practice regarding the preparation of compilations of instruments by rule-making agencies. The Bill expands the existing compilation provisions for legislative instruments to apply to notifiable instruments and to allow for the registration of Act compilations prepared by the Office of Parliamentary Counsel. Certain required compilation events for legislative or notifiable instruments (for example disallowance or amendment of an instrument) trigger an automatic requirement on the rule-maker to lodge a compilation for registration. For Acts, a required compilation event triggers an obligation on the First Parliamentary Counsel to register a compilation.

Certain other discretionary compilation events for legislative or notifiable instruments give the First Parliamentary Counsel the power, by notice, to require the rule-maker to lodge a compilation. For example, the amendment of a legislative instrument following the automatic repeal of amending, repealing and commencement provisions would be a discretionary compilation event . The First Parliamentary Counsel has the power to register a compilation of an Act after a discretionary compilation event. The First Parliamentary Counsel also has the power to register a compilation of an instrument under his or her own initiative, even if there is no compilation event.

Editorial and other changes in compilations

The Bill enables the First Parliamentary Counsel to make minor editorial changes to an Act or a legislative or notifiable instrument in preparing a compilation, to correct an error, give effect to a misdescribed amendment, or bring the Act or instrument into line with legislative drafting practice. These changes must not alter the effect of the legislation. Editorial changes include matters of spelling, punctuation, grammar, numbering and gender-related language. This allows minor errors to be corrected and changes to be made for reasons of style and consistency. The power to make editorial changes is intended to reduce the time needed for parliamentary consideration of these matters and ensure that readers of legislation can clearly see the law as in effect in the Act or instrument.

In addition, some presentational and other non-substantive changes may be made in preparing compilations to update the layout or style of an Act or legislative or notifiable instrument, or to insert or make changes to text in the compilation that is not formally a part of the Act or instrument. This provides a statutory basis for longstanding Commonwealth practice.

Authorised versions and judicial notice

Section 22 of the Legislative Instruments Act provides for extracts from the Federal Register of Legislative Instruments to be considered to be complete and accurate records of legislative instruments and capable of judicial notice, so that proof of various matters is not required in proceedings in a court or tribunal. Section 5 of the Acts Publication Act provides similarly for Acts.

The Bill replaces these provisions with more comprehensive arrangements relating to ‘authorised versions’ of documents, based on the approach in the Legislation Act 2001  (ACT). The new provisions provide for authorised electronic and printed versions of Acts, legislative and notifiable instruments, compilations and explanatory statements. Generally, an electronic copy of a registered law or explanatory statement will be an authorised version if it is downloaded from the approved website or if the copy indicates that it is authorised in a prescribed way. A printed copy will be an authorised version if it is produced directly from another authorised version.

The existing provisions for judicial notice of Acts (in the Acts Publication Act) and legislative instruments (in the Legislative Instruments Act) are combined and extended to cover notifiable instruments and explanatory statements. In proceedings in a court or tribunal, proof is not be required of matters such as the day of assent of an Act, the day of making of a registered legislative instrument or notifiable instrument, the text of a registered Act, instrument or explanatory statement, or the commencement of a registered Act or instrument.

Schedule 1 Part 3 - Legislative and Notifiable Instruments generally

The key amendments in Part 3 include:

  • amendments consequential to moving the table of instrument classes in existing section 44 of the Legislative Instruments Act, which are not subject to disallowance, to the Regulations
  • amendments consequential to moving the list of instrument classes in existing section 54 of the Legislative Instruments Act, which are not subject to sunsetting, to the Regulations
  • enabling amendment or repeal of multiple instruments to be made more efficiently through a single regulation initiated by the Attorney-General, and
  • extending the provisions for automatic repeal of spent or amending instruments to cover notifiable instruments.

 

Part 3 deals with drafting standards, consultation, parliamentary scrutiny and sunsetting of legislative instruments. Some of the amendments also apply to notifiable instruments.

The existing provisions regarding drafting standards are extended to apply to notifiable instruments. The consultation requirements are amended so that the requirement to undertake appropriate consultation (which can include no consultation) applies equally to instruments that affect business and/or competition and those that do not. The list of circumstances in which consultation may be unnecessary or inappropriate is removed. The consultation requirements for legislative instruments do not apply to notifiable instruments.

The Bill clarifies the provisions for the tabling of explanatory statements, disallowance of legislative instruments, and the processes for legislative instruments to be remade after disallowance. The list of legislative instrument classes which are not subject to disallowance in existing section 44 will be removed and placed in the Regulations and consolidated with existing exemptions prescribed by regulation. Additional disallowance exemptions can be prescribed by regulation, and it will continue to be possible to declare in the enabling Act that an instrument is not subject to disallowance. Notifiable instruments will not be subject to disallowance. 

Existing section 48 of the Legislative Instruments Act provides that a legislative instrument, or a provision of a legislative instrument, cannot be remade within six months of the instrument or provision being disallowed, unless:

  • the relevant House rescinds the motion of disallowance (where disallowance was by resolution), or

·          the relevant House authorises the remaking of the instrument or provision (where an instrument or provision is taken to be disallowed).

 

The Bill removes this potentially confusing and unnecessary distinction by providing for a single process to apply to all disallowed instruments or provisions.

The provisions for automatic repeal of spent legislative instruments are clarified and extended to apply to notifiable instruments. A legislative or notifiable instrument (or a provision of a legislative or notifiable instrument) that only repeals, amends or commences another instrument will be automatically repealed after it has had this effect.

It is still possible to repeal legislative instruments by regulation if the Attorney-General is satisfied that they are spent or no longer required. This mechanism also applies to notifiable instruments.

Existing section 54 of the Legislative Instruments Act provides a list of legislative instruments and classes of legislative instruments which are not subject to the sunsetting provisions in existing Part 6 of the Act.  This list will be removed and transferred to the Regulations where the list will be consolidated with a list of other existing exemptions from the sunsetting provisions.

Regulations made under the Legislation Act that prescribe instruments not to be legislative instruments, or that exempt instruments from disallowance or exempt instruments from sunsetting, are not themselves subject to sunsetting. Similarly, the amendments will exempt from sunsetting those regulations which prescribe instruments as legislative or notifiable instruments. Further sunsetting exemptions can be prescribed by regulation. The sunsetting provisions do not apply to notifiable instruments.

Any requirement to publish a legislative instrument in the Gazette , whether in enabling legislation made before or after the commencement of the Legislative Instruments Act, will be taken to be satisfied by registration on the Register. This approach is retained in the Bill.

The Bill provides greater flexibility by providing that a requirement to publish in another way, such as on a website or in a newspaper, is also taken to be satisfied by registration if the enabling legislation was enacted prior to the commencement of the Legislative Instruments Act. This will reduce the number of different publication methods being used and enhance the status of the Register as the central repository of instruments (and Acts and other documents). However, requirements for publication otherwise than in the Gazette in enabling legislation that is enacted (or made) after the commencement of the Legislative Instruments Act will be taken to be in addition to the requirement to register the relevant instruments on the Register.

The Bill enables amendment or repeal of multiple instruments through a single regulation made by the Governor-General on the advice of the Attorney-General, including where the instruments are made under different enabling Acts. This provides a simple mechanism where several instruments need to be amended or repealed, for example following a thematic review of instruments relating to a particular subject matter. The Attorney-General is required to be satisfied that the rule-maker has agreed to the amendment or repeal of each of those instruments.

Schedule 1 Part 4 - Repeals

The Acts Citation Act 1976 is repealed by the Bill because it consists entirely of amending provisions, which have all come into operation.

The Acts Publication Act is repealed by the Bill as a result of the transfer of its provisions into the new Legislation Act, as provided for by Parts 1-3 of Schedule 1 to the Bill.

The Bill also repeals the Ordinances and Regulations (Notification) Act 1972 . It deems Gazette notification for ordinances and regulations made before the commencement of the Legislative Instruments Act to be sufficient to satisfy publication requirements in enabling laws. To the extent that this rule may still be required, a transitional provision in Part 7 of Schedule 1 to the Bill will continue its operation, and the Ordinances and Regulations (Notification) Act itself can be repealed.

 

 

Schedule 1 Part 5 - Amendment of other Acts

Part 5 extends the application of the Acts Interpretation Act to notifiable instruments. For example, the rules regarding the citation of Acts and instruments will be extended to apply to notifiable instruments. Section 46AA of the Acts Interpretation Act, regarding incorporating by reference in non-legislative instruments, is also expanded to apply to instruments which are neither legislative or notifiable instruments. The provision allows forms which are notifiable instruments or are required to be made publically available to be incorporated by reference. This mirrors the amendments relating to incorporation by reference for legislative and notifiable instruments.

The Bill repeals section 46B of the Acts Interpretation Act, which provides for non-legislative disallowable instruments. Part 5 makes consequential amendments to various laws within the Defence portfolio which provide for instruments to be made to which section 46B of the Acts Interpretation Act applies. All of these instruments are able to be treated as legislative instruments with no substantive changes in the effect of that legislation. As a result, the Bill reduces the number of different disallowance regimes for instruments and enhances the status of the Register as the central repository and authoritative source of Commonwealth legislative instruments. It will also encourage a gradual reduction in separate publication procedures. New instruments made under the amended defence laws will be legislative instruments and subject to sunsetting.

Part 5 also makes consequential amendments to other legislation to address matters such as the change of the name of the Legislative Instruments Act to the Legislation Act, the transfer of tables that list exemptions to the Regulations, and amendments to provisions regarding rules of court.

Schedule 1 Part 6 - References to the Legislative Instruments Act 2003

Part 6 provides for references to the Legislative Instruments Act in legislation in force before the commencement of the Legislation Act to be read as though they were references to the relevant parts of the Legislation Act. This Part does not textually amend other Acts, but ensures that references to the Legislative Instruments Act operate as though they were references to the Legislation Act.

Schedule 1 Part 7 - Application, Savings and Transitional provisions

Part 7 sets out a general rule that the provisions of the Legislative Instruments Act as amended by Schedule 1 apply to an instrument made before, on or after the commencement of the amendments in Schedule 1. Various exceptions to this rule, and special cases, are also set out in this Part.

The commencement of the amendments in Schedule 1 of the Bill does not alter the status of existing instruments as legislative or non-legislative instruments. Instruments that were legislative instruments before the commencement of Schedule 1 continue to be legislative instruments. Instruments that were not legislative instruments before commencement continue to be taken not to be legislative instruments unless they are registered as legislative instruments after the commencement of the Bill. The Bill preserves the effect of a provision of a legislative instrument made prior to the commencement of Schedule 1 which declares that instruments made under that instrument are not legislative instruments. Those instruments will only become legislative instruments by being registered as legislative instruments.

The Bill preserves the effect of provisions of Acts which declare that subsection 12(2) of the Legislative Instruments Act (regarding retrospective application) does not apply to instruments made under a particular power.

The Acts database (for Acts and compilations) and the Federal Register of Legislative Instruments database (for legislative instruments, compilations and explanatory statements) are incorporated into the new Register. Instruments, compilations and explanatory statements that were registered on the Federal Register of Legislative Instruments prior to the commencement of Schedule 1 are taken to be registered on the Register. Acts that were in the Acts database prior to commencement of Schedule 1 are also taken to be registered on the Register.

PART 1 - DEFINITIONS AND KEY CONCEPTS

Legislative Instruments Act 2003

Item 1 - Title

Item 1 replaces the long title of the Legislative Instruments Act with a new title to reflect the expanded scope of the regime made by the Bill. The long title identifies that the Act provides for public access to Acts and instruments, for the making, parliamentary scrutiny and sunsetting of legislative instruments and for the repeal of spent instruments and provisions, and for other purposes.

Item 2 - Part 1 (heading)

Item 2 repeals the heading of Part 1 and inserts the headings ‘Chapter 1—Introduction’ and ‘Part 1—Preliminary’.

Item 3 - Section 1

Item 3 amends section 1 to change the short title of the Legislative Instruments Act to the Legislation Act 2003 . Two notes are inserted to assist users. The first note identifies that this item amends the short title of the Act. It refers to the rule in section 10 of the Acts Interpretation Act to note that if another amendment to this Act refers to the previous short title, the Legislative Instruments Act 2003 , then the other amendment will have effect after the commencement of this item as if it amends the Act under its new short title, the Legislation Act. 

The second note refers the user to Part 6 of this Schedule. Part 6 provides that references to the Legislative Instruments Act in force before the commencement of the Legislation Act are to be read as though they were references to the relevant parts of the Legislation Act.

Item 4 - Section 2A

Item 4 repeals section 2A which provides that Acts specified in Schedules to the Legislative Instruments Act are amended according to the applicable items in the Schedule. This section is not required because the Legislation Act does not contain Schedules.

Item 5 - Section 3

Items 5-10 amend section 3, which states the object of that Act. The amendments reflect the expanded scope of the Legislation Act, which covers the registration and publication of Acts as well as instruments.

Item 5 amends the object of the Act to identify that the Act provides a comprehensive regime for the management of ‘Acts and instruments’. This expands the scope of the object from being limited to Commonwealth legislative instruments.

Item 6 - Paragraph 3(a)

Item 6 replaces paragraph 3(a) with a new paragraph which states that the object includes establishing the Register as a permanent repository of Acts, legislative instruments, notifiable instruments, compilations and other documents and information. 

Paragraph 3(aa) is also inserted to state that the object includes giving the First Parliamentary Counsel power to make certain editorial and other changes in preparing compilations of Acts, legislative instruments and notifiable instruments, as long as these changes to do not change the legal effect.

Item 7 - Paragraph 3(c)

Item 7 amends paragraph 3(c) which states that the object includes encouraging high standards in the drafting of legislative instruments, to extend it to notifiable instruments. This reflects that the Legislation Act deals with both legislative instruments and notifiable instruments.

Item 8 - Paragraph 3(d)

Item 8 amends paragraph 3(d),which states that the object includes improving public access to legislative instruments, to encompass ‘Acts and instruments’. This reflects that the Legislation Act deals with Acts, legislative instruments, and notifiable instruments.

Item 9 - Paragraph 3(ea)

Item 9 substitutes a new paragraph 3(ea) to state that the object includes the automatic repeal of spent legislative and notifiable instruments, or the provisions of those instruments, which only provide for amendment, repeal or commencement of Acts or other instruments. This amendment reflects that the provisions for the automatic repeal of legislative instruments have been expanded to the new category of instruments, notifiable instruments.

Item 10 - At the end of section 3

Item 10 inserts a new paragraph 3(g) to state that the object includes the enabling of regulations to be made under this Act to amend or repeal legislative instruments and notifiable instruments in some circumstances. This reflects the new regulation-making power inserted by the Bill in new section 61 of the Legislation Act (see item 87).

Item 11 - After section 3

Item 11 inserts a new section 3A which is a simplified outline of the Legislation Act explaining the key elements of the regime. This includes noting that the Act provides public access to Commonwealth Acts, legislative instruments and notifiable instruments, including authorised versions, through the Register. The Register is maintained by the First Parliamentary Counsel, who is also given the power to make certain editorial and other changes in preparing compilations of Acts and instruments. Legislative instruments are subject to rules regarding consultation, tabling in the Parliament, disallowance, and sunsetting.

Item 12 - Sections 4 to 12

Item 12 repeals sections 4 to 12 and replaces these with new provisions.

New section 4 - The Dictionary

New section 4 replaces the definitions section with a dictionary of terms used in the Legislation Act. Additional terms are included, and terms omitted, in the Dictionary to reflect the use of terms in the Legislation Act. This is outlined below.

The new terms ‘ amend’, approved website’ and ‘ authorised version’ (of a registered law or explanatory statement) are defined by reference to the definitions in new subsection 5(1), section 15C and section 15ZA respectively. 

The definition of ‘certified true copy’ in the Legislative Instruments Act is not reproduced. This definition is redundant because the only provisions which used this term, sections 25 and 29, are repealed by the Bill.

A definition for ‘ commencement instrument is inserted. This term means an instrument providing solely for the commencement of an Act or legislative or notifiable instrument, or a provision of an Act or instrument. This definition applies to the new category of instrument created by the Bill, notifiable instruments.

The definition of ‘commencing day’ in the Legislative Instruments Act is not reproduced in new section 4. This definition is no longer needed because the amendments in the Bill replace references to ‘the commencing day’ with the date on which the Legislative Instruments Act commenced, 1 January 2005.

A revised definition of ‘ compilation ’ is included. A compilation of an Act, legislative instrument or notifiable instrument, is a document showing the text of the Act or instrument as modified, amended or would be amended and in force on a day stated in the document. This change to the definition reflects the expanded scope of the Legislation Act to deal with Acts and notifiable instruments as well as legislative instruments.

A new term ‘ compilation date ’ is defined by reference to the new definition of compilation. That definition provides that the compilation date is the date stated in the compilation as the date on which the Act or instrument is in force as amended (if at all), or the date on which the Act or instrument would be in force as amended once certain amendments that have not commenced have taken effect, or the date on which the Act or instrument would be in force as modified by an Act or instrument.

A new term ‘ disallowable legislative instrument is defined as a legislative instrument to which section 42 applies, which means that the instrument would be subject to parliamentary disallowance.

A new term ‘ discretionary compilation event is defined in relation to an Act, legislative instrument or notifiable instrument, by reference to new section 15Q. These are events for which the First Parliamentary Counsel may require a rule-maker to lodge a compilation.

A new term ‘ editorial change ’ is defined in relation to an Act, legislative instrument or notifiable instrument by reference to new section 15X. Editorial changes include changes which go to matters of spelling, punctuation, numbering and cross referencing, among other matters. Editorial changes must not change the legal effect of the Act or instrument (section 15V).

A revised definition of ‘ enabling legislation ’ is included. The term is defined in relation to a legislative instrument or notifiable instrument as the primary law that authorises the making of the instrument.

A revised definition of ‘ explanatory statement is included. This directs the reader to the definition of the term in new section 15J, which also provides the requirements for the various types of explanatory statements.

The new term ‘ Federal Register of Legislation ’ is defined as the Register established and maintained under new section 15A. This section requires the First Parliamentary Counsel to establish and maintain a register of Acts, legislative and notifiable instruments. It also sets out what the Register must contain and additional documents that it may contain.

The definition of ‘ First Parliamentary Counsel is retained. This term refers to the person appointed under subsection 4(1) of the Parliamentary Counsel Act 1970 .

The definition of ‘inappropriate use of gender specific language’ in the Legislative Instruments Act is not reproduced. This term is used only once, in subsection 16(3), where its meaning is incorporated by item 31 of Schedule 1.

A new term ‘ initial explanatory statement ’ is defined by directing the reader to the definition in new section15J. This section provides for initial explanatory statements, which explain the purpose and operation of instruments, to be replaced after tabling by replacement explanatory statements. Supplementary explanatory statements, which amend an additional or replacement explanatory statement, are also provided for.

A revised definition of ‘ instrument is included. The term is defined as ‘any writing or other document, and includes an instrument in electronic form’. This definition clarifies that instruments in electronic form are encompassed by the term. ‘ Writing ’ is defined in section 2B of the Acts Interpretation Act as including ‘any mode of representing or reproducing words, figures, drawings or symbols in a visible form’.

A revised definition of ‘ legislative instrument is included. It directs the reader to the new definition in new section 8.

The definition of ‘lodge’ in the Legislative Instruments Act is not reproduced. This definition is not required because the amended provisions refer to ‘lodgement for registration’ and new section 15G requires lodgement for registration to be in accordance with the registration rules to be made by the First Parliamentary Counsel.

A revised definition of ‘ making ’ is included in relation to an instrument, to encompass the making of notifiable instruments as well as legislative instruments. The definition refers to the ‘signing, sealing or other endorsement of the instrument’ by the person or body with power to make it. The phrase ‘whereby it becomes or became that legislative instrument’ is omitted because certain instruments will become legislative or notifiable instruments by being registered rather than by being signed, sealed or endorsed.

A new term ‘ modify ’ is defined by directing the reader to subsection 5(2), where modify is defined to mean changing the operation of the Act or instrument without amending its text.

A new term ‘ notifiable instrument ’ is defined by directing the reader to the definition of the term in section 11.

The definition of ‘ Office of Parliamentary Counsel ’ is retained. This term means the office established by subsection 2(1) of the Parliamentary Counsel Act.

The definition of ‘original legislative instrument’ is not reproduced. This term is used in various sections of the Legislative Instruments Act which are repealed by the Bill. It is redefined in the amended subsection 46(1) and is only used in section 46.

A new definition for ‘ power delegated by the Parliament ’ is inserted. An instrument made under a power delegated by the Parliament refers to: (a) an instrument made under a power delegated by the Parliament to a person or body and then, under the authority of the Parliament, further delegated to another person, and (b) an instrument that may be made under a power delegated by the Parliament as well as under a power given otherwise by law (for example, a prerogative power that is also provided for by an Act). This expands on the existing definition in section 8 to include this second category, which covers cases such as Letters Patent issued by the Governor-General to establish a Royal Commission under the Royal Commissions Act 1901 .

A new term ‘ primary law ’ is defined to mean an Act or an instrument made under an Act, or a provision of an Act or an instrument made under an Act. This means that the term ‘enabling legislation’ is limited to Acts or instruments made under Acts.

The definitions of register and Register are replaced by a single definition for ‘ register ’. The term ‘register’ means to register a document on the new Federal Register of Legislation, as established under new section 15A.

A new term ‘ registered law or explanatory statement’ is defined by directing the reader to new section 15Z.

A new term ‘ repeal ’ is defined in relation to an instrument or a provision of an instrument, to include to revoke or rescind the instrument or provision. A note clarifies that section 5 defines amend, for a provision of an instrument, to include the repeal of a provision of the instrument.

A new term ‘ replacement explanatory statement’ is defined by directing the reader to section 15J which provides for initial explanatory statements, which explain the purpose and operation of instruments, to be replaced after tabling by replacement explanatory statements.

A new term ‘ required compilation event’ is defined for an Act, legislative instrument or notifiable instrument, as that defined in new section 15Q. New section 15Q provides that a required compilation event occurs for an Act, legislative instrument or notifiable instrument when: it is expressly amended, a disallowable legislative instrument is disallowed, an amending instrument is disallowed, a provision is repealed, lapses or expires, and other events prescribed by the rules occur.

A new term ‘ responsible person ’ is defined in place of the existing definition of responsible Minister . The definition of responsible person directs the reader to section 6, which explains that responsible person means the Minister responsible for administering an Act and the rule-maker for an instrument. This expanded concept is required due to the expanded scope of the Legislation Act, which deals with Acts as well as instruments.

A definition of ‘ rule-maker ’ is retained but directs the reader to a definition in new section 6. New section 6 provides that the rule-maker for an instrument made by the Governor-General under enabling legislation is the Minister currently responsible for administering the relevant provision of the enabling legislation. For other instruments made by the Governor-General, the rule-maker is the Prime Minister or a Minister prescribed by regulation. For instruments made by a person other than the Governor-General, the rule-maker is a person authorised to make the instrument.

A new term ‘ rules ’ is defined to mean rules made by the First Parliamentary Counsel under new section 61A.  New section 61A provides that the First Parliamentary Counsel may, by legislative instrument, make rules prescribing matters required or permitted by this Act to be prescribed by the registration rules.

The definition of ‘Second Parliamentary Counsel’ is not reproduced. The term is only used in paragraph 58(a). The amended paragraph 58(a) of the Legislation Act incorporates the content of the definition, so the definition is not required in the Dictionary.

The definition of ‘State’ is not reproduced. The term is only used in the list of instruments declared not to be legislative instruments in existing section 7. As this list is omitted from the Legislation Act and will be transferred to the new Regulations, it is not necessary to define this term.

A new term ‘ supplementary explanatory statement ’ is defined and directs the reader to section 15J. Section 15J provides that a supplementary explanatory statement amends an initial explanatory statement or a replacement explanatory statement.

A new term ‘ text ’ is defined to include ‘any writing’. This definition is inserted for clarity.

The definition of ‘working day’ is not reproduced. This definition is redundant as it is only used in subsection 4(2) and section 11 and both of these provisions are repealed by the Bill.

Subsections 4(2) and 4(3) are repealed. Subsection 4(2) is redundant because it sets out the concept of working days is to be applied, and this term is not used in the Legislation Act. Subsection 4(3) is redundant because it provides for the concept of rule-maker, which is now provided for in section 6 of the Legislation Act.

New section 5 - Definitions of amend and modify

New section 5 of the Legislation Act clarifies the use of the terms ‘amend’ and ‘modify’. For an Act or instrument, this includes repealing, omitting, inserting, substituting, renumbering or relocating a provision or part of a provision. ‘Amend’ also covers amendment of an Act or instrument by implication. An implied amendment occurs when an Act or instrument is amended indirectly. Usually, amendments are in the form of a direct command to an editor (for example, omit ‘x’, substitute ‘y’). However, sometimes a different style of amendment such as a narrative style may be used. For example, an amendment may provide that ‘the Charitable Trust Audit Determination 2000 is amended by imposing as a pre-requisite for the registration of an auditor under section 5 that the auditor be a member of the Charitable Trust Auditors’ Professional Association’. This amendment alters the text of the Charitable Trust Audit Determination, but does not provide for exactly how this is to be done. The amendment to the Determination is implied rather than express.

‘Amend’ also extends to changing the text of an Act or instrument in any other way. Subsection 5(1) states that ‘ amend includes. . .’. This is not intended to be an exhaustive list of the changes that are covered by the term ‘amend’. Note 1 explains that ‘repeal’ includes revocation or rescission of an instrument or a provision of an instrument, as defined in new section 4. Note 2 clarifies the time at which an Act or instrument or provision is amended. Under subsection 15Q(3) amendment occurs when the amending Act or provision commences.

‘Modify’ is defined in subsection 5(2) to mean changing the operation of an Act or instrument without amending its text. For example, an Act may provide that certain provisions of the Legislation Act do not apply to certain instruments made under that Act. This modifies the operation of the Legislation Act in relation to those instruments.

New section 6 - Definitions of rule-maker and responsible person

New section 6 sets out the definitions of ‘rule-maker’ for an instrument and ‘responsible person’ for an Act or an instrument. 

New paragraph 6(1)(a) provides that the rule-maker for an instrument made by the Governor-General under enabling legislation is the Minister currently responsible for administering the relevant provision of the enabling legislation. This paragraph reflects the existing subparagraph 4(3)(a)(ii), along with  two additional elements. The new provision applies whether or not the instrument may also be made under any other power, to cover cases in which the Governor-General can make the same instrument either under enabling legislation or prerogative powers. The phrase ‘currently responsible’ is included to ensure that the definition is not restricted to the person who actually made the instrument, but indicates the person with responsibility at the time at which the provision that refers to the rule-maker is being applied.

Paragraph 6(1)(b) provides that for instruments made by the Governor-General other than under enabling legislation (such as under prerogative powers), the rule-maker is the Prime Minister or a Minister prescribed by regulation. This is an additional limb to the rules in existing subsection 4(3). The Prime Minister is generally the rule-maker in this scenario. The power to make regulations to prescribe a different rule-maker is inserted for flexibility.

Paragraph 6(1)(c) provides that for instruments made by a person other than the Governor-General, the rule-maker is a person currently authorised to make the instrument. This is similar to existing subparagraph 4(3)(a)(iii), which provides that where a legislative instrument is authorised to be made by a person other than the Governor-General or a body, the rule-maker will be that person or body. The phrase ‘currently authorised’ is included to ensure that the definition is not restricted to the person who actually made the instrument, but indicates the person with responsibility at the time at which the provision that refers to the rule-maker is being applied.

New subsection 6(2) defines responsible person for an Act or a provision of an Act to mean the Minister currently responsible for administering the Act or provision. The responsible person for an instrument is the rule-maker for the instrument. In the existing Legislative Instruments Act, the term responsible Minister is defined only with reference to legislative instruments. The expanded concept of responsible person is required due to the expanded scope of the Legislation Act, which deals with Acts as well as instruments.

New subsection 6(3) provides that if more than one Minister is currently responsible for administering an Act or a provision of an Act, they are each taken to be a responsible person. Any Minister who is a responsible person may perform functions or duties under the Act with the effect of discharging those functions or duties.

This item also inserts a new heading for Part 2 of the Legislation Act, ‘Key concepts for legislative instruments and notifiable instruments’ and a new section 7 which sets out a simplified outline to guide the reader through Part 2. The simplified outline provides a general overview of what are taken to be legislative instruments and notifiable instruments, and outlines other key concepts.

New section 8 - Definition of legislative instrument

New section 8 consolidates and expands on section 5 of the Legislative Instruments Act and section 15AE of the Acts Interpretation Act (which will be repealed by the Bill). This enables provisions relating to legislative instruments to be located in a single Act. Some of the rules in section 15AE of the Acts Interpretation Act are incorporated into the new section 9 of the Legislation Act, as set out below.

New subsection 8(1) provides that an instrument is a legislative instrument to which subsections (2), (3), (4) or (5) apply, that is, where:

  • a primary law provides for something to be done by legislative instrument (subsection 8(2))
  • the instrument is registered on the Register (subsection 8(3))
  • the instrument determines or alters the law (subsection 8(4))

·          it is declared by other sections of the Legislation Act to be a legislative instrument (subsection 8(5)).

 

Note 1 clarifies that legislative instrument may be described in different ways in enabling legislation, including as regulations, rules, ordinances or determinations.

New subsection 8(2) preserves the rule in section 15AE(1) of the Acts Interpretation Act. It provides that if a primary law gives power to do something by legislative instrument, then it must be done by instrument and that instrument is a legislative instrument. This is a deeming provision which ensures that something that is described in a primary law as a ‘legislative instrument’ is treated as a legislative instrument. For example, a primary law may provide that ‘the Minister may, by legislative instrument, determine licence conditions for the purposes of this section’. Instruments made by the Minister under that provision would be legislative instruments. This subsection reflects the usual drafting practice of declaring in the primary legislation whether or not the instruments will be legislative, and is an expansion of the existing definition of legislative instrument in the Legislative Instruments Act, to provide greater clarity.

New subsection 8(3) preserves the rule in subsection 5(3). It provides that any instrument made under a power delegated by the Parliament and registered on the Register as a legislative instrument is a legislative instrument. This applies whether or not the instrument is legislative in character. The note to subsection 8(3) clarifies that an instrument made under a power delegated by the Parliament may be a legislative instrument because it is registered as one, regardless of whether it is a legislative instrument or not under another provision of section 8. This implements recommendation 2 of the 2008 Review of the Legislative Instruments Act 2003, which supported the practice of declaring an instrument to be a legislative instrument in the enabling legislation.

New subsection 8(4) preserves the rule in existing subsection 5(4). It provides that an instrument is a legislative instrument if the instrument is made in the exercise of a power delegated by the Parliament and any provision of that instrument:

  • determines or alters the content of the law, rather than determining cases or particular circumstances in relation to which the law, as set out in an Act or another legislative instrument or provision, is to apply, and
  • any provision 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.

 

This provision is based on the new definition of legislative instrument proposed by the 2008 Review of the Legislative Instruments Act 2003 . The review committee found that there were problems with the definition in section 5 of the Legislative Instruments Act, on the basis that it was circular in defining a legislative instrument as an instrument that is of a legislative character. It is now common practice to declare in the primary legislation whether or not the instrument will be a legislative instrument, and for this reason, the review committee suggested that the circularity in the definition could be removed.

The phrase ‘as set out in an Act or another legislative instrument’ is included in subparagraph 8(4)(b)(i) to clarify which law is being applied and what it is being applied to. The word ‘particular’ is added to subparagraph 8(4)(b)(i) for emphasis and greater clarity about what determining the law means. An instrument is a legislative instrument if any provision of the instrument meets this definition. This means that if some but not all of the provisions of the instrument meet the definition, the entire instrument is a legislative instrument. This ensures the instrument is treated as a legislative instrument for the purposes of being subject to the requirements of the Legislation Act, including publication and parliamentary scrutiny.

New subsection 8(5) provides that an instrument is a legislative instrument if it is declared by section 10 or 57A to be a legislative instrument. The note explains that new section 10 declares regulations and certain other types of instruments to be legislative instruments and section 57A declares certain other instruments (made before the commencement of the Legislative Instruments Act) to be legislative instruments. New subsection 8(5) is inserted to assist the reader to find other provisions relevant to the question of whether an instrument is a legislative instrument.

New subsection 8(6) provides the circumstances where an instrument is not a legislative instrument, despite subsections 8(4) and 8(5). Firstly, if an instrument is made under an Act which declares the instrument not to be a legislative instrument, then the instrument is not a legislative instrument (paragraph 8(6)(a)). An Act that is not the enabling Act may declare the instrument not to be a legislative instrument.

This represents a change from subsection 15AE(3) of the Acts Interpretation Act which allows an enabling Act or an instrument to declare that an instrument is not a legislative instrument. Subsection 15AE of the Acts Interpretation Act will be repealed. This change ensures that provisions which exempt an instrument from the requirements of the Legislation Act (as applied to a legislative instrument) are included in an Act, and cannot be exempted through an instrument. This will facilitate greater parliamentary scrutiny and policy consideration of the exemption.

Secondly, an instrument is not a legislative instrument where it is prescribed by regulation not to be a legislative instrument (paragraph 8(6)(b). This reflects existing section 7, which includes a table of instruments that are declared not to be legislative instruments, including those prescribed by regulation. This table of declared instruments will be transferred to the Regulations. The Regulations will consolidate the table of declared instruments with a list of declared instruments that are currently listed in the Legislative Instruments Regulation 2004. This will assist users to locate instruments declared not to be legislative instruments.

New subsection 8(7) preserves the rule in existing subsection 5(3). It disapplies the operation of subsection 8(6) where an instrument is a legislative instrument under subsection 8(3) because it is registered as a legislative instrument on the Register. This means that registration as a legislative instrument will make an instrument a legislative instrument, even where it is declared not to be in the enabling Act or in the regulations.

New subsection 8(8) clarifies that despite anything else in this section, certain categories of instruments are not legislative instruments and cannot become legislative instruments by being registered. These are:

  • an instrument that is a notifiable instrument because of subsection 11(1) of the Legislation Act (paragraph 8(8)(a)). Subsection 11(1) declares that if a primary law gives power to do something by notifiable instrument, then the thing must be done by instrument and that instrument is a notifiable instrument.
  • a commencement instrument (paragraph 8(8)(b))
  • a compilation of a legislative instrument or a notifiable instrument (paragraph 8(8)(c))
  • rules of court, or a compilation of rules of court (paragraph 8(8)(d))
  • an explanatory statement for a legislative instrument or rules or court (paragraph 8(8)(e)).

 

Paragraph 8(8)(a) is included to address potential confusion if an instrument is described as a notifiable instrument in the primary law but has legislative character, or the rule maker wishes to register it as a legislative instrument. Under this paragraph, it will not be possible for such an instrument to become a legislative instrument by being registered. As the note states, rules of court are registered under the Legislation Act and treated as though they were legislative instruments.

New section 9 - Inference of legislative character

New section 9 preserves subsections 15AE(2), (4) and (5) of the Acts Interpretation Act which are repealed by the Bill. This provision provides for the circumstances in which an inference of legislative character should not be made.

New subsection 9(1) clarifies that simply because subsections 8(2), (3) or (5) may provide that an instrument is a legislative instrument if it is described, registered or declared to be so, this does not imply that the instrument is, or must be, of legislative character (within the ordinary meaning of ‘legislative character’). This subsection is designed to ensure that no inferences about legislative character are drawn merely from the declaration of an instrument as a legislative instrument. This preserves the rule in subsection 15AE(2) of the Acts Interpretation Act.

 

New subsection 9(2) provides that the fact that under subsection 8(6) an instrument is not a legislative instrument (because it is declared by an Act not to be a legislative instrument or prescribed as not being a legislative instrument by regulation) does not imply that the instrument is not of legislative character. This preserves the rule in subsection 15AE(4) of the Act Interpretation Act.

New subsection 9(3) provides that in determining whether an instrument made under a primary law is a legislative instrument under subsection 8(4) (definition of legislative instrument), no inference may be drawn from the fact that an instrument made under another provision of that primary law or, any other primary law, is or is not a legislative instrument. This preserves the rule in subsection 15AE(5) of the Acts Interpretation Act.

New section 10 - Instruments declared to be legislative instruments

New section 10 replaces existing section 6. This provision sets out the instruments which are declared to be legislative instruments, for the purposes of new subsection 8(5). This means that these instruments are legislative instruments. Instruments declared to be legislative instruments are:

  • a regulation or Proclamation made under a power delegated by the Parliament, other than a Proclamation that is a commencement instrument (paragraph (1)(a))
  • a Territory ordinance covered by subsection (2), or a regulation, rule or by-law under such an ordinance (paragraph (1)(b))
  • an instrument prescribed by regulation (paragraph (1)(c))
  • an instrument that includes a provision that amends or repeals another legislative instruments (paragraph (1)(d)). This implements recommendation 15 of the 2008 Review of the Legislative Instruments Act 2003.

 

The inclusion of an instrument prescribed by regulation preserves the rule in existing section 6(a).

New subsection 10(2) provides that the following Territory ordinances are declared to be legislative instruments:

  • An ordinance made under a power delegated by the Parliament in an Act providing for the government of a non-self-governing Territory (paragraph (2)(a))
  • Ordinances made under subsection 12(1) of the Seat of Government (Administration) Act 1910 that has not become an enactment (as defined in the Australian Capital Territory (Self-Government) Act 1988 (paragraph (2)(b))
  • an ordinance made under section 27 of the Norfolk Island Act 1979 (paragraph (2)(c)).

 

The last two categories are additional to what is captured as an ordinance in existing subsection 6(c). They are inserted to consolidate the existing provisions about Territory ordinances as they are already treated as legislative instruments under item 14 of existing subsection 7(1)(b).

The rule in existing subsection 6(b) (which declared certain rules to which the former Statutory Rules Publication Act applied to be legislative instruments) is omitted because all such rules that continue in force are now registered and so qualify as legislative instruments. 

Existing subsection 6(d) provides that instruments made under a power delegated by the Parliament before that Act commenced which were declared to be disallowable instruments for the purposes of section 46A of the Acts Interpretation Act or otherwise disallowable under Part XII of the Acts Interpretation Act were legislative instruments. Some instruments of this kind still exist so the content of this subsection is relocated to new section 57A, which deals with instruments disallowable under a power delegated before the commencement of the Legislative Instruments Act.

Existing subsection 7(3) deals with publication of non-legislative instruments authorised to be made before the commencement of that Act. This subsection is omitted because the Legislation Act does not deal with non-legislative instruments made under pre-commencing day enabling legislation. Instruments which are not legislative or notifiable instruments are dealt with in section 46 of the Acts Interpretation Act, as amended by Part 5 of Schedule 1 to the Bill.

New section 11 - Definition of notifiable instrument

New section 11 defines a new category of instrument, ‘ notifiable instrument ’. This section provides for an expanded range of instruments to be registered on the Register, implementing recommendations 11 and 12 of the 2008 Review of the Legislative Instruments Act 2003 . This allows for the registration of a broader range of instruments in authoritative from in a single, central repository. This new category of notifiable instruments is intended to include instruments which are not appropriate to register as legislative instruments, but for which public accessibility is desirable. This enables registration of instruments currently required to be published (in gazettes or otherwise) and other classes of instruments as prescribed in regulations or declared in enabling legislation. This is intended to reduce the number of different publication methods being used and enhance the status of the Register as the central repository.

Notifiable instruments are intended to be administrative rather than legislative in character. Notifiable instruments will not be subject to parliamentary scrutiny or sunsetting.

New subsection 11(1) provides that if a primary law gives power to do something by notifiable instrument, then the thing must be done by instrument and that instrument is a notifiable instrument. The provision includes two examples of how the primary law may be framed. Example 1 shows that a primary law may provide that ‘the Minister may, by notifiable instrument, approve a form for the purposes of this section’. Instruments made under that provision would be notifiable instruments. Example 2 shows that a primary law may provide for a person to appoint an inspector ‘by instrument’, and then state that an instrument made under that provision is a notifiable instrument.

New subsection 11(2) sets out the types of instruments that are notifiable instruments:

  • a commencement instrument for an Act, legislative instrument or notifiable instrument, or for a provision of an Act or instrument (paragraph (2)(a))
  • an instrument other than a legislative instrument prescribed by regulation, (paragraph (2)(b))
  • an instrument other than a legislative instrument that is registered as a notifiable instruments if the instrument is made under a power delegated by the Parliament or another power given by law (paragraph (2)(c))
  • an instrument other than a legislative instrument that includes a provision that amends or repeals another notifiable instrument (paragraph (2)(d)). This implements recommendation 15 of the 2008 Review of the Legislative Instruments Act 2003.

 

The note clarifies that an instrument that is registered as a notifiable instrument will be a notifiable instrument even if it would not otherwise be because of this section, unless it is a legislative instrument.

The inclusion of the phrase ‘other than a legislative instrument’ in subsection 11(2) clarifies that instruments described in subsection 11(2) are not notifiable instruments if they are legislative instruments. Where such an instrument meets the definition of legislative instrument in section 8, it will not be a notifiable instrument even if it is prescribed by regulation to be a notifiable instrument or is registered as a notifiable instrument.

New subsection 11(3) provides that enabling legislation for a notifiable instrument, or a regulation made under the Legislation Act, may modify the operation of the Legislation Act in relation to the notifiable instrument. For example, a regulation could provide that a provision of the Legislation Act regarding explanatory statements also applies to certain classes of notifiable instruments. This provision provides for flexibility in determining appropriate requirements that should apply to notifiable instruments.

New subsection 11(4) provides that where an Act or instrument requires that an instrument (other than a legislative instrument) be published or notified in the Gazette or in another way, this requirement is met by registering the instrument as a notifiable instrument. This applies unless there is a contrary intention in the Act or instrument which contains the publication or notification requirement. This subsection is intended to promote the accessibility of Commonwealth instruments through publication on the Register.

The Bill repeals existing section 10. Section 10 currently provides a power for the Attorney-General to certify whether an instrument is a legislative instrument or not. The section was enacted to provide certainty in relation to particular instruments, if needed. However, the Attorney-General’s decision would be judicially reviewable, which means that the certificate is unable to provide the certainty it purports to provide. The power to issue a certificate has never been used, and is repealed in implementing recommendation 6 of the 2008 Review of the Legislative Instruments Act .

The Bill also repeals existing section 11. It provides for a process of reconsideration and review of the Attorney-General’s decision to issue a certificate under section 10.

New section 12 - Commencement of legislative instruments and notifiable instruments

New section 12 replaces existing section 12, which deals with the commencement of legislative instruments.  It simplifies the provision, addresses existing problems and expands the provision to the new category of notifiable instrument.

New subsection 12(1) provides a broad rule to replace the detailed provisions of existing subsection 12(1), and is consistent with the commencement rule for Acts in section 3 of the Acts Interpretation Act. New subsection 12(1) provides that a legislative or notifiable instrument commences at the start of the day after it is registered, unless the instrument provides otherwise. New subsection 12(5) provides that a legislative instrument or notifiable instrument may authorise the making of a commencement instrument for that legislative instrument or notifiable instrument, or a provision.

New subsection 12(2) deals with the retrospective application of instruments. Existing section 12 provides that a legislative instrument or a provision of a legislative instrument has no effect if it takes effect before its registration and the rights of a person are affected so as to disadvantage the person, or liabilities are imposed in relation to things done or not done before the instrument is registered. The policy rationale for this rule is that unless there is a clear contrary intention in an Act, a legislative instrument should not have an effect that is both retrospective and to the detriment of an individual.

The application of existing subsection 12(2) could be unpredictable as it can be difficult to determine whether persons to whom an instrument applies will in fact be adversely affected. At times, a provision which aims to provide a positive impact may impact negatively upon a certain person or class of persons. Under existing subsection 12(2), if one person is negatively affected by a retrospective provision or instrument, the provision or instrument would be ineffective in application to any person, both prospectively and retrospectively.

To address this problem, new subsection 12(2) provides that a provision of a legislative or notifiable instrument will not apply to a person retrospectively to the extent that it would affect the person’s rights so as to disadvantage them or impose liabilities on them. This provision achieves the policy objective and removes the potential for unintended consequences. It renders a provision ineffective only to the extent that it has a retrospective adverse effect on a person, rather than rendering it ineffective in relation to all people and for all time. New subsection 12(2) implements recommendation 10 of the 2008 Review of the Legislative Instruments Act 2003 .

Subject to the limitation in subsection 12(2), new subsection 12(3) provides that a legislative instrument or notifiable instrument can provide that a provision commences prior to the instrument’s registration. New subsection 12(4) provides that the application of subsection 12(2) can be displaced by expressly providing for this in the enabling Act or another Act. This broadens the existing subsection 12(3) so that an Act other than the enabling Act can state that subsections 12(2) or 12(3) do not apply.

A saving provision is included in item 169 of Part 7 of this Schedule. This provides that where legislation enacted before the commencement of Schedule 1 of the Bill provides that subsection 12(2) of the Legislative Instruments Act does not apply to certain instruments, that legislation is to be read as though it provides that new subsection 12(2) of the Legislation Act does not apply. The transitional arrangement avoids uncertainty arising from the changed retrospective application under the Legislation Act to existing legislative instruments.

Item 13 - Subsection 13(1)

Item 13 broadens subsection 13(1) (construction of legislative instruments) to encompass the new category of instrument, notifiable instruments.

Item 14 - Paragraphs 13(1)(a), (b) and (c)

Item 14 amends paragraphs 13(1)(a), (b) and (c) to remove references to ‘legislative’ wherever it occurs. This broadens the subsection to encompass the new category of instrument, notifiable instruments.

 

Item 15 - Paragraph 13(1)(c)

Item 15 amends paragraph 13(1) to replace the reference to ‘rule-maker’ with a reference to ‘person to make an instrument’. This provides that the instrument is to be read and interpreted subject to the enabling legislation, and so as to not exceed the power of the person to make the instrument. This ensures that the provision correctly targets the person who actually made the instrument, and not the official rule-maker (which is either the Minister, the Governor-General or the Prime Minister under new section 6).

Item 16 - Subsection 13(2)

Item 16 replaces the phrase ‘any legislative instrument would, but for this subsection, be construed as being in excess of the rule-maker’s power’ in subsection 13(2) with ‘the making of a legislative instrument or notifiable instrument would, apart from this subsection, be construed as being in excess of the power to make the instrument’. Existing subsection 13(2) provides that if apart from this subsection, a legislative instrument would be construed as being in excess of the rule-maker’s power, it is taken to be valid to the extent that it is not in excess of the rule-maker’s power.

Subsection 13(2), as amended, ensures that the provision can refer to the power of the person who actually made the instrument, and not the official rule-maker (which is the Minister, the Governor-General or the Prime Minister). The subsection is expanded to encompass the new category of instrument, to enable a notifiable instrument to be taken to be valid to the extent that it is not in excess of the power to make the instrument. 

Items 17 and 18 - Subsection 13(3)

Item 17 amends subsection 13(3) to replace the reference to conferring on a ‘rule-maker the power to make a legislative instrument’ with a reference to conferring on a ‘person the power to make a legislative instrument or notifiable instrument’. Item 18 replaces the reference to ‘rule-maker may identify’ with ‘person may identify’.

These amendments ensure that the provision correctly targets the person who actually made the instrument, and not the official rule maker (which is the Minister, the Governor-General or the Prime Minister).

Subsection 13(3), as amended, provides that where an instrument requires identification (by way of specification, declaration or prescription) of a matter, or doing anything in relation to the matter, the person with the power to make the instrument may identify those matters or things by referring to a class or classes of matters.

Item 19 - After subsection 13(4) (before the note)

Item 19 inserts a new subsection 13(5), which provides that the amendment of a legislative instrument or notifiable instrument by an Act does not prevent the person authorised to make the instrument under the enabling legislation from amending or repealing it. This provision reflects an existing practice of amending instruments by Act. The new subsection makes clear that other amendments can still be made by regulation. Inserting this general principle into the Legislation Act means that this principle does not have to be stated in each Act which amends a legislative instrument or notifiable instrument. A corresponding provision for

 

 

instruments which are not legislative instruments or notifiable instruments is inserted into section 46 of the Acts Interpretation Act by item 110 of Schedule 1 to the Bill.

Item 20 - Section 13 (note)

Item 20 expands the note to section 13 to encompass the new category of instrument, notifiable instrument. The note states that section 13 has a parallel, in relation to instruments which are not legislative or notifiable, in subsection 33(3AB) and section 46 of the Acts Interpretation Act.

Item 21 - Subsection 14(1)

Item 21 amends subsection 14(1) to replace the phrase ‘in a legislative instrument, the legislative instrument’ with ‘by a legislative instrument or notifiable instrument, the instrument’. Existing section 14 deals with prescribing matters in legislative instruments by referring to and thereby incorporating the contents of other documents. This amendment encompasses the new category of instrument, notifiable instruments. This enables a notifiable instrument to incorporate documents by reference, with the same limitations that already apply to legislative instruments.

Item 22 - Paragraph 14(1)(a)

Item 22 repeals paragraph 14(1)(a) and inserts a new paragraph 14(1)(a). This amendment has the effect that, subject to the enabling legislation, an instrument may make provision in relation to a particular matter by applying, adopting or incorporating the provisions of an Act, of any legislative instrument covered by subsection 14(3) (disallowable legislative instruments), as in force at the time of incorporation or from time to time. These changes are made for clarity and do not change the legal effect of the paragraph.

Item 23 - Paragraph 14(1)(b)

Item 23 amends paragraph 14(1)(b) to replace the reference to ‘first-mentioned legislative instrument takes effect’ with a reference to ‘first-mentioned instrument commences’, so that the paragraph also applies to notifiable instruments. Paragraph 14(1)(b) provides that, subject to the enabling legislation, instruments may make provision in relation to a matter by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at the time when the instrument takes effect.

Item 24 - Subsection 14(2)

Item 24 amends subsection 14(2) to insert ‘or notifiable instrument’ after ‘legislative instrument’ to encompass the new category of instrument in the scope of this paragraph.  Subsection 14(2) provides that instruments may not adopt or incorporate other instruments or writings as in force from time to time unless there is a contrary intention in the enabling legislation.



 

Item 25 - After subsection 14(2) (before the note)

Item 25 inserts new subsection 14(3) which provides that the legislative instruments which may be incorporated or adopted under subparagraph 14(1)(a)(ii) are:

  • disallowable legislative instruments (paragraph (3)(a))
  • legislative instruments that were disallowable under the Acts Interpretation Act or another Act at any time before the Legislative Instruments Act commenced on 1 January 2005 (paragraph (3)(b)).

 

This clarifies that the instruments which may be incorporated or adopted under subparagraph 14(1)(a)(ii) include disallowable legislative instruments as defined in section 4 of the Legislation Act (instruments to which section 42 of the Legislation Act applies) as well as instruments which were disallowable under other Acts before commencement of the Legislative Instruments Act. This clarifies the scope of the existing paragraph 14(1)(a).

Item 25 also inserts new subsection 14(4) which provides that despite subsections 14(1)-(3), a legislative instrument or a notifiable instrument may authorise or require a form to be used for the purposes of an Act, for that instrument or for another instrument. This is a substantive change from the existing section 14 and provides an exception to the general rules in section 14. This exception only applies if the form is a notifiable instrument or is required to be publicly available in another specified way. Forms can become notifiable instruments by being registered as such. This means that forms are an exception to the general rule that instruments may only incorporate other documents as in force from time to time if those documents are disallowable legislative instruments. It is appropriate that forms be used in this way as they do not contain any substantive legal content; they are frameworks for the provision of information required for administrative processes.

 

 



 

PART 2 - REGISTRATION OF ACTS AND INSTRUMENTS

Legislative Instruments Act 2003

Item 26 - After Part 1

Item 26 inserts a new Chapter 2 titled ‘Registration of Acts, legislative instruments and notifiable instruments ’. It inserts headings for Part 1, ‘The Federal Register of Legislation’, and for Division 1, ‘Simplified outline of this Part’ .

New section 15 - Simplified outline of this Part

Section 15 provides a simplified outline to explain the key elements of Part 1 relating to the new Federal Register of Legislation, including that the Register contains Acts, legislative and notifiable instruments, explanatory statements, compilations and other relevant documents and information. Legislative instruments are not enforceable unless registered.

A new heading is inserted for Division 2, ‘Federal Register of Legislation’.

New section 15A - Federal Register of Legislation—establishment and maintenance

New section 15A establishes the Federal Register of Legislation. This section replaces existing section 20, which establishes the Federal Register of Legislative Instruments.

New subsection 15A(1) provides that the First Parliamentary Counsel must establish and maintain the Register. Note 1 explains that the contents of the Register can be accessed on the approved website. Note 2 explains that initially the Register will consist of the contents of the Federal Register of Legislative Instruments, the contents of the Acts database established under the Acts Publication Act, and other legislative material published on ComLaw.

New subsection 15A(2) sets out the scope of the documents that the Register is to contain. It provides that the Register must contain the following documents registered under Part 1:

  • Acts as made (paragraph (2)(a))
  • legislative and notifiable instruments as made (paragraph (2)(b))
  • compilations of Acts and legislative and notifiable instruments (paragraph (2)(c))
  • explanatory statements for legislative instruments (paragraph (2)(d)), and
  • other documents (paragraph (2)(e)).

 

New subsection 15A(3) allows additional documents to be registered if the First Parliamentary Counsel considers they are likely to be useful to users, and lists several examples of such documents. As the list is not intended to be an exhaustive list, it is stated to be ‘without limitation’. Examples of documents that may be registered include:

  • Acts that are not registered under Part 1 (paragraph (3)(a))
  • instruments that are not legislative instruments or notifiable instruments registered under Part 1 (paragraph (3)(b))
  • Gazette notices (paragraph (3)(c))
  • compilations of Acts or instrument other than compilations registered under Part 1 (paragraph (3)(d)), and
  • documents that may be used to interpret an Act or instrument, as provided by section 15AB of the Acts Interpretation Act (paragraph (3)(e)).

 

Under section 15AB of the Acts Interpretation Act, documents that may be used to interpret the meaning of a law (extrinsic materials) may include law reform commission reports, parliamentary committee reports, treaties, explanatory memoranda, parliamentary speeches and other documents.

New subsection 15A(4) enables the First Parliamentary Counsel to include any information in the Register that he or she considers likely to be useful to users. This power is included to enhance the status of the Register as a complete, useful and up-to-date repository of Commonwealth laws and supporting documents.

For the same reason, new subsection 15A(5) provides the First Parliamentary Counsel with a general power to do anything he or she considers necessary or desirable to ensure that the Register is accurate and up-to-date and contains useful material, subject to the Legislation Act and the rules. These powers are included to enhance the status of the Register as a complete, useful and up-to-date repository of Commonwealth laws and supporting documents.

New section 15B - Federal Register of Legislation—complete record of registered laws

New section 15B consolidates existing subsection 22(1) of the Legislative Instruments Act and subsection 5(1) of the Acts Publication Act to provide that the Register is taken to be a complete and accurate record of all registered Acts, legislative instruments and notifiable instruments. Additional provisions dealing with authorised versions of such documents are located in Part 3, as indicated in the note to this provision.

New section 15C - Federal Register of Legislation—access to registered material on approved website

New section 15C consolidates and expands on subsection 20(1A) of the Legislative Instruments Act and subsections 4(2)-(4) of the Acts Publication Act .

The existing provisions require steps to be taken to ensure that registered documents are available to the public. However, neither Act specifies how the public are to access documents, and the Legislative Instruments Act only requires legislative instruments to be available, not other important documents such as compilations.

New section 15C requires the First Parliamentary Counsel to ensure that all registered documents are available to the public on an approved website, and it specifies that the approved website is to be prescribed by the rules. The rules are declared to be legislative instruments in new section 61A (item 27).

New section 15D - Federal Register of Legislation—correction of errors

New section 15D consolidates and expands on section 23 of the Legislative Instruments Act and section 8 of the Acts Publication Act.

Under new subsection 15D(1), if satisfied that there is a mistake, omission or other error in the text of a registered law or compilation, the First Parliamentary Counsel must correct the error as soon as possible, and update the Register to show that a correction has been made and to provide an outline of the correction. This provision is important to enable corrections to be made if, for example:

  • an instrument contains a special symbol, mathematical formula or other formatting that is incompatible with the technology used to make documents available online, or

·          an error is found to have been made in the content of a compilation.

 

New subsection 15D(2) preserves existing provisions that specify that a correction to the text of documents does not affect any right or privilege that was acquired, or that accrued, because of reliance on the documents before they were corrected; and does not impose or increase any obligation or liability that was incurred before the correction. This provision is important to protect users who rely on registered documents that are later found to be in error.

New subsection 15D(3) is a new provision which recognises that errors may be found in other documents and information on the Register, and provides for corrections to be made subject to the rules. The rules are declared to be legislative instruments in new section 61A.

New subsection 15D(4) is a new provision which makes clear that a formal correction cannot be made if the error was made at law as part of enacting, making or amending a law. However, in the case of a technical error such as a misdescribed amendment, the First Parliamentary Counsel may be able to give effect to what was intended by means of an editorial change under new section 15W.

New section 15E  - Federal Register of Legislation—keeping the Register

New section 15E is a new provision which specifies that rules may provide for, or in relation to, the keeping of the Register and related matters. This section should be read in conjunction with new section 61A (item 27), which establishes the general power to make rules and declares them to be legislative instruments.

A new heading is inserted for Division 3, ‘Registration on Federal Register of Legislation’.

New section 15F - Registration of Acts

New section 15F provides that the First Parliamentary Counsel must register an Act as soon as practicable after the Act is assented to. This reflects the importance of ensuring that Acts are published on the Register and made available to users in a timely way. This is an expansion of the existing Acts Publication Act, which does not set any deadlines for the registration of new Acts.

New section 15G - Lodgement of legislative instruments and notifiable instruments, and other material     

New section 15G brings together a number of existing requirements relating to lodgement of documents that are, or are related to, legislative instruments and makes clear the requirements for lodgement of notifiable instruments.

New subsection 15G(1) corresponds to and replaces existing subsection 25(1). This provision makes clear that rule-makers must lodge a legislative instrument for registration as soon as practicable after the instrument is made.

New subsection 15G(2) establishes a similar requirement for notifiable instruments. Again, rule-makers must lodge notifiable instruments as soon as practicable after the instrument is made.

New subsection 15G(3) allows a rule-maker to lodge instruments that are not legislative instruments or notifiable instruments for registration as either legislative instruments or notifiable instruments. Even if there is no formal requirement to lodge an instrument, it may still be desirable and useful to lodge it as registration:

·          meets any statutory requirement for publication in the Gazette or in some other way (see section 56 and also new section 11(5))

·          establishes a permanent public record of the making and text of the instrument as made, and of any amendments to the instrument, and

·          enables authorised electronic and printed versions of an instrument to be made as needed, at no additional cost to the rule-maker (see new section 15ZA).

 

New subsection 15G(4) corresponds to existing subsection 26(1) but has been expanded to recognise that supplementary or replacement explanatory statements may need to be prepared and lodged. It requires an explanatory statement to be lodged for each legislative instrument that is lodged for registration. The deadlines for lodgement are as follows:

·          for the initial explanatory statement—as soon as practicable after the instrument is lodged for registration (paragraph 15G(4)(a)), and

·          for any supplementary or replacement explanatory statement—as soon as practicable after it is prepared (paragraph 15G(4)(b)).

 

A definition of, and the requirements for, each kind of explanatory statement are set out in new section 15J.

New subsection 15G(5) is a new provision that allows a rule-maker to lodge other documents for registration that relate to a legislative or notifiable instrument. Bearing in mind what is likely to be useful to users of the Register including courts and tribunals, a rule-maker may wish to lodge:

·          evidence that a particular process was followed before an instrument was made, if this is a requirement of its enabling legislation

·          evidence that a Minister has been notified of or endorsed a particular instrument, if this is a requirement of its enabling legislation

·          documents incorporated by reference, if there are no copyright or other issues that may preclude its publication (see also new subsection 15H(4)), or

·          guidance notes.

 

New section 15H - Registration of legislative instruments and notifiable instruments, and other documents

New section 15H consolidates and expands on subsection 27(1). The existing subsection requires the First Parliamentary Counsel to register each legislative instrument and compilation that is correctly lodged. The new section is more detailed and clear about the First Parliamentary Counsel’s responsibilities.

New subsection 15H(1) requires the First Parliamentary Counsel to register an instrument as a legislative instrument or a notifiable instrument based on the category chosen when it is lodged for registration. The rule-maker who makes and lodges an instrument is responsible for deciding what type of instrument it is.

New subsection 15H(2) requires the First Parliamentary Counsel to register other instruments or documents lodged for registration in accordance with section 15G and the rules. This provision enables the registration of explanatory statements, compilations and other material.

New subsection 15H(3) recognises that it may not be appropriate for the First Parliamentary Counsel to register every document that is lodged for registration. It allows:

·          the person who lodged a document (or another person acting on their behalf) to withdraw it if it has not been registered already (paragraph 15H(3)(b)), and

  • the First Parliamentary Counsel to decline to register documents other than those lodged as a legislative or notifiable instrument if certain conditions are met (paragraph 15H(3)(a)).

Finally, to ensure that the rejection of a document does not have unintended consequences, new subsection 15H(4) requires the First Parliamentary Counsel to give written notice to the person who lodged the document. It may not be useful or appropriate to register a document if, for example, it:

  • includes track changes, editing comments or ‘DRAFT’ markings that may indicate the document is not ready for publication
  • contains protective markings that indicate it is sensitive, security classified, under embargo or otherwise not appropriate for publication
  • does not include prescribed information, or
  • is found to contain a mistake, omission or other error that would require immediate correction if the document was registered.

New section 15J - Explanatory statements

New section 15J provides an expanded definition of explanatory statement in subsection 15J(1). Unlike the existing definition in section 4 of the Legislative Instruments Act, the new definition recognises that a mistake, omission or other error in an initial explanatory statement may necessitate the preparation and lodgement of a replacement or supplementary explanatory statement. The definition of an explanatory statement now picks up all three types of statement.

New section 15J also consolidates and expands on parts of existing section 26 as follows:

  • New subsection 15J(2) prescribes the content and other requirements for initial and replacement explanatory statements. These requirements do not differ materially from the existing requirements set out in subsection 26(1A), but have been extended to cover replacement explanatory statements.
  • New subsection 15J(3) has been added to deal with the requirements for supplementary explanatory statements. These requirements are less onerous than those for initial and replacement explanatory statements, because supplementary statements are not intended to be read as stand-alone documents.
  • New subsection 15J(4) corresponds to existing subsection 26(1D). It clarifies that a single explanatory statement may relate to one or more legislative instruments. This may be appropriate and useful if, for example, a number of legislative instruments are the subject of a single thematic review and are remade at the same time.

 

Other provisions of existing section 26 are not dealt with in new section 15J. Their status is as follows:

  • Existing subsection 26(1), which deals with the lodgement of explanatory statements, has been moved to new section 15G. This sets out all the requirements for lodgement of documents in a single place.
  • Existing subsections 26(1B) and 26(1C) are not preserved. These subsections allow the requirement to explain the purpose and operation of an instrument (paragraph 26(1A)(b)) to be met by an explanation that the instrument or provision replaces, and is the same in substance, as an earlier instrument or provision. These provisions are being repealed to avoid the perception that they constitute an exemption from the requirement to explain an instrument’s purpose and operation.
  • Existing subsection 26(2), which deals with failure to lodge an explanatory statement, has been relocated and is preserved in new subsection 15K(2).

New section 15K - Registration—enforceability of legislative instruments

New subsection 15K preserves existing subsections 31(1) and 26(2) .

Under existing subsection 31(1), a legislative instrument is not enforceable unless and until it is registered. This is an important provision, and reflects the general principle that rule-makers should not enforce compliance with laws that are not publicly available. However, legislation may provide for certain instruments to which the Legislation Act applies, to be exempted from that Act, including from this requirement.

Under new subsection 15K(1), a legislative instrument must be registered as a legislative instrument to be enforceable. A legislative instrument that is registered as a notifiable instrument, for example, will not be enforceable. As such, if there is doubt about whether an instrument is a legislative instrument:

  • it should be treated as a legislative instrument, and
  • consideration should be given to including an express declaration on this matter in the instrument’s enabling legislation.

 

New subsection 15K(2) makes clear that a failure by the rule-maker to lodge an explanatory statement in relation to a legislative instrument as required does not affect the validity or enforceability of the instrument. It corresponds to, and replaces, existing subsection 26(2).

As notifiable instruments will not be legislative in character, they are not required to be registered to be enforceable. This is consistent with recommendation 12(b) of the 2008 Review of the Legislative Instruments Act 2003.

New section 15L - Events affecting the currency or accuracy of the Register

New section 15L requires responsible persons for registered Acts or registered legislative or notifiable instruments to notify the First Parliamentary Counsel of certain events that affect the currency or accuracy of the Register. These events include:

  • events affecting the commencement of a law (paragraph (1)(a))
  • a discretionary compilation event (defined in new section 15Q) (paragraph (1)(b))
  • an event resulting in the Act or instrument or a provision being repealed, lapsing, expiring or otherwise ceasing to be in force (paragraph (1)(c))
  • an event resulting in the Act or instrument or a provision being invalid or unenforceable or being declared to be invalid or unenforceable by a court (paragraph (1)(d))
  • the responsible person becoming aware of an error in the Register in relation to which new subsection 15D(1) (correction of registration errors) may apply, or any other error in the Register (paragraph (1)(e)), or
  • another event prescribed in the rules (paragraph (1)(f)).

 

This is a new provision, and is important in promoting the accuracy and completeness of the Register. It is consistent with recommendations 9 and 13 of the 2008 Review of the Legislative Instruments Act 2003 , which recommended that rule-makers be obliged to notify the agency responsible for keeping the Register of events that result in the commencement, repeal, modification or invalidity of a registered instrument.

Recognising that certain events are routinely monitored by the First Parliamentary Counsel, new subsection 15L(2) provides a list of events that do not have to be notified to the First Parliamentary Counsel. These are:

  • the occurrence of a day or time specified in the Act or instrument, or the making of a commencement instrument resulting in the commencement of the Act or instrument or a provision(paragraph (2)(a))
  • a required compilation event (paragraph (2)(b))
  • the disallowance of a legislative instrument (or a provision), or the disallowance of another legislative instrument (or a provision) that amends the instrument (paragraph (2)(c))
  • the amendment or repeal of a legislative or notifiable instrument by the operation of Part 3 or Part 4 of Chapter 3 regarding repeal of spent instruments or provisions or the sunsetting of legislative instruments (paragraph (2)(d)), or
  • another event prescribed by the rules (paragraph (2)(e)).

 

New section 15M - Rules for lodgement and registration

New section 15M specifies that rules may provide for, or in relation to, the lodgement and registration of documents. It gives examples of the range of matters on which rules may be made, including on the identification, withdrawal and rejection of documents.

Only one of the examples mentioned in the new section is prescribed in any detail under an existing Act. Under existing subsections 31(2) and 31(3), a legislative instrument that cannot be registered because of technical difficulties must be published in full in the Gazette , and is then taken to have been registered at the time it was published in the Gazette .

Given the range of documents that may be lodged for registration on the expanded Register, it may not be necessary or appropriate to extend this provision to all new documents (particularly Acts, which have already been subject to a public process of making). Rules are, however, seen as useful and important to ensure that stakeholders are clear about what will happen should difficulties arise.

This section should be read in conjunction with new section 61A, which establishes the general power to make rules and declares them to be legislative instruments.

A new heading is inserted for Part 2 of Chapter 1 titled ‘Compilations’. A new heading is inserted for Division 1, ‘Simplified outline of this Part’.

New section 15N - Simplified outline of this Part

New section 15N provides a simplified outline to explain the key elements of Part 2 relating to Compilations. A compilation shows the text of an Act, legislative instrument or notifiable instrument as amended (if at all) and in force at a particular point in time.

New section 15P  - Registered compilations—information requirements

New section 15P preserves and strengthens a number of existing provisions of the Legislative Instruments Act relating to compilations. It builds on the definition of a compilation that has been updated in subsection 4(1). The updated definition is dealt with in item 12 of Schedule 1 to the Bill.

New subsection 15P(1) prescribes the minimum information that must be included in the compilation of an Act or instrument (a principal law ). It preserves the requirements of existing section 35, except for the requirement to state the compilation preparation date (which can be inferred from its date of registration). There are new requirements to include:

  • the compilation date, as specified in new sections 15R and 15S
  • details of any editorial changes that may be made under new section 15V, and
  • any further information prescribed by the rules.

New subsection 15P(2) allows prescribed information to be omitted from a compilation if the First Parliamentary Counsel is satisfied that the information is available on the approved website, provided that the compilation indicates how users of the Register may access that information. This provision anticipates that changes in technology may make it possible to streamline the preparation and presentation of compilations.

New section 15Q  - Definitions of required compilation event and discretionary compilation event etc.

New section 15Q prescribes the events that may trigger a compilation. This issue is dealt with in existing section 33, but that provision has a narrow focus on amendments and the disallowance of amending provisions of legislative instruments. Both events are picked up in new section 15Q, which also lists a range of other events that may make it necessary or useful for a compilation to be prepared for both Acts and instruments. These other events include:

  • the disallowance of provisions of an instrument, if applicable (new subparagraph 15Q(1)(b)(i))
  • the partial repeal of a provision of an Act or instrument (new subparagraph 15Q(1))(c))
  • the automatic repeal of solely amending, repealing or commencing provisions in an instrument under existing section 48C or 48D (new subparagraph 15Q(2)(b))
  • the modification of an Act or instrument (new subparagraph 15Q(2)(c)), and
  • the implied amendment of an Act or instrument (new subparagraph 15Q(2)(d)).

New paragraph 15Q(1)(c) is consistent with recommendation 16 of the 2008 Review of the Legislative Instruments Act 2003 , that a compilation should be required if a law is partially repealed.

Recognising that some of these events may not change the effect of an Act or instrument as in force, and that requiring a compilation in such circumstances could have significant resourcing implications, new section 15Q divides the list of events into two categories as follows:

  • required compilation events (new subsection 15Q(1)), and
  • discretionary compilation events (new subsection 15Q(2)).

In both cases, there is provision for additional events to be prescribed by the rules if necessary, for example, because of changes in law-making processes and practice that affect the text or application of an Act or instrument as in force.

Finally, new subsection 15Q(3) has been inserted to clarify when an Act or instrument is amended for the purposes of this Division. This provision is important to avoid doubt, such as can arise if an amendment has no formal commencement provision, or uses potentially ambiguous terms that may have other meanings such as ‘take effect’ or ‘apply from’.

New section 15R - Lodgement of compilations of instruments—required compilation events

New section 15R expands parts of existing section 34 to encompass notifiable instruments and strengthen obligations regarding compilations.

Existing section 34 only requires rule-makers to prepare and lodge compilations if the First Parliamentary Counsel issues a notice requiring this. As most compilations are triggered by the rule-maker amending an instrument, this arrangement is not efficient.

New subsection 15R(1) requires rule-makers to prepare and lodge compilations for registration if a required compilation events occurs for a legislative or notifiable instrument. Under new subsection 15R(2), the compilation date must be the date of the required compilation event.

New subsection 15R(3) establishes a clear deadline for the lodgement of such compilations. The rule-maker must lodge the compilation within 28 days after the required compilation event unless the First Parliamentary Counsel allows a longer period (and this may be appropriate if, for example, very complex amendments have been made).

This provision is consistent with recommendation 17 of the 2008 Review of the Legislative Instruments Act 2003, that compilations be required to be lodged as soon as practicable after the event that triggers the need for the compilation.

New subsection 15R(4) allows rules to be made, that waive the requirement to lodge a compilation under this section for prescribed instruments or circumstances prescribed in the rules. It may be that, as indicated in the example at the end of this subsection, compilations are to be prepared by the First Parliamentary Counsel rather than the rule-maker. This subsection should be read in conjunction with new section 61A (item 27), which establishes the general power to make rules and declares them to be legislative instruments.

New section 15S - Lodgement of compilations of instruments—discretionary compilation events

New subsection 15S(1) provides that if a discretionary compilation event occurs, the First Parliamentary Counsel may give a written notice to the rule-maker that requires them to prepare and lodge a compilation of the instrument. The notice specifies the time period in which this must occur. This is a discretionary power - whether a compilation is needed is a matter for the First Parliamentary Counsel to decide.

Under new subsection 15S(2), the compilation date must be the date of the discretionary compilation event. Under new subsection 15S(3), the rule-maker must lodge the compilation within the time specified in the notice, unless the First Parliamentary Counsel allows more time.

New section 15T - Registration of compilations

New section 15T clarifies the role of the First Parliamentary Counsel in preparing and registering compilations, and broadly aligns with existing practice under the Acts Publication Act and Legislative Instruments Act .

In the specific context of required compilation events , the First Parliamentary Counsel must register compilations as soon as practicable. The First Parliamentary Counsel must also prepare compilations for:

  • Acts (new subsection 15T(1))
  • instruments if the rule-maker is no longer responsible for compilations because of a registration rule made under new subsection 15R(4) (new subsection 15T(3)), and
  • potentially other instruments if the responsible rule-maker has missed the deadline for lodging a compilation prescribed by new subsection 15(4) (new subsection 15T(2)).

In the specific context of discretionary compilation events , the First Parliamentary Counsel’s role is somewhat different. Generally speaking, the First Parliamentary Counsel may prepare and register compilations of Acts and instruments (new subsection 15T(4)). However, if a rule-maker has been given notice to prepare and lodge a compilation under section 15S, subsection 15T(5) specifies that the First Parliamentary Counsel must register a compilation:

  • if lodged in accordance with the notice—as soon as practicable after it is lodged, and
  • otherwise, as soon as practicable after the deadline set in the notice (and this may, in some cases, mean the compilation is prepared by the First Parliamentary Counsel).

The First Parliamentary Counsel’s role in relation to compilations does not end there. New subsection 15T(6) makes clear that the First Parliamentary Counsel may prepare and register a compilation of an Act or instrument even if neither type of compilation event has occurred. This is important because it is difficult to specify all of the circumstances in which a compilation may be important or useful. It may be that:

  • the application of a Commonwealth Act or instrument has changed because another government has opted into or out of an intergovernmental body or scheme, or
  • editorial changes under new section 15V are highly desirable, for example, to update the text for changes in the names of key Acts or instruments, or
  • complex amendments to an Act or instrument have not yet commenced and a future law compilation is important to assist with implementation of those amendments, or
  • a compilation no longer represents the law in force at the compilation date because of retrospective amendments made to it.

New subsection 15T(7) also makes clear that if an Act or instrument ceases to be in force for any reason including disallowance, any compilation of the Act or instrument must be updated as soon as practicable to show that it is no longer in force.

A similar provision with a narrow focus on the disallowance process can be found in existing subsection 33(2). The new provision is broader as many different events can result in an Act or instrument ceasing to be in force. The new provision has been reworded to avoid describing historical compilations as ‘no longer required’, since historical compilations are often required for proceedings in a court or tribunal.

New section 15U - Compilations—rules

New subsection 15U is, for the most part, not based on any existing provision of the Acts Publication Act or Legislative Instruments Act. It specifies that rules can be made in relation to compilations, including on the preparation, withdrawal and rejection of compilations.

Paragraph 15U(1)(a) allows rules to be made on formatting and other presentational aspects of compilations. Consistency in the presentation of new laws is important to help users find information fast, but it is also important in compilations so that users can quickly establish what has changed (or will change) in the text and why.

New subsection 15U(2) allows rules to be made regarding the lodgement and registration of compilations when an amendment of an Act, legislative instrument or notifiable instrument commences retrospectively.

This section should be read in conjunction with new section 61A (item 27), which establishes the general power to make rules and declares them to be legislative instruments.

A new heading is inserted for Division 3 of Part 2 of Chapter 2, ‘Division 3—Editorial changes and other changes’.

Currently, the Commonwealth and the Northern Territory are the only Australian jurisdictions that do not have legislative editorial powers of some kind. Editorial powers have been used in other Australian jurisdictions in the publication of legislation for over four decades. Current legislation enabling this includes the following:

 

 

At least two non-Australian common law jurisdictions have established similar editorial powers, see:

New section 15V - Power to make editorial changes and other changes

New section 15V enables the First Parliamentary Counsel to make editorial and presentational changes to a compilation of an Act or an instrument. Making changes in this way, rather than through legislation, will conserve limited parliamentary time and other resources. It will also allow changes to be made as and when needed, or when resources permit.

New subsection 15V(1) permits the First Parliamentary Counsel to make editorial changes to any text that is part of the Act or instrument in preparing a compilation for registration. A definition of what constitutes an editorial change is provided at new section 15X. Editorial changes can only be made to a compilation - the original version ‘as made’ by the Parliament or rule-maker cannot be changed.

New subsection 15V(2) further limits the First Parliamentary Counsel’s power to make editorial powers. A change can only be made if the First Parliamentary Counsel considers it desirable to bring the Act or instrument that has been compiled into line with, or closer to, current legislative drafting practice, or to correct an error or a misdescribed amendment where the intended effect of the amendment is clear.

Following the same pattern as the preceding subsections, new subsection 15V(3) permits the First Parliamentary Counsel to make presentational changes to an Act or instrument in preparing a compilation for registration, while subsection 15V(4) specifies that a presentational change can only be made if the First Parliamentary Counsel considers it desirable to bring the Act or instrument that has been compiled into line with or closer to current legislative drafting practice.

New subsection 15V(5) permits the First Parliamentary Counsel to make other changes to the text of an Act or instrument in preparing a compilation for registration. In particular, the First Parliamentary Counsel may include, omit or change any text that is not part of the Act or instrument that has been compiled, including but not limited to a table of contents, reader guide, text that indicates the effect of images to users who are unable to access images (‘alt text’), and instrument-making words.

New subsection 15V(6) explicitly prohibits the First Parliamentary Counsel from making changes that would change the effect of an Act or instrument. The editorial power cannot be used to change the effect of the law, to resolve an ambiguity in the law or to rewrite legislation. There is a similar provision in all jurisdictions that have editorial powers.

To avoid doubt, subsection 15V(7) makes clear that this prohibition does not prevent the First Parliamentary Counsel incorporating an application, savings, transitional, validation or similar provision into a compilation of a principal law under new paragraph 15X(2)(m), or making other changes consequential on a such a change under new paragraph 15X(2)(q).

New section 15W - Editorial changes treated in the same way as amendments

New section 15W makes clear that an editorial change in a registered compilation is to be treated in the same way as an amendment. It has effect from the day the compilation is registered, as if the change had been made by an amendment that commenced on that date.

New section 15X  - Definition of editorial change

New section 15X describes the kinds of editorial changes that the First Parliamentary Counsel may make under section 15V before registering a compilation of an Act or instrument.

New subsection 15X(2) provides an extended list of the sorts of editorial changes that may be made by the First Parliamentary Counsel.

New subsection 15X(3) clarifies the circumstances in which the First Parliamentary Counsel may update references in an Act or instrument to other laws. The First Parliamentary Counsel can update references to:

  • any Commonwealth law including executive instruments not made under an Act of the Parliament, and
  • any Act or instrument made under an Act of a State, a Territory or New Zealand.

New subsection 15X(4) clarifies the circumstances in which the First Parliamentary Counsel may correct errors in an Act or instrument as made. The list does not include misdescribed amendments as this particular issue is already dealt with in subsection 15X(2)(o).

A new Part 3 of Chapter 2 is inserted with the heading ‘Authorised versions and judicial notice’, and a new Division 1 is also inserted with the heading ‘Introduction’.

New section 15Y - Simplified outline of this Part

New section 15Y provides a simplified outline to explain the key elements of Part 3 relating to authorised versions and judicial notice. The approved website provides authorised versions of Acts, instruments, compilations and explanatory statements of instruments, of which judicial notice may be taken.

New section 15Z - Scope of this Part

New section 15Z consolidates and expands on subsections 22(1) and (2) of the Legislative Instruments Act, and some aspects of section 5 of the Acts Publication Act. It makes clear that the following provisions apply to each registered law or explanatory statement, and to each provision or part of such documents.

New section 15ZA - Authorised versions

New section 15ZA consolidates and expands on a number of existing provisions relating to both electronic and print copies to provide for more comprehensive arrangements based on the approach in the Legislation Act 2001 (ACT).

It recognises that users of the Register may need to access and retain an authorised version of a registered law or explanatory statement in a variety of formats, and authorises:

  • electronic versions that a user has accessed or downloaded from the approved website (new subsection 15ZA(1))
  • electronic versions that are in the format prescribed by the rules (new subsection 15ZA(2)), and
  • printed copies, such as those that the Office of Parliamentary Counsel may print when an Act or regulation is first enacted or made (new subsection 15ZA(3)).

Under these provisions, an authorised version should be easy to identify. Although the details differ depending on the format, there are two basic tests:

  • is the copy in the format specified in or prescribed under the Act? and
  • does it indicate that it is an authorised version in a way prescribed by the rules?

New subsection 15ZA(4) also allows an authorised printed version to be produced directly from another authorised version. In other words, a photocopy of an authorised print version, or a print off of an authorised electronic version, is an authorised version if it faithfully reproduces the content of an authorised version.

In all four of the scenarios described above, it is not necessary for an entire document to be reproduced for an authorised version to exist. An authorised version may be made of a provision or part of a document: see new section 15Z.

New subsection 15ZA(5) consolidates and expands on existing section 6 of the Acts Publication Act and existing subsection 22(5) of the Legislative Instruments Act. The existing provisions essentially say that a document that purports to have been registered under these Acts is presumed to be what it says it is, unless the contrary is proved. The new provision applies this principle to:

  • a website that purports to be an approved website, and any registered law or explanatory statement downloaded from such a site (new paragraphs 15ZA(5)(a) and 15(5)(b))
  • any electronic or printed copy of a registered law or explanatory statement that indicates that it is an authorised version (new paragraphs 15ZA(5)(c)-(e)), and
  • the text of an authorised version of a registered law or explanatory statement (new paragraphs 15ZA(5)(f) through 15ZA(5)(h)).

Finally, new subsection 15ZA(6) specifies that a logo, a form of words, a unique identifier or some combination of these may be prescribed by rules as a way of indicating that a copy is an authorised version.

New section 15ZB - Judicial notice

New section 15ZB consolidates and expands existing section 22 of the Legislative Instruments Act, and section 5 of the Acts Publication Act.

New subsection 15ZB(1) lists a range of matters for which proof is not required. These matters include not only the text of a registered law or explanatory statement, but also events in the life cycle of laws including assent or making, registration, and commencement. The range of matters is wider than under current provisions, but consistent with the expanded content of the Register.

The following subsections deal with the possibility that a court or tribunal may want or need to look more closely at such matters. In particular:

  • new subsection 15ZB(2) permits a court or tribunal to inform itself of any matter mentioned in the previous subsection in any way it considers appropriate
  • new subsection 15ZB(3) emphasises the need for a court or tribunal to choose reliable sources of information about such matters
  • to avoid doubt, new subsection 15ZB(4) specifies that an authorised version of a registered law or explanatory statement is a reliable source of information, and
  • new subsection 15ZB(5) acknowledges that other laws may provide how a court or tribunal may be informed about the matters listed in new subsection (1).


 

 

PART 3 LEGISLATIVE INSTRUMENTS AND NOTIFIABLE INSTRUMENTS GENERALLY

Legislative Instruments Act 2003

Item 27 - Part 2 (heading)

Item 27 repeals the heading of Part 2 and substitutes the heading ‘Chapter 3—Legislative instruments and notifiable instruments ’. A heading is inserted for Part 1 of Chapter 3, ‘Part 1—Drafting standards and consultation ’.

Item 27 also inserts new section 15ZC to the Legislation Act.

New section 15ZC - Simplified outline of this Part

New section 15ZC sets out a simplified outline to assist users in understanding Chapter 2 of Part 1 of the Legislation Act. It explains that the First Parliamentary Counsel is responsible for promoting the legal effectiveness, clarity and intelligibility of legislative instruments and notifiable instruments. Before a legislative instrument is made, the rule-maker must be satisfied that any consultation that is appropriate and reasonably practicable has occurred.

Item 28 - Section 16 (heading)

Item 28 repeals the heading of section 16 and substitutes the heading: ‘Measures to achieve high drafting standards for legislative instruments and notifiable instruments ’. The new heading includes reference to the new category of instrument, notifiable instrument, consistent with the amendments below.

Item 29 - Subsection 16(1)

Item 29 extends the scope of subsection 16(1) to encompass the new category of notifiable instruments. It adds ‘and notifiable instruments’ after the word ‘legislative instruments’ wherever it occurs.

Item 30 - Paragraphs 16(2)(a), (b) and (c)

Item 30 extends the scope of subsection 16(2) to encompass the new category of notifiable instruments by adding ‘and notifiable instruments’ after the word ‘legislative instruments’.

Item 31 - Paragraphs 16(3)(a) and (b)

Item 31 repeals paragraphs 16(3)(a) and (b) and substitutes new paragraphs that refer to notifiable instruments and incorporate within the text of the paragraph 16(3)(a) the content of the definition of ‘inappropriate use of gender specific language’. This term is defined in the existing Legislative Instruments Act. As this term is not used anywhere else in the Legislation Act, the meaning of the term is incorporated into this section.

Item 32 - Part 3 (heading)

Item 32 repeals the heading of Part 3 as it is redundant.

 

Item 33 - Subsection 17(1)

Item 33 repeals subsection 17(1) and substitutes a new subsection.

Existing subsection 17(1) requires the rule-maker to be satisfied that any appropriate and reasonably practicable consultation has been undertaken, “particularly where the proposed instrument is likely to have a direct, or substantial indirect, effect on business, or restrict competition”.

The reference to instruments affecting business or competition is repealed by this item, consistent with recommendation 32 of the 2008 Review of the Legislative Instruments Act 2003 , to avoid the perception that consultation is only required for those instruments.

New subsection 17(1) requires that before any legislative instrument is made, the rule-maker must be satisfied that any appropriate and reasonably practicable consultation is undertaken. In limited circumstances, no consultation may be appropriate for making a particular instrument.

Item 34 - Section 17 (note)

Item 34 updates the note to section 17 to refer to the correct provision of the Legislation Act, following the amendments made by item 26. The note explains that the consultation on a legislative instrument must be described in the explanatory statement.

Item 35 - Section 18

Item 35 repeals section 18 which lists examples of situations in which consultation may be unnecessary or inappropriate. This section is being repealed in response to evidence that the examples have been misconstrued as exemptions from consultation.

The repeal of this provision is consistent with recommendation 31 of the 2008 Review of the Legislative Instruments Act 2003 . It does not alter the obligation of rule-makers to consider what may be appropriate and practicable on a case-by-case basis .

Item 36 - Part 4

Item 34 repeals Part 4, which deals with the Federal Register of Legislative Instruments. The provisions in Part 4 are no longer required as they are replaced with new provisions that deal with the new Register (in Part 1 of Chapter 2).

Item 37 - Part 5 (heading)

Item 37 repeals the heading for Part 5 and substitutes a new heading for Chapter 3, Part 2 of the Legislation Act: ‘Part 2—Parliamentary scrutiny of legislative instruments ’. The title of this heading preserves the text of the existing heading, but is a heading to the new Part 2, which is consequential to other amendments in the Bill.

Item 38 - Before section 37

Item 38 inserts a new section 36 into the Legislation Act.

 

New section 36 - Simplified outline of this Part

New section 36 sets out a simplified outline to assist users in understanding Chapter 3, Part 2 of the Legislation Act. It explains that the Office of Parliamentary Counsel is generally required to deliver legislative instruments to the Parliament. They must be laid before each House of Parliament within six parliamentary sitting days of being registered. This allows the Parliament to consider the instruments. Part 2 sets out procedures for either House to disallow a legislative instrument. It also deals with instruments that are required to be tabled in the Parliament but are not disallowable.

Item 39 - Section 37 (note)

Item 39 repeals the note to section 37 and substitutes a new note. Section 37 deals with the purpose of the Part, which is to facilitate scrutiny by the Parliament of legislative instruments and set out the circumstances in which they may be disallowed and procedures for disallowance. The new note mentions that some instruments are not disallowable, as provided by section 44.

Item 40 - Subsection 38(1)

Item 40 amends subsection 38(1) to remove an outdated reference to ‘legislative instrument registered under Division 2 of Part 4’ and to replace it with a general reference to ‘registered legislative instrument’.

Item 41 - Subsection 38(2)

Item 41 repeals subsection 38(2), which deals with tabling requirements that existed prior to the commencement of the Legislative Instruments Act. This matter is now dealt with in section 57, as amended by the Bill (see items 77-80).

Item 42 - Subsection 38(3)

Item 42 amends subsection 38(3) to replace ‘legislative instrument that is required to be laid before each House of the Parliament is not so laid’, with ‘legislative instrument is not laid before each House of Parliament’. This amendment modernises the language of the provision.

Item 43 - At the end of subsection 38(3)

Item 43 adds a note to section 38 directing the reader to see subsection 45(1). Subsection 38(3) states that if a legislative instrument is not laid before each House of Parliament as required, it ceases to have effect after the last day for it to be laid before the Parliament. The new note directs the reader to subsection 45(1), which deals with the effect of a legislative instrument ceasing to have effect.

Item 44 - Section 39

Item 44 repeals section 39 and substitutes a new section 39.

New section 39 - Tabling of explanatory statements

The Bill repeals existing section 39 and replaces it with a new provision. Existing subsection 39(1), which deals with who lodges explanatory statements and when, has been split into two provisions and expanded. Existing subsection 39(2) is essentially retained and is now located at new subsection 39(3).

New subsection 39(1) clarifies that if an explanatory statement is registered, the Office of Parliamentary Counsel is responsible for arranging to deliver a copy of it to each House of the Parliament for tabling. This provision is framed so that it applies to any explanatory statement that may be issued, not just the initial explanatory statement: see section 15J.

New subsection 39(2) deals with the timeframes for delivery of explanatory statements. It continues to require initial explanatory statements to be delivered with the relevant legislative instrument if practicable. If this is not practicable, or if a supplementary or replacement statement is issued, there is now a deadline for delivery of statements that is six sitting days from date of registration.

New subsection 39(3) deals with the scenario where a rule-maker fails to lodge an explanatory statement before a legislative instrument is delivered for tabling to a House of the Parliament. If this happens, the rule-maker must act as soon as possible, to deliver to that House a written statement explaining the lateness of the lodgement.

To ensure that discrepancies do not arise between the information tabled in the Parliament and the information available to the public on the Register, the rule-maker is no longer required to deliver a copy of the explanatory statement directly to the House for tabling. However, the rule-maker must still lodge the statement for registration and tabling in the usual way (see new section 15G).

New subsection 39(4) deals with the scenario where a replacement explanatory statement is registered before the initial explanatory statement is delivered to the Parliament. It clarifies that, in this scenario, only the replacement statement needs to be delivered and laid before each House.

Section 39 does not apply to notifiable instruments consistent with recommendation 12(c) of the 2008 Review of the Legislative Instruments Act 2003 .

Item 45 - At the end of subsections 42(1) and (2)

Item 45 adds a new note after subsections 42(1) and (2). These subsections provide the procedures for the disallowance of legislative instruments and that legislative instruments cease to have effect in certain circumstances. The new notes direct the reader to subsection 45(1) which deals with the effect of a legislative instrument ceasing to have effect. Section 42 does not apply to notifiable instruments, consistent with recommendation 12(c) of the 2008 Review of the Legislative Instruments Act 2003 .

Item 46 - Subsection 44(1)

Item 46 amends subsection 44(1), which deals with certain instrument classes that are not disallowable, to remove a reference to legislative instruments made on or after the commencement of the Legislative Instruments Act. This reference is no longer required as disallowance requirements that were in force prior to commencement are now dealt with in section 57 (as amended).

 

Item 47 - Subsections 44(2) and (3)

Item 47 repeals subsections 44(2) and (3) and substitutes new subsections that modify and expand on the existing subsections.

New paragraph 44(2)(a) provides that an Act may declare or have the effect of exempting a legislative instrument or a provision of a legislative instrument from disallowance under section 42. A number of enabling Acts already provide for exemptions from disallowance. The new provision recognises this, and also allows for exemptions to be made in an Act that is not the enabling Act.

New paragraph 44(2)(b) provides that regulations may be made that exempt a legislative instrument from disallowance. This paragraph preserves the effect of existing subsection 44(2) (item 44 of the table). The table of exemptions in existing section 44 will be transferred to the new Regulations and consolidated with other exemptions from disallowance already prescribed by regulation, making it easier for users to find exemptions.

New subsection 44(3) provides that prescribing a kind of instrument as exempt from disallowance does not indicate that every instrument of that kind is a legislative instrument. This preserves the effect of existing subsection 44(3).

Item 48 - Subsection 45(3)

Item 48 updates subsection 45(3) to replace the out-of-date reference to ‘Part 6’ with ‘Part 4 (sunsetting of legislative instruments)’.

Item 49 - Section 48

New section 48 - Remaking disallowed legislative instruments

Existing section 48 is an important provision that deals with the remaking of a legislative instrument that has been disallowed. It has been repealed and replaced to make its meaning clearer.

Both the existing and new provisions prohibit remaking a legislative instrument or provision of such an instrument that is the same in substance as one that that has been disallowed in the preceding 6 months (subsection 48(1)).

The existing provision also recognises that it may be necessary for a disallowed instrument or provision to be remade during the six month period, and permits remaking subject to a resolution of the House of the Parliament in which the instrument or provision was disallowed. However, the process is framed in different and potentially confusing terms:

·          if the disallowance motion was actively voted on by the House under existing subsection 42(1), the disallowance motion must be rescinded by that House, and

·          if the disallowance motion was passed by default under existing subsection 42(2), the House must approve remaking.

In the new provision, this issue is dealt with in a separate subsection (new subsection 48(2)) and the same process applies to all disallowed instruments or provisions: the relevant House must pass a resolution approving the remaking.

Both the existing and new provisions conclude by specifying that ‘a legislative instrument or provision made in contravention of this section has no effect’. The provisions are the same in substance and language, although in the new provision this text is located in new subsection 48(4)).

Item 50 - Part 5A (heading)                           

Item 50 repeals the heading of Part 5A and replaces it with a new heading for Part 3 of Chapter 3: ‘Part 3—Repeal of spent legislative instruments, notifiable instruments and provisions ’ and a new division heading ‘ Division 1A—Simplified outline of this Part ’.

Item 51 - Before Division 1 of Part 5A

Item 51 inserts a new section 48AA.

New section 48AA - Simplified outline of this Part

New section 48AA sets out a simplified outline to assist users in understanding Part 3 of Chapter 3 of the Legislation Act. It explains that instruments or provisions that only amend or repeal another instrument are automatically repealed after they have done their work. Additionally, there is power to make a regulation under the Legislation Act to repeal instruments or provisions if the Attorney-General is satisfied that they are no longer required.

Item 52 - Subsection 48A(1)

Item 52 repeals subsection 48A(1) and inserts new subsections 48A(1) and (1A).

New subsection 48A(1) expands the existing subsection 48A(1) to encompass the new category of notifiable instruments. Existing section 48A(1) automatically repeals a new legislative instrument that has the sole effect of amending and repealing one or more other instruments, as soon as it has been registered and has commenced in full.

New subsection 48A(1A) clarifies that an amendment that inserts an application, saving or transitional provision into another instrument does not prevent the automatic repeal of an instrument or provision for the purposes of subsection (1). An instrument or provision that makes such an amendment is still subject to automatic repeal.

Item 53 - Subsection 48A(2)

Item 53 repeals and inserts a new subsection 48A(2).

Existing subsection 48A(2) provides for the automatic repeal of a solely amending or repealing instrument on the day after the registration of the instrument, or the day after commencement of the last of its provisions (whichever is the last to occur).

New subsection 48A(2) maintains this approach, but also considers the scenario where a solely amending or repealing instrument contains a provision that cannot commence. Such an instrument will now be subject to automatic repeal, and the date of repeal is determined having regard to the event/s that prevented commencement.

For example, it may be that a solely amending or repealing instrument has a provision that commences when a certain Act is enacted. If the associated Bill is defeated, is withdrawn or lapses, the provision cannot commence and the instrument is not currently subject to automatic repeal. It will, however, be subject to automatic repeal under new subsection 48A(2) and its date of repeal will need to be determined with regard to the date on which the Bill fell.

New section 48A(2) also covers the scenario where a solely amending or repealing instrument contains a provision that cannot commence, because the provisions that it amends or repeals have already been repealed by an Act or another instrument before they have commenced.

 

New subsection 48A(2) provides that the amending or repealing instrument is repealed on whichever is later of either the day after it is registered or the day after the latest of a set of other events. The set of other events includes:

·          the commencement of the instrument, or of the last of its provisions to commence (subparagraph (2)(a)(i))

·          if the last of the provisions of the primary Act or instrument that have not commenced are repealed by another Act or instrument, or cannot commence because of the occurrence of an event, that repeal or the occurrence of that event (subparagraph (2)(a)(ii)).

 

Item 54 - At the end of subsection 48A(4)

Item 54 inserts a new note directing the reader to also see subsection 45(2), which deals with the effect of a legislative instrument ceasing to have effect.

Item 55 - Subsections 48B(1) and (2)

Item 55 repeals and inserts new subsections 48B(1) and (2).

Existing section 48B(1) automatically repeals a new legislative instrument that has the sole effect of commencing some or all of another legislative instrument or Act, while existing subsection 48B(2) provides for the repeal to occur on the day after registration of the instrument, or the day after commencement of the last of its provisions (whichever is the last to occur).

New subsection 48B(1) expands existing subsection 48B(1) to encompass the new category of notifiable instruments. It repeals any commencement instrument (a term defined in new section 4) that provides for the commencement of a primary law (that is, Acts, legislative instruments and notifiable instruments) or the commencement of a primary provision of such a law.

New subsection 48B(2) expands existing subsection 48B(2) to consider the scenario where a commencement instrument contains a provision that cannot commence. Such an instrument will now be subject to automatic repeal, and the date of repeal is determined having regard to the event/s that prevented commencement. For example, it may be that a commencement instrument provides that an instrument commences when a certain Act is enacted. If the associated Bill is defeated, is withdrawn or lapses, the provision cannot commence and the instrument is not currently subject to automatic repeal. It will, however, be subject to automatic repeal under new subsection 48B(2) and its date of repeal will be determined with regard to the date on which the Bill fell.

New section 48B(2) also covers the scenario where, for example, a commencement instrument is made that establishes that certain provisions will commence on a date well into the future and the provisions are subsequently repealed by an Act or another instrument before they have commenced.

To address these scenarios, new subsection 48B(2) provides that the commencement instrument is repealed on whichever is later of either the day after it is registered or the day after the latest of a set of other events. The set of other events includes:

·          the commencement (or the last commencement) provided for in the commencement instrument (subparagraph (2)(a)(i))

·          if the commencement instrument provides for the commencement of a whole Act or instrument, the last of the provisions of the primary Act or instrument that have not commenced are repealed by another Act or instrument (subparagraph (2)(a)(ii))

·          if the commencement instrument provides for the commencement of a whole Act or instrument, the occurrence of an event which means that the commencement of the primary Act or instrument cannot occur as provided for in the commencement instrument (subparagraph (2)(a)(iii))

·          if the commencement instrument provides for the commencement of a provision (or provisions) of the primary Act or instrument, the repeal of that provision or provisions by another Act or instrument or the occurrence of an event which means the commencement cannot occur (subparagraph (2)(a)(iv).

 

Item 56 - Subdivision C of Division 1 of Part 5A (heading)

Item 56 repeals the heading for Subdivision C of Division 1 of Part 5A and substitutes a new heading for Subdivision C of Part 3 of Chapter 3 of the Legislation Act: ‘Subdivision C —Repeal of amending or repealing provisions of instruments containing other matter ’. This removes the specific reference to ‘legislative’ instruments so that this provision will encompass the new category of instrument, notifiable instruments’.

Item 57 - Subsection 48C(1)

Item 57 amends subsection 48C(1) to insert a reference to ‘or notifiable instrument’ after ‘legislative instrument’. This means that section 48C, which deals with the automatic repeal of amending and repealing provisions, will be expanded to enable the repeal of provisions of notifiable instruments.

Item 58 - Paragraph 48C(1)(a)

Item 58 removes a reference to instruments made on or after the commencement of section 48C. The process for automatic repeal of spent amending and repealing provisions is working well, so it seems appropriate to extend it to instruments made before 23 September 2012, when this section was inserted into the Legislative Instruments Act.

Item 59 - Paragraph 48C(1)(b)(i)

Item 59 amends subparagraph 48C(1)(b)(i) to replace the reference to ‘legislative instruments’ with ‘legislative instruments or notifiable instruments’. When read with the amendment in item 57, this represents an expansion so that section 48C will repeal a provision of a legislative or notifiable instrument if its only legal effect is to amend or repeal one or more other legislative or notifiable instruments.

Item 60 - Subsection 48C(2)

Item 60 repeals and inserts a new subsection 48C(2).  

Existing subsection 48C(2) provides that the automatic repeal of provisions that have the sole effect of amending or repealing another instrument occurs either on the day after registration of the instrument containing the provision, or the day after commencement of the provision (whichever is the last to occur).

New subsection 48C(2) maintains this approach, but also contemplates the scenario where a solely amending or repealing provision cannot commence. Such a provision will now be subject to automatic repeal, and the date of repeal will be determined having regard to the event/s that prevented commencement. For example, an amending or repealing provision may be specified as commencing when a particular Act is enacted. If the associated Bill is defeated, is withdrawn or lapses, the provision cannot commence and the instrument is not currently subject to automatic repeal. It will, however, be subject to automatic repeal under new subsection 48C(2) and its date of repeal will be determined with regard to the date on which the Bill fell.

New subsection 48C(2) provides that the repeal of the amending or repealing provision happens immediately after the latest of either the registration of the legislative or notifiable instrument containing the provision or the latest of a set of events. These events are:

·          the commencement of the provision (subparagraph (2)(a)(i)), or

·          if the provision cannot commence because of a particular event, the occurrence of that event (subparagraph (2)(a)(ii)).

 

Item 61 - At the end of section 48C

Item 61 inserts a new subsection 48C(5) to deal with the repeal of ‘associated provisions’. This subsection provides that when an amending or repealing provision of a legislative instrument or notifiable instrument is repealed under subsection 48C(1), associated provisions are also repealed. These include schedules of the instrument that only identify another instrument or provision that is amended or repealed, and any other provision, such as a heading, of the instrument that only identifies or groups provisions that are amended or repealed.

Item 61 also inserts a new note to direct the reader to subsection 45(2), which deals with the disallowance of an amending or repealing provision to which section 48C applies.

Item 62 - Subdivision D of Division 1 of Part 5A (heading)

Item 62 repeals the heading for Subdivision D of Division 1 of Part 5A and replaces it with a new heading for subdivision D of Part 3 of Chapter 3: ‘Subdivision D—Repeal of commencement provisions of instruments containing other matter ’.

Item 63 - Subsection 48D(1)

Item 63 repeals and replaces subsection 48D(1), which provides for the automatic repeal of commencement provisions. (Commencement instruments that have the sole effect of commencing another law or provision of a law are dealt with in section 48B.)

The new subsection is expanded to apply to notifiable instruments as well as legislative instruments and, as with subsection 48C(1), the reference to instruments made ‘after the commencement of this section’ in existing subsection 48D(1) has been removed. As the process for automatic repeal of commencement provisions is working well, it seems appropriate to extend the automatic repeal of spent provisions to older instruments.

Item 64 - Subsection 48D(2)

Item 64 repeals and replaces subsection 48D(2), which provides for the automatic repeal of any provision that has the sole effect of commencing the instrument in which it appears, another legislative instrument or Act. Existing subsection 48D(2) provides that such a provision is repealed either on the day after registration of the instrument containing the provision, or the day after the commencement (or last commencement) the provision provides for (whichever is the last to occur).

New subsection 48D(2) expands existing subsection 48D(2) to encompass the new category of notifiable instruments and (as with new subsections 48A(2), 48B(2) and 48C(2)) to provide for the automatic repeal of provisions that cannot commence. New subsection 48D(2) covers the scenario in which the commencement of the relevant Act or instrument (or provision) specified in the commencement provision cannot occur because an event has occurred that has made this impossible. For example, a commencement provision may provide that the relevant Act or instrument commences when a particular Act is enacted. If the associated Bill is defeated, is withdrawn or lapses, the commencement cannot occur and the instrument is not currently subject to automatic repeal. It will, however, be subject to automatic repeal under new subsection 48D(2) and its date of repeal will be determined with regard to the date on which the Bill fell.

New section 48D(2) also expands on the existing subsection by addressing the scenario in which provisions of an Act or instrument are repealed by another Act or instrument before they have commenced.

To address these scenarios, new subsection 48D(2) provides that repeal occurs immediately after the latest of the registration of the instrument containing the commencing provision or the latest of a set of other specified events. These events are:

·          the commencement, or the last commencement, that the commencement provision provides for (subparagraph (2)(a)(i))

·          if the commencement provision applies to a whole Act or instrument and the last of the provisions of that Act or instrument that have not commenced are repealed by another instrument, that repeal (subparagraph (2)(a)(ii))

·          if the commencement provision applies to a whole Act or instrument and that Act or instrument or the last provision of that Act or instrument which is yet to commence cannot commence because of an event, the occurrence of that event (subparagraph (2)(a)(iii)), or

·          if the commencement provision applies to a provision of an Act or instrument, and that provision is repealed or cannot commence because of an event, that repeal or the occurrence of that event (subparagraph (2)(a)(iv)).

 

 

 

Item 65 - Section 48E (heading)

Item 65 repeals the heading to section 48E and substitutes a new heading: ‘48E Regulations may repeal instruments or provisions no longer required ’. This removes the specific references to ‘legislative’ instruments so that this provision will encompass the new category of instrument, notifiable instruments’.

Item 66 - Subsections 48E(1) and (2)

Item 66 amends subsections 48E(1) and (2) to insert ‘or notifiable instrument’ after ‘legislative instrument’ wherever this reference occurs. This reflects the amendments below that enable regulations to repeal both legislation instruments and the new notifiable instruments.

Item 67 - Part 6 (heading)

Item 67 repeals the heading of Part 6 and substitutes a new heading for Chapter 3, Part 4 of the Legislation Act: ‘Part 4—Sunsetting of legislative instruments ’. This amendment only changes the reference to a Part.

Item 68 - Before section 49

Item 68 inserts a new section 48F to the Legislation Act.

New section 48F - Simplified outline of this Part

New section 48F sets out a simplified outline to assist users in understanding Chapter 3, Part 4 of the Legislation Act. The outline explains that under Part 4 legislative instruments are automatically repealed (sunsetted) after a specified period of time. Part 4 provides for this process.

Item 69 - Subsection 50(3)

Items 69 is a consequential amendment to update subsection 50(3) to refer to the relevant Part of the Legislation Act (as amended by the Bill).

Item 70 - Subsection 50(3) (note)

Item 70 is a consequential amendment to update the note to subsection 50(3) to refer to the relevant Part of the Legislation Act (as amended by the Bill).

Item 71 - Subsection 51(3)

Item 71 omits a reference to a requirement that a legislative instrument made under section 51 be registered. This reference is redundant because the provisions of the Legislation Act make clear that all legislative instruments are required to be registered.

Item 72 - Subsection 51A(3)

Item 72 is a consequential amendment to update subsection 51A(3) to refer to the relevant Part of the Legislation Act.

 

Item 73 - Subsection 54(1)

Item 73 removes a reference to the day on which the Legislative Instruments Act commenced. It is not necessary to refer to instruments ‘made before, on or after the commencing day’ as this picks up all possible dates of making. The removal of this superfluous text does not alter the effect of this subsection.

Item 74 - Subsections 54(2) and (3)

Item 74 repeals subsections 54(2) and (3) and substitutes new subsections that modify and expand on the existing subsections. Section 54 deals with instruments to which the sunsetting regime (in Part 4 of Chapter 3) does not apply.

New paragraph 54(2)(a) provides that an Act may declare or have the effect of exempting a legislative instrument or a provision of a legislative instrument from disallowance under section 42. A number of enabling Acts already provide for exemptions from disallowance. The new provision recognises this, and also allows for exemptions to be made in an Act that is not the enabling Act.

New paragraph 54(2)(b) provides that regulations may be made that exempt a legislative instrument from disallowance. This paragraph preserves the effect of existing subsection 54(2) (item 51 of the table). The table of exemptions in existing section 54 will be transferred to the new Regulation and consolidated with other exemptions from disallowance already prescribed by regulation, making it easier for users to find exemptions.

New subsection 54(2)(c) provides that the sunsetting regime does not apply to a legislative instrument if it is a regulation made for the purposes of specific provisions of the Legislation Act. This provides certainty about the application of the Act, and in particular about which instruments:

·          are not legislative instruments (subparagraph 54(2)(c)(i))

·          are legislative instruments (subparagraph 54(2)(c)(ii))

·          are notifiable instruments (subparagraph 54(2)(c)(iii))

·          are not disallowable (subparagraph 54(2)(c)(iv)), and

·          are not subject to sunsetting (subparagraph 54(2)(c)(v)).

New subsection 54(3) provides that prescribing a kind of instrument as exempt from disallowance does not indicate that every instrument of that kind is a legislative instrument. This preserves the effect of existing subsection 54(3).

The sunsetting requirements do not apply to notifiable instruments, consistent with recommendation 12(c) of the 2008 Review of the Legislative Instruments Act 2003 .

Item 75 - Part 7 (heading)

Item 75 repeals the heading for Part 7 and replaces it with a new heading for Chapter 4 of the Legislation Act: ‘Chapter 4—Miscellaneous ’. This amendment only changes the reference to Part 7 (to now refer to Chapter 4).

Item 76 - Sections 55 and 56

Item 76 repeals sections 55 and 56 and replaces them with new sections.

Existing section 55 deals with legislative provisions that set out steps (including gazettal and disallowance regimes) that must be followed in relation to certain legislative instruments that were made but not dealt with before the Legislative Instruments Act commenced. As all such matters have now been resolved, this provision is no longer required.

New section 55 - Simplified outline of this Chapter

New section 55 sets out a simplified outline to assist users in understanding Chapter 4 of the Legislation Act. The outline explains that the Chapter deals with miscellaneous matters such as publication requirements other than registration, parliamentary scrutiny requirements for instruments other than legislative instruments or notifiable instruments that may apply instead of, or in addition to the Legislation Act, various powers of the First Parliamentary Counsel, and the power to make regulations under the Act.

New section 56 - Legislative instruments—gazettal and other publication and notification requirements

New section 56 modifies existing section 56, which effectively provides for registration to meet any requirement to publish or gazette a legislative instrument that may be imposed by its enabling legislation, but only if the gazettal requirement predates the commencement of the Legislative Instruments Act on 1 January 2005.

Under new subsection 56(1), registration now meets any statutory requirement for a legislative instrument to be published or notified in a gazette. The location and age of the gazettal requirement is no longer an issue. This change is desirable to minimise ‘double handling’ in the publication of certain types of legislative instruments. 

New subsection 56(2) is new, and deals with statutory requirements for legislative instruments to be published or notified in other ways (for example, in a newspaper). It provides that if such a requirement was imposed on or after 1 January 2005, it does not displace, and is in addition to, the requirement for the legislative instrument to be registered. This change is important to ensure clarity on this.  If additional publication requirements were imposed in laws made after the Federal Register of Legislative Instruments was created, there must have been an intention that further requirements beyond registration should apply.

Item 77 - Subsections 57(1) and (2)

Item 77 repeals and replaces subsections 57(1) and (2).

New subsection 57(1) clarifies and modernises existing subsection 57(1), which ensures that legislative instruments do not have to be tabled multiple times. The tabling requirements of section 38 displace any other statutory requirements for tabling that may have existed before 1 January 2005, when the Act commenced.

Similarly, new subsection 57(2) clarifies and modernises existing subsection 57(2), which ensures that legislative instruments are not subject to multiple disallowance regimes. The disallowance provisions of sections 42 to 48 displace any other provisions for disallowance that may have existed before 1 January 2005, except as noted in subsection 57(5).

 

 

Item 78 - subsections 57(3), (4) and (5)

Item 78 updates references to ‘the commencing day’ in subsections 57(3), (4) and (5) to refer to 1 January 2005, which is the date that the substantive provisions of the Legislative Instruments Act commenced.

Item 79 - Subsection 57(5)

Item 79 makes a consequential amendment to omit a redundant reference to Part 5 of this Act.

Item 80 - At the end of section 57

Item 80 inserts a note stating that the Legislative Instruments Act commenced on 1 January 2005.

Item 81 - After section 57

Item 81 inserts a new section 57A to deal with legislative instruments made before 1 January 2005.

New section 57A - Legislative instruments made under power delegated by the Parliament before 1 January 2005

New section 57A preserves the effect of existing subsection 6(d), and declares that instruments made before 1 January 2005 under a power delegated by the Parliament are legislative instruments if they are:

·          declared to be disallowable instruments for the purposes of section 46A of the Acts Interpretation Act as in force before 1 January 2005 (paragraph 57A(b)(i)), or

·          otherwise disallowable under Part XII of the Acts Interpretation Act as in force before 1 January 2005 (subsection 57A(b)(ii)).

 

Item 82 - Paragraph 58(a)

Item 82 amends paragraph 58(a), which provides that the First Parliamentary Counsel may delegate to a Second Parliamentary Counsel. The amendment clarifies that a Second Parliamentary Counsel is appointed under subsection 4(1) of the Parliamentary Counsel Act 1970 . The term ‘Second Parliamentary Counsel’ was previously defined in subsection 4(1), but is not included in the new Dictionary inserted by item 12. It is appropriate that the term be clarified in paragraph 58(a) instead as this is the only place in which the term is used.

Item 83 - Section 59

Item 83 repeals section 59, which provides for a review of the operation of the Legislative Instruments Act. The review was completed in 2008 as required, so the section is now redundant.

Item 84 - Subsection 60(1)

Item 84 repeals and replaces subsection 60(1), which requires the Attorney-General to appoint persons to a body to review the operation of the sunsetting provisions of the Act. The existing subsection specifies that this is to occur ‘during the 3 months after starting on the 12th anniversary of the commencing day’. As that day is now known, the new provision refers to the specific date, namely ‘between 1 January and 31 March 2017’.

Item 85 - Subsection 60(3)

Item 85 makes a consequential amendment to subsection 60(3) to provide a correct cross-reference.

Item 86 - Subsection 60(4)

Item 86 amends subsection 60(4), which specifies when the body that is to review the sunsetting provisions of the Act must report to the Attorney-General. Existing subsection 60(4) specifies that the report must be provided ‘within 9 months after the 12 th anniversary of the commencing day’. As that day is now known, the new provision refers to the specific date, namely ‘before 1 October 2017’.

Item 87 - Section 61

Item 87 repeals existing section 61, which deals with existing references to the Legislative Instruments Act, and inserts a new section 61 that deals with a different matter.

New section 61 - Legislative instruments and notifiable instrument amendments by regulations under this Act

A new power is set out in new section 61. This new section provides for a regulation to be made under the Act to amend a legislative instrument or notifiable instrument made under some other Act (subsection 61(1)) and for the amendments to include amendments to provisions of an application, saving or transitional nature (subsection 61(2)). Before a regulation can be made, however, the Attorney-General must be satisfied that the relevant rule-maker has agreed to the amendments or repeals.

Under existing arrangements, implementing a single amendment across different types of instruments is complex and typically requires separate instruments to be made by different rule-makers. Under this new provision, a single ‘bulk amendment’ is all that would be required. This could be used to amend multiple instruments following a thematic review. The process under this power would be more efficient as there may be multiple relevant rule-makers but a single regulation can be made by the Attorney-General. A similar ‘bulk repeal’ power already exists in section 48E and has been used to expedite the repeal of many thousands of spent and redundant instruments since late 2012.

Item 87 also inserts new section 61A.

New section 61A—Rules made by First Parliamentary Counsel

New section 61A enables the First Parliamentary Counsel to make rules prescribing matters required or permitted by the Act, and specifies that these rules are legislative instruments (meaning they are subject to disallowance and to sunsetting). These rules will set out matters which are important to support the First Parliamentary Counsel’s obligation to maintain the Register, and facilitate a level of procedural detail that may not be appropriate for including in the primary legislation (the Legislation Act). The rules will be used to facilitate the consistency, accuracy and currency of the Register.

New section 61A establishes the general power to make rules. There is only one matter on which rules must be made, and that is to prescribe the approved website on which registered laws and other documents are to be available to the public under new section 15C. Rules may, however, be made on other matters, including as detailed in the following provisions:

·          new section 15E—Federal Register of Legislation—keeping the Register

·          new section 15L—Events affecting the currency of accuracy of the Register

·          new section 15M—Rules for lodgement and registration

·          new section 15P—Registered compilations—information requirements

·          new section 15Q—Definitions of required compilation event and discretionary compilation event etc.

·          new section 15R—Lodgement of compilations of instruments—required compilation events

·          new section 15U—Compilations—rules

·          new section 15ZA—Authorised versions

Rules rather than regulations are the preferred vehicle for prescribing such matters because the matters tend to be of a technical nature, and the rules may need to be updated on short notice in response to technological and legal developments.

Other provisions within the new Legislation Act that make reference to the rules include:

·          new section15A—Federal Register of Legislation—establishment and maintenance

·          new section 15D—Federal Register of Legislation—correction of errors

·          new section 15H—Registration of legislative instruments and notifiable instruments, and other documents.

New subsection 40(1A) of the Acts Interpretation Act also refers to rules prescribed under the new Legislation Act, in the context of the citation of Acts and instruments.

Item 88 - Paragraph 62(a)

Item 88 clarifies that the reference to matters required or permitted to be prescribed in existing paragraph 62(a) means matters required or permitted to be prescribed by regulation . Section 62 provides the Governor-General with the power to make regulations for this purpose.

Item 89 - Schedule 1

Item 89 repeals Schedule 1. This schedule is spent as it contains amendments to the Acts Interpretation Act that have taken effect.



 

PART 4—REPEALS

The items in this Part repeal spent Acts.

Acts Citation Act 1976

Item 90 - The whole of the Act

Item 90 repeals the Acts Citation Act. This Act is no longer required because it makes amendments to other Acts that have now taken effect.

Acts Publication Act 1905

Item 91 - The whole of the Act

Item 91 repeals the Acts Publication Act. This Act provides rules for the publication of Acts in printed and electronic form. This Act is no longer required because the Bill incorporates the requirements for publication of Acts into the Legislation Act. This provides for the consolidation of publication requirements for both Acts and instruments into a single Act.

Ordinances and Regulations (Notification) Act 1972

Item 92 - The whole of the Act

Item 92 repeals the Ordinances and Regulations (Notification) Act. This Act deems Gazette notification for ordinances and regulations made before its commencement, to be sufficient to satisfy publication requirements in enabling laws. To the extent that this Act may still be required, transitional provisions are included in Part 7 of Schedule 1 to the Bill to continue its operation, while the Act itself can be repealed.

 

 



 

PART 5—AMENDMENTS OF OTHER ACTS

Acts Interpretation Act 1901

Items 93 and 94 - Section 1A

Items 93-97 extend the application of provisions of the Acts Interpretation Act to deal with notifiable instruments as well as legislative instruments, to reflect the establishment of this new instrument category under the Legislation Act.

Items 93 and 94 amend the simplified outline in section 1A of the Acts Interpretation Act to make clear that that Act deals with the interpretation of Acts, legislative instruments, notifiable instruments and other instruments made under an Act. The outline is also updated to refer to the Legislation Act rather than the Legislative Instruments Act. Item 94 makes clear that Part 10 of the Acts Interpretation Act deals with instruments that are not legislative or notifiable instruments.

Item 95 - Subsection 2(1) (note)

Item 95 updates the note to subsection 2(1) of the Acts Interpretation Act so that it states that the Acts Interpretation Act applies to legislative instruments, notifiable instruments and other instruments.

Item 96 - Section 2B

Item 96 adds two new definitions to section 2B of the Acts Interpretation Act, which are consequential to the creation of the new category of instrument, notifiable instruments, and the change of the Act name from the Legislative Instruments Act to the Legislation Act. These new definitions provide that ‘legislative instrument’ and ‘notifiable instrument’ have the same meanings as in the Legislation Act.

Item 97 - Section 2B (definition of Proclamation )

Item 97 repeals the definition of Proclamation in section 2B of the Acts Interpretation Act and replaces it with an updated definition that refers to the new Register and the Legislation Act rather than the Federal Register of Legislative Instruments and the Legislative Instruments Act. A reference to publication in the Gazette is removed in the new definition.

Item 98 - Section 3

Item 98 amends section 3 of the Acts Interpretation Act, which deals with when Acts come into operation. The amendment replaces ‘it shall come into operation immediately on the expiration of the last preceding day’ with ‘it comes into operation at the start of the day’. This amendment helps to clarify the commencement time of Acts and is consistent with the new section 12 of the Legislation Act.

Item 99 - At the end of section 13

Item 99 inserts a new subsection 13(3) to the Acts Interpretation Act to deal with text known as ‘alternative text’. Section 13 of the Acts Interpretation Act provides rules for determining what material is part of an Act.

New subsection 13(3) provides that text is not part of an Act, or a compilation of an Act, if the text:

·          only indicates the effect of an element of the Act

·          is accessible in an electronic version of the Act or compilation, and

·          does not appear in the printed text of an Act (or an amendment of the Act), as enacted by the Parliament, or any other printed version of the Act or compilation.

Alternative text is additional text that is added to improve the usability of the document. Such text can be introduced, revised or omitted at any time as a result of new subsection 13(3) of the Acts Interpretation Act and new subsection 15V(5) of the Legislation Act (see item 26). For example, this text may describe a picture in the document to assist users with visual disabilities. Providing that this alternative text is not part of an Act gives greater flexibility for the Office of Parliamentary Counsel to enhance the accessibility of the Register. It would not be appropriate to treat this text as part of the Act because it is added after its enactment and is not subject to parliamentary scrutiny.

Item 100 - Section 15AE

Item 100 repeals section 15AE of the Acts Interpretation Act. This section deals with legislative instruments and is no longer required because most of its contents are incorporated into new sections 8 and 9 of the Legislation Act by the amendments in item 12. Subsection 15AE(3) is not incorporated into sections 8 or 9 of the Legislation Act. Subsection 15AE(3) allows an enabling Act or an instrument to declare that an instrument is not a legislative instrument. New section 8 of the Legislation Act omits the content of subsection 15AE(3) to ensure that provisions that exempt an instrument from the requirements of the Legislation Act (as applied to a legislative instrument) are included in an Act, and cannot be exempted through an instrument (see paragraph 8(6)(b)). This will facilitate greater parliamentary scrutiny and policy consideration of the exemption.

Item 101 - Subsection 33(3AB)

Item 101 amends subsection 33(3AB) of the Acts Interpretation Act to insert ‘a notifiable instrument’ after ‘except a legislative instrument’.

Subsection 33(3AB) is a parallel provision to subsection 13(3) of the Legislation Act. These provisions enable a person with the power to make an instrument specifying, declaring or prescribing a matter, or doing anything in relation to a matter, to identify the matter by reference to a class or classes of matters.

The amendment has the effect of ensuring that subsection 13(3) of the Legislation Act applies in relation to the power to make a legislative or notifiable instrument, while subsection 33(3AB) of the Acts Interpretation Act applies in relation to the power to make other types of instruments (not including rules of court).

Corresponding amendments to the Legislation Act are made in items 17 and 18.

Item 102 - Subsection 33(3AB) (note)

Item 102 amends the note to subsection 33(3AB) of the Acts Interpretation Act to include notifiable instruments and refer to the new Legislation Act.

Item 103 - Part 9 (heading)

Item 103 substitutes a new heading for Part 9 of the Acts Interpretation Act to reflect the expanded contents of this Part. The new heading, ‘Citation of Acts and instruments’, covers the citation of Acts and instruments rather than only the citation of Acts, consistent with further amendments to Part 9 below.

Item 104 - Section 40 (heading)

Item 104 repeals the heading of section 40 of the Acts Interpretation Act and replaces it with, ‘Citation of Acts and instruments’.

Item 105 - Before subsection 40(1)

Item 105 amends section 40 of the Acts Interpretation Act, to insert a new subsection 40(1A) that provides for the citation of Acts, legislative instruments and notifiable instruments. New subsection 40(1A)(a) provides that an Act may be cited by:

·          the short title of the Act (subparagraph (1A)(a)(i))

·          the secular year in which it was passed, and its number (subparagraph (1A)(a)(ii)), or

·          a unique identifier given to the Act in accordance with the rules prescribed under the Legislation Act (subparagraph (1A)(a)(iii)).

 

New subsection 40(1)(b) provides that a legislative instrument or notifiable instrument may be cited by:

·          any name the instrument gives itself (subparagraph (1A)(b)(i))

·          a unique identifier given to the instrument in accordance with the rules prescribed under the Legislation Act (subparagraph (1A)(b)(ii))

·          if the instrument was numbered under a Commonwealth law - the year it was made and its number along with a reference to the kind of instrument if necessary (subparagraph (1A)(b)(iii))

·          if the instrument was notified or published in the Gazette - the date and (if necessary) number and page of the Gazette in which it was notified or published (subparagraph (1A)(b)(iv)), or

·          the date it was made, along with a reference to the Act or instrument, and (if necessary) provision, under which it was made (subparagraph (1A)(b)(v)).

 

Item 105 also inserts a heading for subsection 40(1) of the Acts Interpretation Act, ‘Citation of Imperial Acts, State Act and Territory Acts’. The inserted heading reflects the content of subsection 40(1), as amended by item 106.

Item 106 - Paragraph 40(1)(a)

Item 106 repeals paragraph 40(1)(a) of the Acts Interpretation Act, which deals with the citation of Commonwealth Acts. This paragraph is no longer needed as its content is dealt with in new subsection 40(1A) (item 105).

Item 107 - Part 10 (heading)

Item 107 repeals the heading of Part 10 of the Acts Interpretation Act (‘Non-legislative instruments and resolutions’) and substitutes a new heading. The new heading ‘Instruments not covered by the Legislation Act, and parliamentary resolutions’ reflects the amended scope of the Part following the amendments made by the Bill. Specifically, it reflects that the Legislation Act deals with a new category of instrument, notifiable instruments, which are not legislative instruments. Part 10 of the Acts Interpretation Act is only intended to deal with instruments not covered by the Legislation Act.

Item 108 - Subsection 46(1)

Item 108 amends subsection 46(1) of the Acts Interpretation Act to update the provision with a reference to the new Legislation Act and to the new category of instrument, notifiable instruments. Section 46 deals with the construction of instruments, and is a parallel provision to section 13 of the Legislation Act.

Item 109 - Paragraph 46(1)(b)

Item 109 repeals paragraph 46(1)(b) of the Acts Interpretation Act, which deals with expressions used in instruments, and substitutes a new paragraph to provide greater clarity. The new paragraph omits the term ‘enabling legislation’ and instead uses ‘Act or instrument, as in force from time to time, that authorises the making of the instrument in which the expressions are used’.

Item 110 - After subsection 46(2) (before the note)

Item 140 inserts a new subsection 46(3) into the Acts Interpretation Act to provide that the authority for an instrument (other than a legislative or notifiable instrument or a rule of court) can amend or repeal the instrument even if it has otherwise been amended by an Act. This amendment is parallel to the new subsection 13(5) of the Legislation Act, as inserted by item 19.

Item 111 - Section 46 (note)

Item 111 amends the note to section 46 to refer to notifiable instruments and the new Legislation Act. The note identifies that section 46 has a parallel provision in section 13 of the Legislation Act.

Item 112 - Subsection 46AA(1)

Items 112-116 amend section 46AA of the Acts Interpretation Act. Section 46AA deals with prescribing matters by reference to other instruments. The existing section 46AA applies to instruments that are not legislative instruments.

Item 112 extends section 46AA to instruments which are not legislative instruments or notifiable instruments.

Item 113 - Paragraph 46AA(1)(a)

Item 113 repeals paragraph 46AA(1)(a) and replaces it with a new paragraph, which when read with the amendments in items 114 and 115, enables instruments that are not legislative instruments or notifiable instruments to incorporate or adopt the provisions of an Act or a disallowable legislative instrument, as in force from time to time.

Unless there is a contrary intention in the enabling legislation, the instrument can only incorporate other documents as they are in force at the time when the instrument takes effect (see paragraph 46AA(1)(b)).

Item 114 - Paragraph 46AA(1)(b)

Item 114 amends paragraph 46AA(1)(b) to replace ‘instrument takes effect’ with ‘instrument commences’. This amendment is made to reflect current drafting language.

Item 115 - After subsection 46AA(2) (before the note)

Item 115 inserts new subsection 46AA(3) to the Acts Interpretation Act. New subsection 46AA(3) provides that legislative instruments covered by this subsection are disallowable legislative instruments within the meaning of the Legislation Act. It provides that legislative instruments that were disallowable under the Legislative Instruments Act or any other Act at any time before 1 January 2005 (this is when the substantive provisions of the Legislative Instruments Act commenced) are legislative instruments. This provision supports subparagraph 46AA(1)(a)(ii).

Item 115 also inserts new subsection 46AA(4). This enables an instrument that is not a legislative instrument or a notifiable instrument (the enabling instrument) to incorporate by reference a form for the purposes of an Act, that instrument or another instrument. This can only be done when the enabling instrument provides that the form is a notifiable instrument or is required to be publicly available in another specified way. This ensures that users of the instrument are able to readily access the relevant form.

The amendments to section 46AA mirror the amendments in items 21-25 amending the parallel provision in the Legislation Act (section 14), which deals with incorporation by reference for legislative and notifiable instruments.

Item 116 - Section 46AA (note)

Item 116 expands the note to section 46AA to reflect the expansion of this section to cover the new category of notifiable instruments.

Item 117 - Section 46B

Item 117 repeals section 46B of the Acts Interpretation Act, which provides for a special disallowance regime for non-legislative instruments. This regime applies to instruments made under various laws within the Defence portfolio. All of these instruments are able to be classified as legislative instruments (and consequently fall within the disallowance regime of the Legislation Act) with no substantive changes in the effect of the law. This enables the removal of the special, and unnecessary, disallowance regime provided by section 46B of the Acts Interpretation Act. This alignment of disallowance procedures is consistent with recommendation 36 of the 2008 Review of the Legislative Instruments Act 2003 . Further, this enhances the status of the Register as the central repository and authoritative source of Commonwealth legislative instruments, encouraging a gradual reduction in other publication procedures.

Items 118-127 make consequential amendments to various laws within the Defence portfolio to effect this change or to update references to the Legislation Act.

 

 

Defence Act 1903

Item 118 - Subsections 52(4) and (4A)

Item 118 repeals subsections 52(4) and (4A) of the Defence Act 1903 to remove redundant references to the Legislative Instruments Act.

This item inserts a new subsection 52(4A) to provide that paragraph 14(1)(a) of the Legislation Act, which allows incorporation of disallowable legislative instruments into other instruments by reference, applies to determinations under section 58H of the Defence Act.

New subsection 52(4A) does not include a reference to instruments made under section 58B of the Defence Act, as these instruments were non-legislative disallowable instruments pursuant to section 46 of the Acts Interpretation Act. These instruments are declared to be legislative instruments by item 119, meaning they are now subject to paragraph 14(1)(a) of the Legislation Act.

The new note to subsection 52(4A) explains the effect of section 14 of the Legislation Act and clarifies that section 14 would allow a determination under this section to provide for matters by reference to a determination under section 58B of the Defence Act.

Item 119 - Subsection 58B(1)

Item 119 amends subsection 58B(1) of the Defence Act to replace the phrase ‘instrument in writing’ with ‘legislative instrument’. The effect of this amendment is that determinations made under this subsection are declared to be as legislative instruments, and will fall within the scope of the Legislation Act.

Item 120 - Subsection 58B(1A)

Item 120 repeals subsection 58B(1A) of the Defence Act and inserts a new subsection 58B(1A). Existing subsection 58B(1A) provides for incorporation of other instruments by reference to paragraph 46AA(1)(a) of the Acts Interpretation Act. That provision applies to instruments that are not legislative instruments or notifiable instruments (as amended by item 112).

New subsection 58B(1A) is substituted to refer to the parallel provision in section 14 of the Legislation Act. This amendment is consequential to the amendment in item 119, which provides that determinations made under section 58B are legislative instruments.

This new provision provides that paragraph 14(1)(a) of the Legislation Act, which allows incorporation of disallowable legislative instruments into other instruments by reference, applies to determinations under section 58H of the Defence Act and determinations under section 24 of the Public Service Act 1999 .

Item 121 - Subsections 58B(4), (5), (5A), (5B), (5C), (6) and (7)

Item 121 repeals subsections 58B(4), (5), (5A), (5B), (5C), (6) and (7) of the Defence Act. Subsection 58B(4) is redundant following the repeal of section 46B of the Acts Interpretation Act (in item 117) and the amendment to reclassify determinations under section 58B as legislative instruments (item 119). Subsections 58B(5), (5A), (5B), (5C), (6) and (7) are repealed because gazettal and publishing for determinations under section 58B and the numbering and citation of these determinations are dealt with by the relevant provisions of the Legislation Act.

Item 122 - Subsection 124(1A)

Item 122 amends subsection 124(1A) of the Defence Act to remove a redundant reference to determinations made under section 58B of that Act. This amendment should be read with the amendments in items 119 and 123.

Item 123 - At the end of subsection 124(1A)

Item 123 inserts a new note at the end of subsection 124(1A) of the Defence Act.

Subsection 124(1A) provides that the regulations may incorporate by reference instruments that are made under specified powers. Reference to determinations made under section 58B of the Act has been removed in item 122.

The new note to the subsection states that section 14 of the Legislation Act would allow a regulation to prescribe matters by reference to a determination under section 58B of the Defence Act as in force at a particular time or from time to time, as these instruments would be disallowable legislative instruments for the purposes of the Legislation Act.

Defence Force Discipline Act 1982

Item 124 - Subsection 3(10)

Item 124 amends subsection 3(10) of the Defence Force Discipline Act 1982 to replace ‘a provision of any other regulations under any Act as in force at a particular time or as in force from time to time, or any determination under section 58B or 58H’, with ‘a determination under section 58H’.

This amendment removes the reference to a determination made under section 58B of the Defence Act, and should be read with the amendments in items 119 and 125. The reference to incorporating other regulations under any Act is unnecessary because regulations made under the Defence Force Discipline Act are already able to refer to other regulations under section 14(1) of the Legislation Act.

Item 125 - At the end of subsection 3(10)

Item 125 inserts a new note to subsection 3(10) of the Defence Force Discipline Act. The note states that section 14 of the Legislation Act would allow a regulation to prescribe matters by reference to a determination under section 58B of the Defence Act as in force at a particular time or from time to time, as these instruments would be disallowable legislative instruments for the purposes of the Legislation Act.

Defence Force Retirement and Death Benefits Act 1973

Item 126 - Subsection 131(4)

Item 126 amends subsection 131(4) of the Defence Force Retirement and Death Benefits Act 1973 to remove a redundant reference to determinations made under section 58B of the Defence Force Act. This amendment should be read with the amendments in items 119 and 127.

Item 127 - At the end of subsection 131(4)

Item 127 adds a new note to subsection 131(4) of the Defence Force Retirement and Death Benefits Act. The note states that section 14 of the Legislation Act would allow a regulation to prescribe matters by reference to a determination under section 58B of the Defence Act as in force at a particular time or from time to time, as these instruments would be disallowable legislative instruments for the purposes of the Legislation Act.

Items 128 to 165

Items 128 to 165 amend references to the Legislative Instruments Act 2003 and the (previously repealed) Legislative Instruments Act 1997 in various Acts to refer to the new Legislation Act. These items also amend references to sections of the Legislative Instruments Act 2003 to refer to the relevant sections of the Legislation Act. These amendments are consequential to the repeal and substitution of sections 5 to 12 of the Legislative Instruments Act 2003 with new provisions of the Legislation Act as set out in the Bill.

These items also make amendments that are consequential to the transferring of the items listed in the tables in subsections 44(2) and 54(2) of the Legislative Instruments Act 2003 to the new Regulations under the Legislation Act (see items 47 and 74). These tables list instruments that are not subject to the disallowance and sunsetting regimes of the Legislation Act. The specified exemptions from disallowance and sunsetting will be consolidated in one instrument rather than spread across the Act and the Regulation.

Not all references to the Legislative Instruments Act 2003 in existing legislation are updated in the Bill. Part 6 provides general transitional arrangements for how references to the Legislative Instruments Act 2003 are to be read after the commencement of Schedule 1 of the Bill. Textual amendments to update references to the Legislative Instruments Act 2003 can also be made after the enactment of the Bill by the following methods:

·          editorial changes in the preparation of compilations of Acts and legislative instruments, using the new powers given to the First Parliamentary Counsel in the amendments in the Bill (new section 15V)

·          omnibus technical amendments by Statute Law Revision Bills or portfolio legislation amendments of Acts or instruments, and

·          omnibus technical amendments to legislative instruments using the new regulation-making power under the Legislation Act (item 87).

 

Family Law Act 1975

Item 128 - Section 26E (heading)

Item 128 substitutes a new heading to section 26E of the Family Law Act1975 to refer to the Legislation Act.

Item 129 - Section 26E

Item 129 amends section 26E of the Family Law Act to remove references to sections of the Legislative Instruments Act 2003 and replace them with references to the relevant sections of the Legislation Act.

 

Item 130 - Paragraph 33C(8)(b)

Item 130 amends paragraph 33C(8)(b) of the Family Law Act to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 131 - Subsections 37A(14)

Item 131 amends subsection 37A(14) of the Family Law Act to removes references to sections of the Legislative Instruments Act 2003 and replace them with references to the relevant sections of the Legislation Act.

Item 132 - Subsection 40(1)

Item 132 amends subsection 40(1) of the Family Law Act to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 133 - Subsection 123(2)

Item 133 amends subsection 123(2) of the Family Law Act to remove references to sections of the Legislative Instruments Act 2003 and replace them with references to the relevant sections of the Legislation Act.

Item 134 - Subsection 123(2A)

Item 134 amends 123(2A) of the Family Law Act to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 135 - Paragraph 125(1)(baa)

Item 135 amends paragraph 125(1)(baa) of the Family Law Act to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Federal Circuit Court of Australia Act 1999

Item 136 - Paragraph 41(10)(b)

Item 136 amends paragraph 41(10)(b) of the Federal Circuit Court of Australia Act 1999 to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 137 - Subsection 81(3)

Item 137 amends subsection 81(3) of the Federal Circuit Court of Australia Act to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 138 - Subsection 81(4)

Item 138amends subsection 81(4) of the Federal Circuit Court of Australia Act to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 139 - Subsection 120(4)

Item 139 amends subsection 120(4) of the Federal Circuit Court of Australia Act to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Federal Court of Australia Act 1976

Item 140 - Subsection 59(4)

Item 140 amends subsection 59(4) of the Federal Court of Australia Act 1976 to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 141 - Subsection 59(5)

Item 141 amends subsection 59(5) of the Federal Court of Australia Act to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 142 - Section 59A (heading)

Item 142 amends the heading to section 59A of the Federal Court of Australia Act to refer to the Legislation Act.

Item 143 - Section 59A

Item 143 amends section 59A of the Federal Court of Australia Act to replace the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Great Barrier Reef Marine Park Act 1975

Item 144 - Subsections 31(1) and (3) (notes)

Item 144 amends the notes to subsections 31(1) and (3) of the Great Barrier Reef Marine Park Act 1975 to remove references to items of the tables in subsections 44(2) and 54(2) of the Legislative Instruments Act 2003 and replace them with references to the Regulation made for the purposes of subsections 44(2) and 54(2) of the Legislation Act.

Item 145 - Section 39ZF (note)

Item 145 amends the note to section 39ZF of the Great Barrier Reef Marine Park Act to remove a reference to an item of the table in subsection 54(2) of the Legislative Instruments Act 2003 and replace it with a reference to the regulations made for the purposes of subsections 54(2) of the Legislation Act.

Item 146 - Subsections 39ZG(4) and 39ZH(1) (notes)

Item 146 amends the notes to subsections 39ZG(4) and 39ZH(1) to remove references to an item of the table in subsection 54(2) of the Legislative Instruments Act 2003 and replace them with references to the regulations made for the purposes of subsection 54(2) of the Legislation Act.

Health Insurance Commission (Reform and Separation of Functions) Act 1997

Item 147 - Section 40 (heading)

Item 147 repeals the heading of section 40 of the Health Insurance Commission (Reform and Separation of Functions) Act 1997 and replaces it with a new heading. This amendment removes an outdated reference to the Legislative Instruments Act 1997. This is consequential to the repeal of section 61 of the Legislative Instruments Act 2003 by the Bill (item 87). Section 61 of the Legislative Instruments Act 2003 provides for transitional arrangements regarding references to earlier Legislation Acts in Commonwealth laws in force at the time of commencement of the Legislative Instruments Act 2003. References to previous Legislative Instruments Acts made before the commencement of the Legislative Instruments Act 2003, have effect as though they were references to the Legislative Instruments Act 2003. As section 61 is repealed, such references to outdated Legislative Instruments Act are updated directly.

Item 148 - Section 40

Item 148 amends section 40 of the Health Insurance Commission (Reform and Separation of Functions) Act to replace a reference to the Legislative Instruments Act 1997 with a reference to the Legislation Act.

Human Rights (Parliamentary Scrutiny) Act 2011

Item 149 - Subsection 3(1) (definition of rule-maker)

Item 149 amends the definition of rule-maker in subsection 3(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 to replace a reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 150 - Subsection 9(1)

Item 50 amends subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act to replace a reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 151 - Subsection 9(1) (note)

Item 50 amends the note in subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act to replace a reference to subsection 26(1A) of the Legislative Instruments Act 2003 with a reference to section 15J of the Legislation Act.

Judiciary Act 1903

Item 152 - Subsection 86(2)

Item 152 amends subsection 86(2) of the Judiciary Act 1903 to replace a reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 153 - Subsection 86(3)

Item 153 amends subsection 86(3) of the Judiciary Act to replace a reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 154 - Paragraph 88(cb)

Item 154 amends paragraph 88(cb) of the Judiciary Act to replace a reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

 

 

 

Motor Vehicle Standards Act 1989

Item 155 - Section 7 (note)

Item 155 replaces the note in section 7 of the Motor Vehicle Standards Act 1989 with a new note . The new note omits a reference to an item of the table in subsection 54(2) of the Legislative Instruments Act 2003 and instead refers to regulations made for the purposes of subsection 54(2) of the Legislation Act.

Item 156 - Section 9 (note)

Item 156 replaces the note in section 9 of the Motor Vehicle Standards Act. The new note omits a reference to an item of the table in subsection 54(2) of the Legislative Instruments Act 2003 and instead refers to regulations made for the purposes of subsection 54(2) of the Legislation Act.

Parliamentary Counsel Act 1970

Item 157 - Paragraph 3(1)(g)

Item 157 amends paragraph 3(1)(g) of the Parliamentary Counsel Act 1970 to replace references to the Acts Publication Act (repealed by item 91) and the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Item 158 - Subsection 22A(8)

Item 158 amends subsection 22A(8) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983 to remove a reference to the Legislative Instruments Act 2003.

Item 159 - Subsection 34(1) (note)

Item 159 substitutes a new note to subsection 34(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act. The new note omits a reference to an item of the table in subsection 54(2) of the Legislative Instruments Act 2003 and instead refers to regulations made for the purposes of subsection 54(2) of the Legislation Act.

Item 160 - Subsection 34(8)

Item 160 amends subsection 34(8) of the Protection of the Sea (Prevention of Pollution from Ships) Act to replace a reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Radiocommunications Act 1992

Item 161 - Subsection 82(4)

Items 161 amends subsection 82(4) of the Radiocommunications Act 1992 to replace a reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

 

 

Item 162 - Paragraph 314A(5)(b)

Item 162 amends paragraph 314A(5)(b) of the Radiocommunications Act to replace a reference to the Legislative Instruments Act 1997 with a reference to the Legislation Act. This change is consequential to the repeal of section 61 of the Legislative Instruments Act 2003 (by item 87), which deals with references to earlier Legislative Instruments Acts.

Telecommunications Act 1997

Item 163 - Paragraph 589(5)(b)

Item 163 amends paragraph 589(5)(b) of the Telecommunications Act 1997 to remove a reference to the Legislative Instruments Act 1997 and replace it with a reference to the Legislation Act. This change is consequential to the repeal of section 61 of the Legislative Instruments Act 2003, which deals with references to earlier Legislative Instruments Acts, by item 87.

Trade Marks Act 1995

Item 164 - Subsection 6(3)

Item 164 amends subsection 6(3) of the Trade Marks Act 1995 to replace a reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act.

Item 165 - Subsection 18(2)

Item 165 amends subsection 18(2) of the Trade Marks Act 1995 to replace a reference to the Legislative Instruments Act 1995 with a reference to the Legislation Act. This change is consequential to the repeal of section 61 of the Legislative Instruments Act 2003, which deals with references to earlier Legislative Instruments Acts, by item 87.

 



 

PART 6—REFERENCES TO THE LEGISLATIVE INSTRUMENTS ACT 2003

Item 166 - References to the Legislative Instruments Act 2003

Existing section 61 provides for transitional arrangements regarding references to earlier Legislative Instruments Acts in Commonwealth laws in force at the time of commencement of the Legislative Instruments Act 2003. References to the Legislative Instruments Act 1994, or any later Legislative Instruments Acts made before the commencement of the Legislative Instruments Act 2003, have effect as though they were references to the Legislative Instruments Act.

Existing section 61 is repealed in item 87 of Part 3 of Schedule 1. That section is no longer necessary to address how references to Legislative Instruments Acts prior to 2003 are to be read, as the remaining references to these Acts are updated in Part 5 of Schedule 1 to the Bill.

Item 166 provides for new transitional arrangements that allow for references to the Legislative Instruments Act in legislation in force before the commencement of the new Legislation Act, to be read as though they were references to the relevant parts of the Legislation Act.

Item 166 includes a table showing how references to the Legislative Instruments Act are to be read following the commencement of Schedule 1 of the Bill. The table provides that:

·          references to the Legislative Instruments Act are to be read as references to the Legislation Act

·          references to Part 5 of the Legislative Instruments Act (parliamentary scrutiny of legislative instruments) are to be read as references to Part 2 of Chapter 3 of the Legislation Act

·          references to Part 6 of the Legislative Instruments Act (sunsetting) are to be read as references to Part 4 of Chapter 3 of the Legislation Act, and

·          references to any other provision of the Legislative Instruments Act are to be read as references to the corresponding provision of the Legislation Act, whether or not the number of the provision is the same.

 

These arrangements do not textually amend other Acts, but ensure that references to the Legislative Instruments Act operate as though they were references to the Legislation Act. Textual amendments to update references to the Legislative Instruments Act can also be made after the enactment of the Bill by the following methods:

·          editorial changes in the preparation of compilations of Acts and legislative instruments, using the new powers given to the First Parliamentary Counsel in the amendments in the Bill (new section 15V)

·          omnibus technical amendments by Statute Law Revision Bills or portfolio legislation amendments of Acts or instruments, and

·          omnibus technical amendments to legislative instruments using the new regulation-making power under the Legislation Act (item 87).

 

Item 166 provides that the rules for interpreting references to the Legislative Instruments Act do not limit the effect of section 10 of the Acts Interpretation Act. That section deals with references in other Acts to Acts whose short title is changed, and applies to other Commonwealth laws (see section 46 of the Acts Interpretation Act and section 13 of the Legislation Act).

PART 7 - APPLICATION, SAVINGS AND TRANSITIONAL

Part 7 contains application, savings and transitional provisions.

Item 167 - Application of amendments to instruments general

Item 197 provides that the amendments of Acts in Schedule 1 of the Bill generally apply to instruments made before, on or after the commencement of Schedule 1. Various exceptions to this rule, and special cases, are set out in the other items in this Part.

Item 168 - Savings pre-commencement status of instruments and ongoing effect of existing exemptions

The commencement of the amendments in Schedule 1 to the Bill does not change the status of existing instruments as legislative or non-legislative. Subsection (1) provides that instruments that were legislative instruments before the commencement of Schedule 1 will continue to be legislative instruments after the commencement of Schedule 1.

Subsection (2) provides that instruments that were not legislative instruments before the commencement of Schedule 1 will continue not to be legislative instruments after its commencement, unless they are registered as legislative instruments after the commencement of the Bill (subsection (4)).

Subsection (3) preserves the effect of a provision of a legislative instrument made prior to commencement of Schedule 1, which declares that instruments made under that instrument are not legislative instruments. Those instruments will only become legislative instruments by being registered as legislative instruments (subsection (4)).

Item 169 - Savings displacement of subsection 12(2) of the Legislative Instruments Act 2003

Item 169 preserves the effect of provisions of Acts that displace the effect of subsection 12(2) of the Legislative Instruments Act regarding retrospective operation of legislative instruments.

Existing subsection 12(2) provides, generally, that a legislative instrument that commences retrospectively (and by doing so disadvantages a person or imposes a liability on the person) is of no effect. To displace the effect of subsection 12(2), current drafting practice is to provide, in the Act under which the instrument is made, that despite subsection 12(2), a legislative instrument may be made under the Act with retrospective effect.

New subsection 12(2) provides that a legislative instrument (or notifiable instrument) that commences retrospectively does not apply so as to disadvantage a person or to impose liability on a person, but new section 12 does not otherwise prevent an instrument from commencing retrospectively. Existing provisions of Acts expressed to displace subsection 12(2) will not properly apply in relation to new subsection 12(2) because of this change.

Consequently, item 169 will enable existing provisions in any Acts that displace the operation of subsection 12(2) to continue to operate as if they more generally provided that subsection 12(2) “does not apply” in relation to a legislative instrument made under the Act.

Item 170 - Application of amendments incorporation of material in instruments

Item 170 provides a savings provision in relation to section 14 (incorporation of documents into instruments). The amended section 14 applies to legislative or notifiable instruments that provide for the incorporation of documents if the instruments were made on or after the commencement of Schedule 1 to the Bill (paragraph (a)). The amended section 14 applies to an incorporated document (other than a form) regardless of when the document was made (paragraph (b)). The amended section 14 applies to forms made on or after commencement of Schedule 1 to the Bill (paragraph (c)).

Item 171 - Application of amendments to instruments general

Item 171 provides an application provision so that paragraph 11(2)(a) of the Legislation Act (as amended) applies in relation to a commencement instrument made on or after the commencement of this Schedule. Upon the commencement of this Schedule, a commencement instrument, such as a Proclamation, will be a notifiable instrument, for the purposes of the Legislation Act. A commencement instrument that was made prior to the commencement of this Schedule will continue to be a legislative instrument.

Item 172 - Transitional lodgement of legislative instruments, compilations and explanatory statements for registration

Item 172 provides rules for how the amendments to the Legislative Instruments Act in Part 2 of Schedule 1 apply to instruments, compilations and explanatory statements that have been lodged for registration before the commencement of the amendments but have not yet been registered. These documents will be treated as if they had been lodged for registration under the amended Legislative Instruments Act, renamed the Legislation Act.

Item 173 - Transitional Federal Register of Legislation

Under the amendments in the Bill, the contents of the existing Acts database (for Acts and compilations of Acts) and the Federal Register of Legislative Instruments (for legislative instruments, compilations of legislative instruments and explanatory statements) will be incorporated into the new Register. This Register is created by new section 15A of the Legislation Act.

Item 173 makes clear that if an Act or a compilation of an Act was in the Acts database immediately before the commencement of Schedule 1, it is taken to have been registered on the Register (subsection (1)). The same principle applies to a legislative instrument, a compilation of a legislative instrument or an explanatory statement that was registered on the Federal Register of Legislative Instruments prior to the commencement of Schedule 1. These documents will be taken to have been registered under the Register (subsection (2)). Any other document containing information that was registered on the Federal Register of Legislative Instruments prior to the commencement of Schedule 1 will also be taken to have been registered on the Register (subsection (3)).

These provisions mean that documents that are currently accessible through the Acts database or the Federal Register of Legislative Instruments (both currently accessed online through ComLaw) will continue to be available on the new Register. Further, documents that were put into the Acts database or registered on the Federal Register of Legislative Instruments prior to the Bill coming into effect will automatically become part of the new Register. It will not be necessary for rule-makers to take any action in order for these documents to become part of the new Register.

Item 174 - Application of amendments gazettal and other publication requirements

Item 174 deals with how publication requirements in section 56 of the Legislation Act (as amended) apply to legislative instruments made under enabling laws that were made at different times.

For gazettal requirements, section 56 (as amended) provides that if an Act or legislative instrument requires legislative instruments made under that law to be published in the Gazette , this requirement is met by registration of the legislative instrument on the Register. This applies to legislative instruments made under enabling laws that were made both before and after commencement of the amendments of the Legislative Instruments Act (1 January 2005).

For publication requirements other than publication in the Gazette , such as publication in a newspaper, section 56 (as amended), provides that these requirements are additional to registration if the legislative instrument is made under an enabling law that was made on or after commencement of the Legislative Instruments Act. This is because after the commencement of the Legislative Instruments Act, publication was primarily through registration and if additional requirements were imposed in laws made after Federal Register of Legislative Instruments was created, there must have been an intention that further publication requirements beyond registration should apply.

This item provides that the provisions in section 56 apply regardless of whether the law that enables the making of a legislative instrument was made before or after commencement of Schedule 1. However, the provisions only apply to instruments made after the commencement of Schedule 1.

Item 175 - Saving repeal of the Ordinances and Regulations (Notification) Act 1972

Item 175 provides a savings provision following the repeal of the Ordinances and Regulations (Notification) Act by the Bill and deals with the impact on certain instruments made before that Act came into effect.

Subsection 3(1) of the Ordinances and Regulations (Notification) Act provides that if, before the commencement of that Act, a form of words was published in the Gazette that was, purported to be, or was apparently intended to be a notice about the making of an ordinance under a law of the Commonwealth, or any regulations, rules, by-laws or other instrument under a law of the Commonwealth or of a Territory, or a notice of any of these types of instruments being made, the publication of these words in the Gazette is sufficient to meet any requirement to publish or notify the instrument in the Gazette . Further, the date on which the form of words was published in the Gazette will be taken to be the date on which the instrument was published or notified in the Gazette .

Item 175 states that the Ordinances and Regulations (Notification) Act continues to apply to such instruments despite the repeal of the Act. This means that instruments for which the publication requirements are currently taken to have been met under the Ordinances and Regulations (Notification) Act will not need to meet any further publication requirements after the Act is repealed.

Item 176 - Application of amendments of the Acts Interpretation Act 1901 definition of proclamation

Item 176 deals with the application of the updated definition of proclamation in section 2B of Acts Interpretation Act, which refers to the Register and the Legislation Act rather than the Federal Register of Legislative Instruments and the Legislative Instruments Act. Under item 176, the new definition is taken to include a proclamation made by the Governor-General that was published before the commencement of Schedule 1 to the Bill.

Item 177 - Application of amendments of the Acts Interpretation Act 1901 citation of Acts and instruments

Item 177 provides that subsection 40(1A) of the Acts Interpretation Act, as amended by item 105 of Part 5 of this Schedule, applies in relation to an Act, instrument or document (the citing Act, instrument or document) that cites an Act or legislative instrument, regardless of when the citing Act, instrument or document was made or executed, and regardless of when the Act or legislative instrument cited was enacted or made.

Item 178 - Application of amendments of the Acts Interpretation Act 1901 incorporation of material in non-legislative instruments

Item 178 deals with the application of the amendments in the Bill to section 46AA of the Acts Interpretation Act, regarding incorporation of documents into instruments that are not legislative or notifiable instruments or rules of court.

Existing section 46AA applies to instruments that are not legislative instruments or rules of court. It is amended by item 111 to apply to instruments that are not legislative instruments, notifiable instruments or rules of court. Under the amended provision, instruments that are not legislative or notifiable instruments may incorporate or adopt the provisions of an Act or a disallowable legislative instrument, as in force from time to time. Unless there is a contrary intention in the enabling law, the instrument can only incorporate other documents as they are in force at the time when the instrument takes effect. Item 178 provides that the amended section 46AA applies to instruments made on or after the commencement of Schedule 1 and to documents (other than forms) made or amended at any time. The amended section 46AA applies in relation to forms that are made on or after the commencement of Schedule 1.

Item 179 - Saving and transitional repeal of section 46B of the Acts Interpretation Act 1901

Item 179 sets out the transitional arrangements that are consequential on the repeal of section 46B of the Acts Interpretation Act in item 17. Section 46B deals with disallowable non-legislative instruments. If an instrument to which section 46B applies was in force immediately before the commencement of the amendments in Schedule 1, section 46B continues to apply to that instrument. Section 46B provides that certain provisions of the Legislative Instruments Act also apply to instruments to which section 46B applies. These provisions, as applied by section 46B, continue to apply to an instrument that was in force before the commencement of the amendments in Schedule 1. Item 179 also provides that the rule-maker may lodge such an instrument for registration under the Legislation Act on or after commencement of Schedule 1 (subsection 3). If this is done, the First Parliamentary Counsel must register the instrument as a legislative instrument (subsection 4). This provides a mechanism for section 46B instruments that are in force when the new Register is established to be made accessible on the Register.

Item 179 provides that the disallowance provisions of the Legislation Act will be taken to have been satisfied for these instruments (subsection 5). The Legislation Act otherwise applies in relation to these instrument as it would in relation to any other legislative instrument registered on or after commencement of Schedule 1.

 



 

Schedule 2 - Machinery of Government Changes

GENERAL OUTLINE

Following an election, and in other circumstances, there may be organisational or functional changes, known as machinery of government changes, affecting the Australian Government. These changes may involve the renaming of the titles of Ministers, Departments or other agencies; the abolition of a position, Department or other agency; or the transfer of responsibility for a specific Act or function between ministers, Departments or other agencies. Machinery of government changes are generally reflected in changes to the Ministry list and the Administrative Arrangements Order.

Schedule 2 amends the Acts Interpretation Act to expand and simplify the provisions dealing with machinery of government changes. The amendments broaden the rules used for interpreting references to Ministers and Departments in legislation, reducing the need to make substituted reference orders. Substituted reference orders are instruments that can be made to alter how specific references to Ministers, Departments and Secretaries of Departments in legislation are read.

The amendments also provide greater flexibility in the use of substituted reference orders.  Substitutions will be possible for references to a broader range of authorities. For example, these orders will be used to address the transfer of administrative responsibility from a Department to a different type of agency, rather than only being available where the transfer is between two Ministers, two Secretaries or two Departments.

The amendments broaden the rules for interpreting references to authorities in agreements entered into by or on behalf of the Commonwealth. They are intended to help ensure the continued validity of the exercise of powers, functions and duties under such agreements following machinery of government changes.

The amendments also provide a broader savings provision for the validity of acts done by any type of authority (not just Ministers) under an agreement as well as in the exercise or performance of powers, functions and duties under legislation. This would ensure, for example, that an act is not invalid just because it was performed without authority only because of a reasonable misunderstanding about administrative responsibility following a machinery of government change.

All of the amendments to the Acts Interpretation Act made by Schedule 2 to the Bill will automatically apply to the interpretation of legislative instruments and notifiable instruments (see section 13 of the Legislation Act) and other instruments (see section 46 of the Acts Interpretation Act). They will apply to these instruments in the same way as they are expressed to apply to Acts.

PART 1 - ACTS INTERPRETATION ACT 1901

Item 1 - Section 1A

Item 1 revises the simplified outline for the Acts Interpretation Act to reflect the amendments in Schedule 2 to the Bill.

Item 2 - Section 2B

Item 2 amends section 2B of the Acts Interpretation Act which provides a list of definitions that apply across all Commonwealth legislation, to insert a definition of ‘Administrative Arrangements Order’. This term is used across the Commonwealth to refer to a type of instrument made by the Governor-General that sets out the matters dealt with by Departments of State of the Commonwealth, and legislation administered by Ministers for those Departments. It is appropriate that such a commonly known term be included in the Acts Interpretation Act to be applied generally across all Commonwealth legislation to enable the term to be used consistently and with greater clarity.

The term includes an instrument that amends a primary Administrative Arrangements Order or revokes and substitutes a primary Administrative Arrangements Order.

Item 3 - Sections 19, 19A, 19B, 19BA, 19BAA, 19BB, 19BC, 19BD, 19C and 20

Item 3 repeals sections 19, 19A, 19B, 19BA, 19BAA, 19BB, 19BC, 19BD, 19C and 20 of Part 5 of the Acts Interpretation Act and inserts new sections 19, 19A, 19B, 19C, 19D and 20.  Provisions in Part 5 set out rules for general interpretation across Commonwealth legislation.

Existing sections 19 and 19A will be replaced by new section 19.

Existing section 19 provides that it is possible for a Minister to authorise another Minister (whether in the same portfolio or not) to perform or exercise statutory functions or powers conferred on the authorising Minister by legislation which they do not administer.

Existing section 19A provides rules for interpreting references to Ministers and Departments in legislation. The current approach to drafting Commonwealth laws is to refer in general terms to Ministers, Departments and Secretaries without mentioning the particular current title of a Minister or the current name of a portfolio, in terms such as “the Minister responsible for administering this Act [or the XYZ Act]”. The particular Minister (or Department or Secretary etc.) referred to at any particular time can then be determined by using the rules in existing section 19A, in combination with the Administrative Arrangements Order and the Ministry List. The Ministry List is a list of Ministers and their portfolios. It is not part of the Administrative Arrangements Order.

However, the Commonwealth statute book still retains a significant number of references to specific Ministers, Departments and Secretaries, and to specifically named agencies and offices. These references often become out-of-date following machinery of government changes.

The rules in existing section 19A apply so that both a general reference to ‘the Minister’ and a reference to a particular Minister (including where there is no longer such a Minister) means the Minister administering the provision under the Administrative Arrangements Order, or any one of the Ministers administering the provision if there is more than one (subsection 19A(1)). If different Ministers administer the provision in respect of different matters, the reference is to the Minister or any one of the Ministers who administer the provision in respect of the relevant matter.

Similarly, where legislation refers to ‘the Department’ or a particular Department (including a Department that no longer exists), the reference to the Department is taken to be a reference to the administering Department (existing subsection 19A(3)).

New section 19 - References to Ministers in Acts

New section 19 provides rules for interpreting references to a Minister throughout Commonwealth legislation. This provision replaces and expands existing subsections 19A(1) and (2) of the Acts Interpretation Act to provide greater application of rules for interpreting references to Ministers.

If a provision of an Act refers to a Minister, the table in new subsection 19(1) applies so as to determine which Minister the provision refers to in relation to a particular matter on a particular day.

Item 1 of the table :

1

refers to a Minister by using the expression “the Minister”, without identifying the Minister

the Minister, or any of the Ministers, administering the provision on the relevant day, in relation to the relevant matter.

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order. For example, a reference to ‘the Minister’ in the Agricultural and Veterinary Chemicals Act 1994 would be read as the Minister for Agriculture based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

Item 2 of the table :

2

refers to a Minister by reference to the fact that the Minister administers any of the following laws:

(a) the Act, or that provision or another provision of the Act;

(b) another Act, or a provision of another Act

the Minister, or any of the Ministers, administering that law on the relevant day, in relation to the relevant matter.

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order. For example, a reference to the ‘Minister responsible for the Agricultural and Veterinary Chemicals Act 1994’ would be read as the Minister for Agriculture based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

 

 

Item 3 of the table :

3

refers to a Minister by title (for example, “the Attorney-General” or “the Minister for Industry”), even if that title no longer exists

(a) if, at the time the provision commenced, or the reference to the Minister was inserted, the Minister referred to by title administered the provision—the Minister, or any of the Ministers, identified by item 1; or

(b) if paragraph (a) does not apply—the Minister currently identified by the title, or by a substituted reference order under section @19B; or

(c) in any case—any other Minister administering the Department of State of the Commonwealth that deals with the matters for which the Minister mentioned in paragraph (a) or (b) (as the case may be) is responsible on the relevant day.

The type of references in paragraph (a) would also be determined by reference to the Administrative Arrangements Order. For example, if the Industry Research and Development Act 1986 included a reference to the Minister for Industry, Science and Research at the time the legislation commenced, and that Minister administered the Act at that time, the reference would be read as the Minister for Industry based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

The type of reference in paragraph (b) would be determined by reference to the Administrative Arrangements Order or a substituted reference order under section 19B. For example, if at the time the Industry Research and Development Act commenced, it included a reference to the Minister for Agriculture and Veterinary Science, and that Minister did not administer the Act at that time, and that title no longer exists, the reference would need to be determined by a substituted reference order.

The type of reference in paragraph (c) would be determined by reference to the Administrative Arrangements Order in conjunction with the Ministry List. For example, if a reference is determined to mean the Minister for Health, the reference can be read as the Minister for Sport or the Assistant Minister for Health. These other Ministers also have administrative responsibility for the matters for which the Minister for Health has responsibility, based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

 

 

 

Item 4 of the table :

4

refers to a Minister by describing a matter for which the Minister is responsible (for example, “the Minister responsible for the environment”)

the Minister, or any of the Ministers, administering the Department of State of the Commonwealth that deals with the relevant matter on the relevant day.

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order. For example, a reference to the ‘Minister responsible for the environment’ would be taken to be the Minister for the Environment. The Department of the Environment deals with matters including ‘environment protection and conservation of biodiversity’, ‘environmental information and research’, ‘urban environment’ as well as other matters relating to environmental issues. The Minister for the Environment administers legislation allocated to that Department based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

Subsection 19(2) enables both earlier and the current Administrative Arrangements Order and substituted reference orders to be used to work out which Minister is indicated by the rules in the table in subsection 19(1). 

Importantly, this provision would also implicitly allow reference to other instruments, such as the Ministry List (both earlier and current Lists), which are relevant to determining the correct Minister.

Earlier instruments that are no longer in force may be needed to help track the transfer of administrative responsibility between Ministers over the period of time since the reference was inserted into the particular Act. 

Portfolios may have more than one minister responsible for a Department or for a particular matter that falls within the responsibility of a Department. A senior Minister may be responsible for a Department along with one or more junior Ministers. In these circumstances, any one of the responsible Ministers is able to exercise powers or functions allocated to the particular portfolio.

Subsection 19(3) removes doubt that if, because of this section, a provision requires anything to be done by or in relation to any one of two or more Ministers, the provision does not require it to be done in a particular case by or in relation to more than one of those Ministers.

Subsection 19(4) reproduces the effect of existing section 19 of the Acts Interpretation Act.  It means that a Minister can authorise another Minister (whether in the same portfolio or not) to perform or exercise functions or powers conferred on them by legislation.

New section 19A - References to Departments in Acts

New section 19A provides rules for interpreting references to a Department throughout Commonwealth legislation. This provision replaces and expands existing subsection 19A(3) of the Acts Interpretation Act to provide greater application of rules for interpreting references to Departments.

If a provision of an Act refers to a Department, the table in new subsection 19A(1) applies so as to determine which Department the provision refers to in relation to a particular matter on a particular day.

Item 1 of the table :

1

refers to a Department by using the expression “the Department”, without identifying the Department

is the Department of State of the Commonwealth that is administered by the Minister or Ministers administering that provision in relation to the relevant matter, and that deals with that matter.

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order.  For example, a reference to ‘the Department’ in the Agricultural and Veterinary Chemicals Act 1994 would be read as the Department of Agriculture. This is because the Minister for Agriculture administers the Agricultural and Veterinary Chemicals Act 1994 based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013, and has responsibility for the Department of Agriculture.

Item 2 of the table:

2

refers to a Department by title (for example, “the Attorney-General’s Department” or “the Department of Industry”), even if that title no longer exists

(a) if, at the time the provision commenced, or the reference to the Department was inserted, the Department referred to by title was administered by the Minister or Ministers administering that provision in relation to the relevant matter—the Department identified by item 1; or

(b) if paragraph (a) does not apply—the Department of State of the Commonwealth identified by the title, or by a substituted reference order under section @19B; or

(c) in any case—any other Department of State of the Commonwealth that deals with the matters for which the Department mentioned in paragraph (a) or (b) (as the case may be) is responsible on the relevant day.

The type of references in paragraph (a) would also be determined by reference to the Administrative Arrangements Order. For example, if at the time the Industry Research and Development Act 1986 commenced, it included a reference to the Department of Industry, Science and Research and that Department was administered by the Minister who administered that legislation at that time (the Minister for Industry and Science), the reference would be read as the Department of Industry based on the Administrative Arrangements Order made on 12 December 2013 and the Ministry List of 18 September 2013.

The type of reference in paragraph (b) would be determined by reference to the Administrative Arrangements Order or a substituted reference order under section 19B. For example, if at the time the Industry Research and Development Act 1986 commenced, it included a reference to the Department of Agriculture and Veterinary Science, and that Department was administered by the Minister for Agriculture and Veterinary Affairs who did not administer that particular legislation, and that title no longer exists, the reference would need to be determined by a substituted reference order. Some references will not be able to be identified as clearly, and substituted reference orders may need to be read alongside the legislation to determine the correct reference.

The type of reference in paragraph (c) would be determined by reference to the Administrative Arrangements Order. For example, if an Act relates to a particular matter, ‘water policy’, and that matter is dealt with by two Departments (the Department of the Environment and the Department of Agriculture), based on the Administrative Arrangements Order, then a reference to the Department of the Environment can be read as the Department of Agriculture. 

Item 3 of the table:

3

refers to a Department by describing a matter for which the Department is responsible (for example, “the Department responsible for the Environment”)

the Department of State of the Commonwealth that deals with the relevant matter on the relevant day.

Generally, this type of reference would be determined by reference to the Administrative Arrangements Order. For example, a reference to the ‘Department responsible for the environment’ would be taken to be the Department of the Environment. The Department of the Environment deals with matters including ‘environment protection and conservation of biodiversity’, ‘environmental information and research’, ‘urban environment’ as well as other matters relating to environmental issues based on the Administrative Arrangements Order made on 12 December 2013.

Subsection 19A(2) enables both earlier and the current Administrative Arrangements Order and substituted reference orders to be used to work out which Department is indicated by the rules in the table in subsection 19A(1). 

Importantly, this provision would also implicitly allow reference to other relevant instruments such as the Ministry List (both earlier and current Lists)

Earlier instruments that are no longer in force may be needed to help track the transfer of administrative responsibility between Departments over the period of time since the reference was inserted into the particular Act. 

An example is provided after the table in subsection 19A(1). Where a provision of an Act refers to “the Secretary of the Department”, item 1 would be used to determine that the reference is to the Secretary of the Department administered by the Minister who administers that provision in relation to the relevant matter, and that deals with that matter, as worked out by considering the Administrative Arrangements Order, a substituted reference order made under section 19B, or another instrument. 

This example makes clear that the meaning of any reference to a Secretary can be determined using the table in subsection 19A(1).

New section 19B - Machinery of government-substituted reference orders

New section 19B replaces current sections 19B, 19BA, 19BAA, 19BB and 19BC of the Acts Interpretation Act. It allows for substituted reference orders to be made to assist in the interpretation of references to Ministers, Departments, Agencies and Offices. This has broader application than existing provisions in the Acts Interpretation Act which only allow for substituted reference orders to be made to assist in the interpretation of Ministers, Departments and Secretaries.

In circumstances where existing section 19A may not have the effect of allowing a legislative reference to a specified Minister or specified Department to be determined by reference to the Administrative Arrangements Order, the Governor-General may make an order under existing sections 19B or 19BA to alter specific references in Commonwealth legislation. Substituted reference orders enable the reference to the Minister or Department in legislation to be read as a reference to the Minister/s or Department/s specified in the order, avoiding the need to amend the legislation.

Existing section 19B provides that an Order can be made to: alter a reference to a particular Minister if there is no longer any such Minister; alter a reference to a particular Department if that Department has been abolished or the name of the Department has been changed; or alter a reference to a particular Secretary of a Department if that office of Secretary has been abolished or the name of that office has been changed.

Existing section 19BA of the Acts Interpretation Act provides an additional power for the Governor-General to alter references in legislation to specific Ministers, Departments or Secretaries where they are inconsistent with changed administrative arrangements. In some cases the name of a Minister, Department or Secretary will stay the same but a specific reference in legislation will nevertheless need to be changed because the administration of that provision has been changed by the Administrative Arrangements Order.

A substituted reference order under existing section 19B or 19BA may be made with retrospective effect.

Existing section 19BAA has the effect that a substituted reference order cannot be made under existing sections 19B and 19BA in circumstances where a Department is abolished and a Department with the same name is established. This is what occurs following the making of a new Administrative Arrangements Order following an election. The intention is to enable continuity in relation to references to Departments where there has been no substantive change. A substituted reference order under existing section 19BA order could still be made to update the reference where there is a change in the matters dealt with by the Department.

Existing section 19BB allows orders made under existing sections 19B and 19BA to be revoked by the Governor-General in whole or in part.

Existing section 19BC requires the Minister to publish a copy of the order made by the Governor-General under existing sections 19B, 19BA or 19BB. This requirement for gazettal was overtaken by the operation of subsection 56(1) of the Legislative Instruments Act, so that publication on the Federal Register of Legislative Instruments would satisfy the requirement for gazettal. This reflected the move away from publishing Commonwealth notices in the Gazette to publishing on the Federal Register of Legislative Instruments which is intended to be the central repository of Commonwealth legislative instruments.

New section 19B allows for substituted reference orders to be made to alter references to specific Ministers, Departments, Agencies and Offices in Commonwealth legislation.

Following the 2012 election, significant machinery of government changes were made, including the abolition of a government agency (AusAid). The functions of AusAid were transferred to the Department of Foreign Affairs and Trade. Numerous pieces of legislation included references to AusAid and the Director-General of AusAid, including references that provided for the exercise of particular powers or functions by that agency or position.

Due to the scope of existing sections 19B and 19BA, substituted reference orders were not able to be made to address these out-of-date references to ensure powers and functions could continue to be exercised immediately following the administrative changes. 

In this instance, legislative amendments were required to ensure that the affected powers and functions could be exercised validly.  

By contrast, a substituted reference order would have been able to be made by the Governor-General far more quickly (and with retrospective effect if necessary), to facilitate the continued exercise of powers and functions from the time of the administrative changes.

New subsection 19B(1) provides that substituted reference orders can be made in relation to references to an authority, as defined in subsection (7), and any of the following happens:

(i)                  the authority is abolished

(ii)                the name or title of the authority is changed

(iii)              there is a change in the matters dealt with by the authority because of the effect of an Administrative Arrangements Order

(iv)              the reference to the authority becomes no longer appropriate for any other reason.

 

Paragraph (iv) has been drafted broadly to provide flexibility to enable substituted reference orders to be made in circumstances that are not necessarily envisaged at this time. This enables a substitution of one type of authority to another type of authority: for example, references to the Department of Foreign Affairs and Trade could be substituted for existing references to AusAid. This would only be done to reflect the changes to administrative arrangements, for example, following a new administrative Arrangements Order.  The purpose of the substituted reference orders is not to transfer powers or functions between authorities, but to enable legislation to be read correctly based on the changed administrative arrangements.

New subsection 19B(2) provides the power for the Governor-General to make a substituted reference order with the effect that a reference to an authority or authorities is to be read in place of a reference to an authority in a provision. A substituted reference order may be made to apply across the statute book (paragraph (a)) or to a particular provision or piece of legislation as specified in the order (paragraph (b)).

In some instances, the changes in administrative arrangements may require a particular reference to be substituted by another reference. For example, references to the Minister for Finance and Deregulation may be substituted for the Minister for Finance in every reference across the statute book when the administrative change is a change in name only, not a change in any responsibility.

In other instances, the changes in administrative arrangements may require a particular reference across the statute book to be substituted for a different reference in different legislation. For example, references to the Minister for Health and Ageing may require a particular substitution for references relating to health matters, for example, to be read as the Minister for Health, and a different substitution for references relating to ageing matters, for example, to be read as the Minister for Social Services.

The note to new subsection 19B(2) makes clear that subsection 33(3) of the Acts Interpretation Act has application so that a substituted reference order may be amended or revoked in the same way it is made (by an order made by the Governor-General). This enables substitutions to be amended or revoked in the future to ensure they are kept accurate and reflect changes to administrative arrangements over time.

New subsection 19B(3) provides that substituted reference orders may be made to have retrospective effect. Substituted reference orders may not be able to be made immediately following machinery of government changes, but it may be important that they are made to have effect from that time to facilitate the continued exercise of powers and functions by authorities. Otherwise there may be a gap from the time of the administrative changes to the time the substituted reference order ordinarily commences (usually the day after registration on the Federal Register of Legislation - formerly the Federal Register of Legislative Instruments), and this may result in doubt about the valid exercise of powers and functions by an authority during that time.

A substituted reference order can operate on references to authorities that are already the subject of existing substituted reference orders.

New subsection 19B(5) provides that a substituted reference order is a legislative instrument. Substituted reference orders are not subject to section 42 (disallowance) nor Part 4 of Chapter 3 (sunsetting) of the Legislation Act. This reflects that these types of instruments are subject to existing exemptions from disallowance and sunsetting requirements in the Regulations. It is appropriate that substituted reference orders not be subject to disallowance on the basis these orders are technical and administrative instruments made by the Executive. It would not be appropriate for the Parliament to interfere with these instruments, similar to the making of Administrative Arrangements Orders. Substituted reference orders are likely to be amended or revoked from time to time to reflect changes in administrative arrangements. However, substituted reference orders may have application for a long period of time. It would not be appropriate for substituted reference orders to sunset, as this may lead to inadvertent gaps in authority for the legitimate exercise of powers and functions under particular legislation.

New subsection 19B(6) is intended to have the same effect as existing section 19BAA of the Acts Interpretation Act. A substituted reference order under new section 19B cannot be made on the basis that an authority has been abolished (or its name changed) but could be made on the basis there is a change in the matters dealt with by the authority or if it is otherwise appropriate. Where an authority is abolished but is immediately re-established with the same name and of the same type, it is effectively taken to have never have been abolished.

New subsection 19B(7) defines ‘authority’ for the purposes of making a substituted reference order under this section to mean: (a) a Minister, (b) a Department of State of the Commonwealth, (c) any other Agency within the meaning of the Public Service Act, and (d) an Office (including an APS employee’s office and any other appointment or position), or the holder of an office.

The note to this section clarifies that offices are offices in and for the Commonwealth as per section 21 of the Acts Interpretation Act, and includes the office of the Secretary of a Department of State. 

The definition provides broader coverage as to the type of substituted reference orders that are able to be made under this new provision. As outlined above, new section 19B enables substituted reference orders to be made for references to Ministers, Departments, Agencies and Offices, rather than being limited to Ministers, Departments and Secretaries (as per existing sections 19B and 19BA). 

New section 19C - Machinery of government—references to authorities in Commonwealth agreement

New section 19C replaces existing section 19C of the Acts Interpretation Act and is intended to provide certainty for interpreting references to various authorities in agreements following a machinery of government change.

Existing section 19C is intended to provide certainty for interpreting references in agreements following a machinery of government change. References to a former Minister or Department are to be read as the new Minister or Department with responsibility for the administration of matters to which the agreement relates. This would be determined by reference to the Administrative Arrangements Order. References to an officer or body of persons are to be read as the officer or body who is temporarily exercising the powers or performing the functions,  or the officer or body specified by a substituted reference order made by the Minister(s) who is administering the relevant portfolio.

New subsection 19C(1) will provide more simply for the continued effectiveness of references to a range of authorities in Commonwealth agreements (Ministers, Departments, Agencies, other offices or office-holders) despite machinery of government changes which may, for example, result in an authority referenced in an agreement being abolished or renamed. New subsections 19C(2) and (3) indicate how a particular reference in an agreement is to be read following an administrative change. It provides that a reference to a Minister, Department or other authority is to be read as the Minister, Department or other authority as determined by reference to an instrument in subsection (3), that is, to an Administrative Arrangements Order or a substituted reference order made under section 19B.

A reference to an authority (other than a Minister or Department) can also be determined by an instrument made under subsection (4). New subsection (4) provides that a Minister administering the Department that deals with the relevant matter may, by notifiable instrument, make a determination for the purposes of determining the new authority for the purposes of an agreement. A determination may be made under subsection (4) to provide legal certainty for particular agreements. This provision is similar in effect to the current subsection 19C(c) which allows a Minister to specify an officer or body, for the purposes of reading a reference to an officer or body in an agreement.

New Subsection (5) removes doubt that if, because of this section, a provision of an agreement requires anything to be done by or in relation to any one of two or more ministers, the provision does not require it to be done in a particular case by or in relation to more than one of those Ministers.

Subsection (7) defines ‘authority’ for the purposes of this section to mean: (a) a Minister, (b) a Department of State of the Commonwealth, (c) any other Agency within the meaning of the Public Service Act, and (d) an office (including an APS employee’s office and any other appointment or position), or the holder of an office. This covers a similar range of entities to those covered by existing section 19C, which covers Ministers, Departments, officers and bodies of persons.

New section 19D - Machinery of government changes—saving the validity of acts done by authorities.

New section 19D is intended to replace existing section 19BD of the Acts Interpretation Act which provides a savings provision for acts done by Ministers without authority, and provide greater protection for the valid exercise of powers and functions following machinery of government changes.

Existing section 19BD is intended to cover situations where a function, duty or power is conferred on one Minister by an Act, and a second Minister purports to perform the function or duty or exercise the power. This might arise where there is a misunderstanding about the allocation of responsibilities under the Administrative Arrangements Order, or in substituted reference orders made under existing sections 19B and 19BA.

The provision does not validate acts done by the Minister purporting to exercise or perform a power, function or duty of another Minister for all purposes (that is, the Act is not invalid merely for that reason, but the act could be invalid for a range of other reasons). Further, it does not authorise or allow Ministers to exercise or perform powers, functions or duties that do not fall within their portfolio responsibilities.

New section 19D operates more broadly than existing section 19BD by saving the validity of acts done by authorities (rather than just  Ministers) and in relation to the exercise of a power, function or duty provided under any form of Commonwealth law or agreement (rather than only those imposed by an Act). The savings provision will apply where there is a reasonable but mistaken belief about the conferral of powers, functions or duties under machinery of government changes.

New subsection (1) provides that, in the event that an authority purports to exercise or perform a power, function or duty of another authority, the action is not invalid merely because the authority does not have responsibility following a machinery of government change. It is foreseeable that, following machinery of government changes, there is a misunderstanding about the allocation of responsibilities. In this event, it is not considered appropriate that a mere failure to comply with internal government administrative arrangements should result in the invalidity of an action taken by an authority.

New subsection (2) provides that this provision only applies if the authority acted on a reasonable, but mistaken, belief about the occurrence, timing or nature of the machinery of government change.  The provision will not apply in other circumstances, for example, if a Minister or official knowingly exercises a power without authority.

A machinery of government change for the purposes of this section is constituted under subsection (3) by the abolition of an authority, a change of name or the title of an authority, a change in the matters dealt with by the authority (as reflected by an Administrative Arrangements Order) or any other circumstance in which the authority is no longer legally responsible for the power or function purportedly exercised or performed.

New subsection (4) provides that this savings provision applies where the authority for the exercise of a power, function or duty is provided in an Act, legislative instrument, a Commonwealth agreement, or any other authorisation under a Commonwealth Law.

New subsection (5) defines ‘authority’ for the purposes of this section to mean: (a) a Minister, (b) a Department of State of the Commonwealth, (c) any other Agency within the meaning of the Public Service Act, and (d) an office (including an APS employee’s office and any other appointment or position), or the holder of an office.

The note clarifies that offices are offices in and for the Commonwealth as per section 21 of the Acts Interpretation Act, and includes the office of the Secretary of a Department of State. 

This provision does not validate acts done by the authority purporting to exercise or perform a power, function or duty of another authority for all purposes (that is, the act could be invalid for a range of other reasons). Further, it does not authorise or allow an authority to exercise or perform a power, function or duty that does not fall within their area of responsibility. For example, it does not overcome the need for an Administrative Arrangements Order to set out the internal government arrangements, which would then be picked up by new sections 19 and 19A of the Acts Interpretation Act. These internal government administrative arrangements will still need to be put into place, and will operate to allocate responsibilities. The provision is intended to operate consistently with the convention of collective responsibility, which is part of the Cabinet system of Government

New section 20 - References to holders of appointment, offices and positions in Acts and Commonwealth Agreements

Existing section 20 provides that when a provision of an Act refers in general terms to any person holding or occupying an office or position, the reference is taken to include all persons who hold or occupy the office or perform the duties of the office.

New section 20 amends existing section 20 of the Acts Interpretation Act to extend its scope to cover references to officers in Commonwealth agreements, to ensure that the reference to an office or position also includes a reference to an appointment, and generally to clarify the expression of the provision. This has broader application than existing section 20 which is limited to references in Acts , and references to a particular office or position .

PART 2 - APPLICATION AND TRANSITIONAL

Item 4 - Application of amendments - Schedule 2

This item provides that the amendments to the Acts Interpretation Act in Part 1 of Schedule 2, apply in relation to an Act or instrument made before, on, or after the commencement of this Schedule, subject to this Part. This ensures the wide application of these amendments across Commonwealth laws.

Item 5 - Transitional - substituted reference orders

This item ensures that substituted reference orders made under existing sections 19B and 19BA of the Acts Interpretation Act that are in force immediately before the commencement of the amendments in this Schedule, continue to be in force after the amendments in this Schedule commence. The substituted reference orders will be taken to have been made under new section 19B of the Acts Interpretation Act. This ensures that a new substituted reference order does not need to be made in order that substitutions to particular references across Commonwealth laws continue to have effect.

Item 6 - Application of amendments and saving references to authorities in Commonwealth Agreements.

This item provides an application provision in relation to the repeal of section 19C of the Acts Interpretation Act and its substitution by new section 19C by this Schedule. New section 19C deals with references to authorities in Commonwealth agreements.

Subitem (1) provides that new section 19C will have application to agreements entered into by or on behalf of the Commonwealth on or after the commencement of this Schedule.

Subitem (2) provides that despite the repeal of section 19C by this Act, that section continues to apply in relation to an agreement entered into by or on behalf of the Commonwealth before the commencement of this Schedule. It also provides that an order under subparagraph 19C(1)(c)(ii) of the Acts Interpretation Act that was in force in relation to an agreement, continues to apply to that agreement.

Item 7 - Application new section 19D

Item 7 provides that new section 19D will apply to the purported exercise of powers, functions or duties which occurs on or after the commencement of this Schedule. Where this is a purported exercise of powers, functions or duties under an agreement, the savings provision will apply if the agreement was entered on or after the commencement of this Schedule.

 

Schedule 3 - Updating references to instruments

GENERAL OUTLINE

Schedule 3 amends various Commonwealth Acts to update references to instruments.

In particular, the Bill amends Commonwealth Acts to:

·          make clear within enabling legislation that certain instruments are legislative or notifiable instruments for the purposes of the new Legislation Act, and

·          update references to repealed provisions of the Acts Interpretation Act (Part XII and sections 46A and 48) and the Statutory Rules Publication Act to relevant provisions in the new Legislation Act.

 

These amendments, and amendments in Part 5 of Schedule 1 to the Bill, enable the repeal of the Legislative Instruments (Transitional Provisions and Consequential Provisions) Act 2003 in item 1 of this Schedule.

Former section 46A of the Acts Interpretation Act provided for an instrument to be made that was disallowable under the process in former section 48 of the Acts Interpretation Act. The Legislative Instruments (Transitional Provisions and Consequential Provisions) Act deemed instruments made under section 46A to be legislative instruments for the purposes of the Legislative Instruments Act. The amendments in Schedule 3 amend specific provisions of Acts to provide that instruments are legislative instruments, and remove redundant references to repealed provisions of the Acts Interpretation Act. Paragraph 6(d) of the Legislative Instruments Act is also removed by Schedule 1 to the Bill as it provides that instruments that are disallowable under section 46A or Part XII of the Acts Interpretation Act are legislative instruments. These amendments do not change the effect of the law.

Subsection 48(2) of the Acts Interpretation Act was a similar provision regarding retrospective operation to the subsection 12(2) of the Legislative Instruments Act. The Legislative Instruments (Transitional Provisions and Consequential Provisions) Act provided that provisions in enabling legislation which displace the rule in subsection 48(2) of the Acts Interpretation Act are construed as displacing the rule in subsection 12(2) of the Legislative Instruments Act (which invalidates instruments that have a detrimental retrospective effect). The amendments in this Schedule amend the enabling provisions that refer to subsection 48(2) of the Acts Interpretation Act to instead refer to subsection 12(2) of the Legislation Act. These amendments make no substantive change.

Schedule 3 removes references in other Acts to the Statutory Rules Publication Act to reflect the repeal of that Act by the Legislative Instruments (Transitional Provisions and Consequential Provisions) Act.

Amendments are also made in this Schedule to some provisions of Acts to expressly confer a power to make a legislative instrument, where the power is currently conferred impliedly. This does not change the effect of the relevant Act, but removes any doubt about whether such provisions are effective in conferring power (following the decision in Hong Kong Bank v ASC (1992) 109 ALR 70).

The amendments in this Schedule also substitute some requirements for publication by gazettal with the requirement for registration on the new Register. This substitution extends to certain non-legislative instruments that will be required to be registered as notifiable instruments to enhance the accessibility of these instruments.

Amendments are also made to remove any related redundant provisions. For example, provisions requiring publication on the internet. These provisions are no longer required because this requirement is met through publication on the new Register.

PART 1 - REPEAL OF ACT

Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003

Item 1 - The whole of the Act

Item 1 repeals the Legislative Instruments (Transitional Provisions and Consequential Provisions) Act. That Act included:

·          amendments and repeals consequential to the enactment of the Legislative Instruments Act

·          provision for regulations to be made prescribing transitional matters

·          transitional provisions providing for references to the Statutory Rules Publication Act and the Acts Interpretation Act disallowance regime (sections 46A and 48, and Part XII) to continue to operate as references to the corresponding regime in the Legislative Instruments Act, and

·          transitional provisions relating to other instruments that were deemed to be instruments under section 46B of the Acts Interpretation Act.

 

The amendments and repeals consequential to the enactment of the Legislative Instruments Act have all commenced and are therefore spent and can be repealed.

The transitional provision in the Legislative Instruments (Transitional Provisions and Consequential Amendments) Regulations 2005 ceased to have effect at the end of 31 December 2005 and the regulation was repealed by the Attorney-General’s (Spent and Redundant Instruments) Repeal Regulation 2013.

PART 2 - AMENDMENT OF ACTS

Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978

Item 2 - Subsections 10(5), (5A), (6) and (7)

Item 2 repeals subsection 10(5), (5A), (6) and (7) of the Aboriginal and Torres Strait Islanders (Queensland Reserves and Communities Self-management) Act 1978 and inserts a new subsection (5) to provide that for the purposes of the Legislation Act, a by-law made by the Council and approved by the Minister is a legislative instrument made by the Minister on the day the by-law is approved. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision. The note clarifies that the Minister will be taken to be the rule-maker for the purposes of the Legislation Act.

Aboriginal Land Grant (Jervis Bay Territory) Act 1986

Item 3 - Subsection 52A(11), (12), (13), and (14)

Item 3 repeals subsection 52A(11), (12), (13), and (14) of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 and inserts a new subsection (11) to provide that for the purposes of the Legislation Act, a by-law made by the Council and received by the Minister is a legislative instrument made by the Minister on the day the by-law is received. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision. The note clarifies that the Minister will be taken to be the rule-maker for the purposes of the Legislation Act.

Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987

Item 4 - Subsection 15(6), (7), (8), and (9)

Item 4 repeals subsections 15(6), (7), (8) and (9) of the Aboriginal Land (Lake Condah and Framlingham Forest) Act 1987 and inserts a new subsection (6) to provide that for the purposes of the Legislation Act, a by-law made by the Kerrup-Jmara Elders Aboriginal Corporation and received by the Minister is a legislative instrument made by the Minister on the day the by-law is received. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision. The note clarifies that the Minister will be taken to be the rule-maker for the purposes of the Legislation Act.

Item 5 - Subsections 23(6), (7), (8) and (9)

Item 5 repeals subsections 23(6), (7), (8) and (9) of the Aboriginal Land (Lake Condah and Framlingham Forest) Act and inserts a new subsection (6) to provide that for the purposes of the Legislation Act, a by-law made by the Kirrae Whurrong Aboriginal Corporation and received by the Minister is a legislative instrument made by the Minister on the day the by-law is received. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision. The note clarifies that the Minister will be taken to be the rule-maker for the purposes of the Legislation Act.

Australian Broadcasting Corporation Act 1983

Item 6 - Subsection 27(5)

Item 6 amends subsection 27(5) of the Australian Broadcasting Corporation Act 1983 to replace ‘by notice in the Gazette ’ with ‘under subsection (6)’. This amendment, read with the amendment in item 7, clarifies the status of an instrument (a specification) made under this section.

The requirement to gazette the instrument is redundant because the instrument is already a legislative instrument and is required to be registered. The gazettal requirement would in any case be satisfied by registration on the new Register (see new section 56(1) of the Legislation Act, as amended by Schedule 1 of the Bill).

Item 7 - Subsection 27(6)

Item 7 repeals subsection 27(6) of the Australian Broadcasting Corporation Act which refers to section 46A of the Acts Interpretation Act, and inserts a new subsection (6) to expressly provide that the Minister may, by legislative instrument, specify a service for the purpose of subsection (5). This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. The user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989

Item 8 - Paragraphs 45(1)(b) and (c)

Item 8 amends paragraphs 45(1)(b) and (c) of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act 1989 to replace ‘in writing’ with ‘under subsection (2)’. This amendment, read with the amendment in item 9, clarifies the status of an instrument (a determination) made under section 45.

Item 9 - Subsection 45(2)

Item 9 repeals subsection 45(2) of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act and inserts a new subsection 45(2).

Subsection 45(2) provides that a determination made for the purposes of paragraphs (1)(b) or (c) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act .

New subsection 45(2) provides that for the purposes of paragraph (1)(b) or (c), the Minister may, by notifiable instrument, determine remuneration or allowances to be paid to the holder of an office. This amendment has the effect of expressly conferring power on the Minister to make an instrument. These determinations were previously treated as legislative instruments for the purposes of ensuring they were published on the Federal Register of Legislative Instruments, ensuring a high level of accessibility and transparency. However, these instruments are administrative in nature, and their more accurate classification as notifiable instruments will continue to ensure that they can be made publically available by registration on the new Register.

Item 10 - Subsection 48(2)

Item 10 repeals subsection 48(2) of the Australian Institute of Aboriginal and Torres Strait Islander Studies Act and inserts a new subsection 48(2).

Subsection 48(2) provides that Rules made under this section are not statutory rules within the meaning of the Statutory Rules Publication Act. This provision is redundant as the Statutory Rules Publication Act has been repealed.

New subsection 48(2) provides that instruments under this section are not legislative instruments. This amendment does not change the effect of the provision.

 

Australian Radiation Protection and Nuclear Safety Act 1998

Item 11 - Subsection 7(2)

Item 11 amends subsection 7(2) of the Australian Radiation Protection and Nuclear Safety Act 1998 to replace ‘declare by notice in writing’ with ‘by legislative instrument, declare’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 12 - Subsection 7(4)

Item 12 repeals subsection 7(4) of the Australian Radiation Protection and Nuclear Safety Act. Subsection 7(4) provides that a declaration under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act . This reference to the Acts Interpretation Act is redundant following the amendment in item 11.

Item 13 - Subsection 8(2)

Item 13 amends subsection 8(2) of the Australian Radiation Protection and Nuclear Safety Act to replace ‘declare by notice in writing’ with ‘by legislative instrument, declare’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 14 - Subsection 8(4)

Item 14 repeals subsection 8(4) of the Australian Radiation Protection and Nuclear Safety Act. Subsection 8(4) provides that a declaration under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act . This reference to the Acts Interpretation Act is redundant following the amendment in item 13.

Broadcasting Services Act 1992

Item 15 - Subsection 6(1) (paragraph (c) of the definition of broadcasting service )

Item 15 amends subsection 6(1) (paragraph (c) of the definition of broadcasting service ) of the Broadcasting Services Act 1992 to replace ‘by notice in the Gazette ’ with ‘under subsection (2)’. This amendment, read with the amendment in item 16, clarifies the status of an instrument (a determination) made under this section.

The requirement to gazette the instrument is redundant because the instrument is already a legislative instrument and is required to be registered. The gazettal requirement would in any case be satisfied by registration on the new Register (see new section 56(1) of the Legislation Act, as amended by Schedule 1 of the Bill).

Item 16 - Subsection 6(2)

Item 16 repeals subsection 6(2) of the Broadcasting Services Act and inserts a new subsection 6(2). Subsection 6(2) provides that a determination under paragraph (c) of the definition of ‘ broadcasting service in subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 6(2) provides that an instrument made under paragraph (c) of the definition of broadcasting service in subsection (1) is a legislative instrument. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 17 - Subsection 13(3)

Item 17 amends subsection 13(3) of the Broadcasting Services Act to replace ‘by notice in the Gazette ’ with ‘under subsection (4)’. This amendment, read with the amendment in item 18, clarifies the status of an instrument (a specification) made under this section.

The requirement to gazette the instrument is redundant because the instrument is already a legislative instrument and is required to be registered. The gazettal requirement would in any case be satisfied by registration on the new Register (see new section 56(1) of the Legislation Act, as amended by Schedule 1 of the Bill).

Item 18 - Subsection 13(4)

Item 18 repeals subsection 13(4) of the Broadcasting Services Act and inserts a new subsection 13(4). Subsection 13(4) provides that a specification under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 13(4) provides that the Minister may, by legislative instrument, specify services for the purposes of subsection (3). This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. A user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision

Item 19 - Subsection 19(1)

Item 19 amends subsection 19(1) of the Broadcasting Services Act to replace ‘by notice in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument.

The requirement to gazette the instrument is redundant because the instrument is already a legislative instrument and is required to be registered. The gazettal requirement would in any case be satisfied by registration on the Register (see new section 56(1) of the Legislation Act, as amended by Schedule 1 of the Bill).

This amendment does not change the effect of the provision.

Item 20 - Section 20

Item 20 repeals section 20 of the Broadcasting Services Act. Section 20 provides that determinations and clarifications under section 19 are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 19.

 

 

Item 21 - Subsection 31(1)

Item 21 amends subsection 31(1) of the Broadcasting Services Act to replace ‘notify the ACMA in writing’ with ‘, by legislative instrument, notify the ACMA’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 22 - Section 32

Item 22 repeals section 32 of the Broadcasting Services Act. Section 32 provides that a notice under section 31 is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act This reference to the Acts Interpretation Act is redundant following the amendment in item 21.

Item 23 - Subsection 38B(14)

Item 23 amends subsection 38B(14) of the Broadcasting Services Act to replace ‘writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 24 - Subsection 38B(16)

Item 24 repeals subsection 38B(16) of the Broadcasting Services Act. Subsection 38B(16) provides that a determination under subsection (14) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 23.

Item 25 - Subsections 87A(6), (7) and (8)

Item 25 amends subsections 87A(6), (7) and (8) of the Broadcasting Services Act to replace  ‘written determination’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 26 - Subsection 87A(11)

Item 26 repeals subsection 87A(11) of the Broadcasting Services Act. Subsection 87A(11) provides that a determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 25.

Item 27 - Subsection 115(1)

Item 27 amends subsection 115(1) of the Broadcasting Services Act to replace ‘by notice published in the Gazette , specify’ with ‘give notice, by legislative instrument, specifying’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision except by removing the requirement to gazette the instrument. There is no need to provide for the gazettal of the instrument, since it is a legislative instrument and must in any case be made publically available by registration on the new Register.

Item 28 - Subsection 115(1A)

Item 28 amends subsection 115(1A) of the Broadcasting Services Act to replace ‘by notice published in the Gazette , amend’ with ‘give notice, by legislative instrument, amending’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision except by removing the requirement to gazette the instrument. There is no need to provide for the gazettal of the instrument, since it is a legislative instrument and must in any case be made publically available by registration on the new Register.

Item 29 - Subsection 115(1AA)

Item 29 amends subsection 115(1AA) of the Broadcasting Services Act to replace ‘publishes in the Gazette before that time a declaration’ with ‘, by legislative instrument registered under the Legislation Act 2003 before that time, declares’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision except by removing the requirement to gazette the instrument. There is no need to provide for the gazettal of the instrument, since it is a legislative instrument and must in any case be made publically available by registration on the new Register.

Item 30 - Subsection 115(1AB)

Item 30 amends subsection 115(1AB) of the Broadcasting Services Act to replace ‘publish’ with ‘make’. This subsection relates to the instrument making power in subsection 115(1AA). This amendment does not change the effect of the provision.

Item 31 - Subsection 115(1B)

Item 31 amends subsection 115(1B) of the Broadcasting Services Act to replace ‘publishes in the Gazette before that time a declaration’ with ‘by legislative instrument registered under the Legislation Act 2003 before that time, declares’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument.

The requirement to gazette the instrument is redundant because the instrument is already a legislative instrument and is required to be registered. The gazettal requirement would in any case be satisfied by registration on the new Register (see new section 56(1) of the Legislation Act , as amended by Schedule 1 of the Bill).

This amendment does not change the effect of the provision.

 

 

Item 32 - Subsection 115(2)

Item 32 amends subsection 115(2) of the Broadcasting Services Act to replace ‘by notice published in the Gazette , amend’ with ‘give notice, by legislative instrument, amending’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument.

The requirement to gazette the instrument is redundant because the instrument is already a legislative instrument and is required to be registered. The gazettal requirement would in any case be satisfied by registration on the new Register (see new section 56(1) of the Legislation Act, as amended by Schedule 1 of the Bill).

This amendment does not change the effect of the provision.

Item 33 - Subsection 115(3)

Item 33 repeals subsection 115(3) of the Broadcasting Services Act. Subsection 115(3) provides that notices and declarations under this section are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendments in items 27-32.

Item 34 - Section 117

Item 34 amends section 117 of the Broadcasting Services Act to replace ‘by notice published in the Gazette ’ with ‘by legislative instrument,’.

The requirement to gazette the instrument is redundant because the instrument is already a legislative instrument and is required to be registered. The gazettal requirement would in any case be satisfied by registration on the new Register (see new section 56(1) of the Legislation Act, as amended by Schedule 1 of the Bill).

This amendment does not change the effect of the provision.

Item 35 - Subsection 120(1)

Item 35 amends subsection 120(1) of the Broadcasting Services Act to replace ‘by notice published in the Gazette ’ with ‘by legislative instrument’. An instrument made under this provision is a notice by ACMA to vary a class licence. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument.

The requirement to gazette the instrument is redundant because the instrument is already a legislative instrument and is required to be registered. The gazettal requirement would in any case be satisfied by registration on the new Register (see new section 56(1) of the Legislation Act, as amended by Schedule 1 of the Bill).

This amendment does not change the effect of the provision.

Item 36 - Section 121

Item 36 repeals section 121 of the Broadcasting Services Act.  Section 121 provides that notices made under sections 117 and 120 are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in items 34 and 35.

Item 37 - Subsection 121FP(1)

Item 37 amends the Broadcasting Services Act to replace ‘formulate written’ with ‘, by legislative instrument, formulate’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 38 - Subsection 121FP(3)

Item 38 repeals subsection 121FP(3) of the Broadcasting Services Act. Subsection 121FP(3) provides that guidelines made under this section are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 37.

Item 39 - Section 146A

Item 39 amends section 146A of the Broadcasting Services Act to replace ‘make a disallowable instrument designating’ with ‘, by legislative instrument, designate’. This amendment updates the simplified outline to reflect changes made in items 40 to 44.

Item 40 - Subsections 146C(1) and (2)

Item 40 amends subsections 146C(1) and (2) of the Broadcasting Services Act to replace ‘by writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 41 - Subsection 146C(7)

Item 41 repeals subsection 146C(7) of the Broadcasting Services Act.  Subsection 146C(7) provides that a declaration made under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 40.

Item 42 - Subsections 146CA(1) and (2)

Item 42 amends subsections 146CA(1) and (2) of the Broadcasting Services Act to replace ‘by writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 43 - Subsection 146CA(5)

Item 43 repeals subsection 146CA(5) of the Broadcasting Services Act. Subsection 146CA(5) provides that a determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 42.

Item 44 - Subsection 146CA(6)

Item 44 repeals subsection 146CA(6) of the Broadcasting Services Act, but does not repeal the note. Subsection 146CA(6) provides that a copy of a determination under this section is to be published in the Gazette . This subsection is redundant following the amendment in item 42.

The requirement to gazette the instrument is redundant because the instrument is already a legislative instrument and is required to be registered. The gazettal requirement would in any case be satisfied by registration on the new Register (see new section 56(1) of the Legislation Act, as amended by Schedule 1 of the Bill).

This amendment does not change the effect of the provision.

Item 45 - Subsections 212B(1), (2), (3) and (4)

Item 45 amends subsections 212B(1), (2), (3) and (4) of the Broadcasting Services Act to replace ‘writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 46 - Subsection 212B(6)

Item 46 repeals subsection 212B(6) of the Broadcasting Services Act, but does not repeal the note. Subsection 212B(6) provides that a determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 45.

Item 47 - Subsection 3(3) and (4) of Schedule 6

Item 47 amends subsection 3(3) and (4) of Schedule 6 of the Broadcasting Services Act to replace ‘make a written’ with ‘, by legislative instrument, make a’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 48 - Subsection 3(6) of Schedule 6

Item 48 repeals subsection 3(6) of Schedule 6 of the Broadcasting Services Act. Subsection 3(6) of Schedule 6 provides that a determination under subsection (3) or (4) is to be an instrument of a legislative character. This reference is redundant following the amendment in item 47.

Item 49 - Subsection 3(7) of Schedule 6

Item 49 repeals subsection 3(7) of Schedule 6 of the Broadcasting Services Act. Subsection 3(7) of Schedule 6 provides that a determination under subsection (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 47.

 

Item 50 - Subsection 4(3) and (4) of Schedule 6

Item 50 amends subsection 4(3) and (4) of Schedule 6 of the Broadcasting Services Act to replace ‘make a written’ with ‘, by legislative instrument, make a’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 51 - Subsection 4(6) of Schedule 6

Item 51 repeals subsection 4(6) of Schedule 6 of the Broadcasting Services Act. Subsection 4(6) of Schedule 6 provides that a determination under subsection (3) or (4) is to be an instrument of a legislative character. This reference is redundant following the amendment in item 50.

Item 52 - Subsection 4(7) of Schedule 6

Item 52 repeals subsection 4(7) of Schedule 6 of the Broadcasting Services Act, but not including the note. Subsection 4(7) of Schedule 6 provides that a determination under subsection (3) or (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 50.

Item 53 - Subsection 13(4) and (5) of Schedule 6

Item 53 amends subsections 13(4) and (5) of Schedule 6 of the Broadcasting Services Act to replace ‘make a written’ with ‘, by legislative instrument, make a’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provisions.

Item 54 - Subsection 13(7) of Schedule 6

Item 54 repeals subsection 13(7) of Schedule 6 of the Broadcasting Services Act. Subsection 13(7) of Schedule 6 provides that a determination under subsection (4) or (5) is to be an instrument of a legislative character. This reference is redundant following the amendment in item 53.

Item 55 - Subsection 13(8) of Schedule 6

Item 55 repeals subsection 13(8) of Schedule 6 of the Broadcasting Services Act, but not including the note. Subsection 13(8) of Schedule 6 provides that a determination under subsection (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 53.

Item 56 - Subsections 15(4) and (5) of Schedule 6

Item 56 amends subsections 15(4) and (5) of Schedule 6 of the Broadcasting Services Act to replace ‘make a written’ with ‘, by legislative instrument, make a’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 57 - Subsection 15(7) of Schedule 6

Item 57 repeals subsection 15(7) of Schedule 6 of the Broadcasting Services Act. Subsection 15(7) of Schedule 6 provides that a determination under subsection (4) or (5) is to be an instrument of a legislative character. This reference is redundant following the amendment in item 56.

Item 58 - Subsection 15(8) of Schedule 6

Item 58 repeals subsection 15(8) of Schedule 6 of the Broadcasting Services Act, but not including the note. Subsection 15(8) of Schedule 6 provides that a determination under subsection (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 56.

Item 59 - Subsections 21(4) and (5) of Schedule 6

Item 59 amends subsections 21(4) and (5) of Schedule 6 of the Broadcasting Services Act to replace ‘make a written’ with ‘by legislative instrument, make a’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 60 - Subsection 21(7) of Schedule 6

Item 60 repeals subsection 21(7) of Schedule 6 of the Broadcasting Services Act. Subsection 21(7) of Schedule 6 provides that a determination under subsection (4) or (5) is to be an instrument of a legislative character. This reference is redundant following the amendment in item 59.

Item 61 - Subsection 21(8) of Schedule 6

Item 61 repeals subsection 21(8) of Schedule 6 of the Broadcasting Services Act, but not including the note. Subsection 21(8) of Schedule 6 provides that a determination under subsection (4) or (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 59.

Item 62 - Subsection 27(1) of Schedule 6

Item 62 amends subsection 27(1) of Schedule 6 of the Broadcasting Services Act to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 63 - Subsection 27(3) of Schedule 6

Item 63 repeals subsection 27(3) of Schedule 6 of the Broadcasting Services Act. Subsection 27(3) of Schedule 6 provides that an instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 62.

Item 64 - Subsection 31(1) of Schedule 6

Item 64 amends subsection 31(1) of Schedule 6 of the Broadcasting Services Act to replace ‘in writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 65 - Subsection 31(2) of Schedule 6

Item 65 amends subsection 31(2) of Schedule 6 of the Broadcasting Services Act to replace ‘notice in writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 66 - Subsection 31(3) of Schedule 6

Item 66 repeals subsection 31(3) of Schedule 6 of the Broadcasting Services Act. Subsection 31(3) of Schedule 6 provides that a standard determined under this subsection is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference is redundant following the amendments in items 64 and 65.

Commerce (Trade Descriptions) Act 1905

Item 67 - Subsection 5(5)

Item 67 amends subsection 5(5) of the Commerce (Trade Descriptions) Act 1905 to replace ‘disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Competition and Consumer Act 2010

Item 68 - Subsection 151BUAA(1)

Item 68 amends subsection 151BUAA(1) of the Competition and Consumer Act 2010 to replace ‘give written directions’ with ‘, by legislative instrument, give a direction’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 69 - Subsections 151BUAA(1B) and (1C)

Item 69 amends subsections 151BUAA(1B) and (1C) of the Competition and Consumer Act to replace ‘give a written direction’ with ‘, by legislative instrument, give a direction’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 70 - Subsection 151BUAA(4)

Item 70 repeals subsection 151BUAA(4) of the Competition and Consumer Act. Subsection 151BUAA(4) provides that a direction under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendments in items 68 and 69.

Item 71 - Subsections 151CMA(1), (2) and (3)

Item 71 amends subsections 151CMA(1), (2) and (3) to omit the word ‘written’. This amendment, read with the amendment in item 72, clarifies the status of an instrument (a determination) made under this section.

Item 72 - Subsection 151CMA(6)

Item 72 repeals subsection 151CMA(6) of the Competition and Consumer Act and inserts a new subsection 151CMA(6).

Subsection 151CMA(6) provides that a determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 151CMA(6) provides that a determination made by the Minister for the purposes of subsection (1), (2) or (3) is a legislative instrument. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision

Item 73 - Subsections 151CMB(1) and (2)

Item 73 amends subsections 151MB(1) and (2) of the Competition and Consumer Act to omit the word ‘written’. This amendment, read with the amendment in item 74, clarifies the status of an instrument (a determination) made under this section.

Item 74 - Subsection 151CMB(4)

Item 74 repeals subsection 151CMB(4) of the Competition and Consumer Act  and inserts a new subsection 151CMB(4).

Subsection 151CMB(4) provides that a determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 151CMB(4) provides that the Minister may by legislative instrument, make a determination for the purposes of subsection (1) or (2). This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. A user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision

 

 

Item 75 - Section 151CMC

Item 75 amends section 151CMC of the Competition and Consumer Act to replace ‘determination under’ with ‘determination made for the purposes of’. This amendment is consequential to items 72 and 74.

Customs Act 1901

Item 76 - Subsection 4A(2)

Item 76 repeals subsection 4A(2) of the Customs Act 1901 . Subsection 4A(2) provides that an instrument under subsection (1) after this section commences is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. Generally, this has the effect that the instruments under subsection (1) would be legislative instruments; however, in practice, some of these instruments qualify (and will continue to qualify) for exemptions under the Legislation Act , or regulations that will be made under that Act. As a result, the status of all instruments made under subsection (1) as legislative or non-legislative is not certain. Customs will continue its practice of registering all instruments that are legislative instruments on the new Register under that Act.

In addition to creating certainty about the status of the instruments under subsection (1), the amendment removes a redundant reference to the Acts Interpretation Act which has been repealed. This amendment does not change the effect of the Act in its practical operation.

Item 77 - Section 269SL

Item 77 repeals section 269SL of the Customs Act. This provision is redundant as it includes a reference to the Statutory Rules Publication Act which has been repealed.

Item 78 - Subsection 269TA(1)

Item 78 amends subsection 269TA(1) of the Customs Act to replace ‘give to the Commissioner such written directions’ with ‘, by legislative instrument, give to the Commissioner such directions’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 79 - Subsections 269TA(3) and (4)

Item 79 repeals subsections 269TA(3) and (4) of the Customs Act. Subsection 269TA(3) provides for gazettal and tabling requirements for an instrument and subsection 269TA(4) provides that an instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. These subsections are redundant following the amendment in item 78.

Defence (Visiting Forces) Act 1963

Item 80 - Section 29

Item 80 repeals section 29 of the Defence (Visiting Forces) Act 1963. This provision is redundant as it includes a reference to the Statutory Rules Publication Act which has been repealed.

Environment Protection and Biodiversity Conservation Act 1999

Item 81 - Subsection 40(4)

Item 81 amends subsection 40(4) of the Environment Protection and Biodiversity Conservation Act 1999 to replace ‘declare in writing’ with ‘, by legislative instrument, declare’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 82 - Subsection 40(5)

Item 82 repeals subsection 40(5) of the Environment Protection and Biodiversity Conservation Act. Subsection 40(5) provides that a declaration is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 81.

Item 83 - Subsection 178(1)

Item 83 amends subsection 178(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This reflects the existing practice of registering the list on the Federal Register of Legislative Instruments and the amendment does not change the effect of the provision.

Item 84 - Subsection 181(1)

Item 84 amends subsection 181(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This reflects the existing practice of registering the list on the Federal Register of Legislative Instruments.

Item 85 - Subsection 181(5)

Item 85 repeals subsection 181(5) of the Environment Protection and Biodiversity Conservation Act and replaces it with new subsection 181(5). Subsection 181(5) provides that an instrument (other than an instrument establishing the list mentioned in subsection (3)) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 84.

New subsection 181(5) removes doubt that the instrument first establishing the list under subsection (1) is not taken to have been a legislative instrument, as it was required to be published in the Gazette .

Item 86 - Subsection 183(1)

Item 86 amends subsection 183(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This reflects the existing practice of registering the list on the Federal Register of Legislative Instruments, and the amendment does not change the effect of the provision.

Item 87 - Subsection 193(1)

Item 87 amends subsection 193(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 88 - Subsection 193(3)

Item 88 repeals subsection 193(3) of the Environment Protection and Biodiversity Conservation Act. Subsection 193(3) provides that a determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 87.

Item 89 - Paragraph 194(b)

Item 89 amends paragraph 194(b) of the Environment Protection and Biodiversity Conservation Act to replace ‘an up-to-date copy’ with ‘up-to-date copies’. This corrects a grammatical error and it does not change the effect of this provision.

Item 90 - Subsection 248(1)

Item 90 amends subsection 248(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument (which establishes a list of marine species) is a legislative instrument. This reflects the existing practice of registering the list on the Federal Register of Legislative Instruments, and the amendment does not change the effect of the provision.

Item 91 - Subsection 249(1)

Item 91 repeals subsection 249(1) of the Environment Protection and Biodiversity Conservation Act and inserts a new subsection 249(1). Subsection 249(1) provides that the Minister may amend the list of marine species by instrument published in the gazette. The types of amendments that can be made to the list are prescribed in this provision.

New subsection 249(1) provides that the Minister may, by legislative instrument , amend the list by (a) including or deleting items, or (b) correcting an inaccuracy or updating the name of a species. This amendment has the effect of expressly providing that the instrument is a legislative instrument. An amendment to the list by correcting an inaccuracy or updating the name of a species is not currently done by a legislative instrument. This will be a substantive change to the Act, to ensure that all instruments made under sections 248 and 249 are legislative instruments, which will enable complete compilations to be made on the new Register, thereby providing better access to the list in its current form at any particular time.

Item 92 - Subsections 249(2) and (3)

Item 92 repeals subsections 249(2) and (3) of the Environment Protection and Biodiversity Conservation Act and inserts new subsections 249(2) and (3).

Subsections 249(2) and (3) provide that an instrument including or deleting items in the list is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act, and provide for specific commencement of particular instruments. The reference the Acts Interpretation Act is redundant following the amendments in item 91.

New subsection 249(2) provides that amendments of a list that delete items take effect on the first day the amendments are no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act. This amendment reflects the current effect of the provision, but references the disallowance requirements of the Legislation Act rather than a redundant reference to section 48 of the Acts Interpretation Act.

New subsection 249(3) provides that section 42 of the Legislation Act does not apply to a legislative instrument to which paragraph (1)(b) of this section applies (correcting an inaccuracy or updating the name of a marine species). This means that these instruments will not be subject to disallowance processes. It is appropriate that these instruments not be subject to parliamentary scrutiny on the basis they make technical rather than substantive amendments, and consideration by the Parliament would not be an effective use of Parliamentary time.

Item 93 - Subsection 249(4)

Item 93 amends subsection 249(4) of the Environment Protection and Biodiversity Conservation Act to omit the words ‘section 48 of the Acts Interpretation Act 1901 ’ and to insert the words ‘Part 2 of Chapter 3 of the Legislation Act 2003 ’. The reference to the Acts Interpretation Act is redundant following the amendment in item 91.

Item 94 - Subsection 249(5)

Item 94 amends subsection 249(5) of the Environment Protection and Biodiversity Conservation Act to replace ‘an instrument’ with ‘an amendment under subsection (1)’. This amendment is consequential to the amendment in item 91 and it does not change the effect of this provision.

Item 95 - Paragraph 251(2)(b)

Item 95 amends paragraph 251(2)(b) of the Environment Protection and Biodiversity Conservation Act to replace ‘cause the necessary instrument to be published in the Gazette ’ with ‘amend the list accordingly under subsection 249(1)’. This amendment does not change the effect of the provision, but makes clear that an instrument mentioned in this paragraph is an instrument (a legislative instrument) made under subsection 249(1).

Item 96 - Paragraph 251(3)(b)

Item 96 repeals paragraph 251(3)(b) of the Environment Protection and Biodiversity Conservation Act and inserts a new paragraph 251(3)(b). Paragraph 251(3)(b) refers to the publication of an instrument in the Gazette . The reference to the gazette is no longer correct following the amendment in item 91.

New paragraph 251(3)(b) instead refers to registration as a legislative instrument. This paragraph enables a member of the Scientific Committee to disclose advice before the end of a 90 day period if the disclosure ‘relates to an addition or deletion included in an amendment of the list that has already been registered as a legislative instrument under the Legislation Act 2003 .’ This amendment is consequential to the amendment in item 91.

Item 97 - At the end of section 251

Item 97 inserts a note at the end of section 251 of the Environment Protection and Biodiversity Conservation Act to provide that amendments of the list to add or delete an item are legislative instruments. This amendment is to provide clarity about the status of the instruments made under section 249, following the amendment in item 91.

Item 98 - Subsections 303CA(1) and (9)

Item 98 amends subsections 303CA(1) and (9) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument (which establishes a list of CITES species) is a legislative instrument. This reflects the existing practice of registering the list on the Federal Register of Legislative Instruments, and the amendment does not change the effect of the provision.

Item 99 - Subsection 303CA(10)

Item 99 repeals subsection 303CA(10) of the Environment Protection and Biodiversity Conservation Act. Subsection 303CA(10) provides that a copy of an instrument under subsection (1) or (9) is to be made available for inspection on the internet. The requirement to publish on the internet is redundant following the amendment in item 98, which has the effect of requiring publication on the new Register.

Item 100 - Subsection 303CB(1)

Item 100 amends subsection 303CB(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 101 - Subsections 303CB(3) and (4)

Item 101 repeals subsections 303CB(3) and (4) of the Environment Protection and Biodiversity Conservation Act. Subsection 303CB(3) provides that an instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 100.

Subsection 303CB(4) provides that a copy of an instrument under subsection (1) is to be made available for inspection on the internet. The requirement to publish on the internet is redundant following the amendment in item 100, which has the effect of requiring publication on the new Register.

Item 102 - Subsection 303CH(1) (table item 3, subparagraph (b)(i))

Item 102 repeals subparagraph (b)(i) of table item 3 of subsection 303CH(1) of the Environment Protection and Biodiversity Conservation Act, and inserts a new subparagraph (b)(i). This amendment removes a reference to a specimen that ‘is specified by the Minister in a notice published in the Gazette to be a declared specimen; and’, and inserts a reference to a specimen that is ‘specified by the Minister under subsection (2) as a declared specimen; and’.

This amendment is consequential to item 103, which provides that this type of instrument is a notifiable instrument. Notifiable instruments are required to be published on the new Register.

Item 103 - Subsection 303CH(2)

Item 103 repeals subsection 303CH(2) of the Environment Protection and Biodiversity Conservation Act and inserts a new subsection 303CH(2). Subsection 303CH(2) provides that ‘a notice made under subparagraph (b)(i) of item 3 in the table in subsection (1) is not a legislative instrument’.

New subsection 303CH(2) provides that ‘the Minister may, by notifiable instrument, specify a specimen as a declared specimen for the purposes of subparagraph (b)(i) of item 3 of the table in subsection (1)’. A note makes clear that notifiable instruments must be registered under the Legislation Act, but they are not subject to parliamentary scrutiny or sunsetting under that Act.

This amendment has the effect of ensuring these types of instruments are published centrally and in authoritative form on the new Register. The legal effect of this provision is not being changed, other than to require registration on the new Register. These instruments are not currently subject to parliamentary scrutiny or sunsetting, nor will they be following these amendments.

Item 104 - Subsection 303DB(1)

Item 104 amends subsection 303DB(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument (which establishes a list of exempt native species) is a legislative instrument. This reflects the existing practice of registering the list on the Federal Register of Legislative Instruments, and the amendment does not change the effect of the provision.

Item 105 - Subsection 303DB(7)

Item 105 repeals subsection 303DB(7) of the Environment Protection and Biodiversity Conservation Act. Subsection 303DB(7) provides that a copy of an instrument under subsection (1) is to be made available for inspection on the internet. The requirement to publish on the internet is redundant following the amendment in item 104, which has the effect of requiring publication on the new Register.

Item 106 - Subsection 303DC(1)

Item 106 repeals subsection 303DC(1) of the Environment Protection and Biodiversity Conservation Act and inserts a new subsection 303DC(1). Subsection 303DC(1) provides that the Minister may, by instrument published in the Gazette , amend the list of exempt native specimens in particular ways prescribed by the provision.

New subsection 303DC(1) provides that the Minister may, by legislative instrument, amend the list referred to in section 303DB (list of exempt native specimens) by: including items in the list, deleting items from the list, imposing a condition or restriction to which the inclusion of a specimen in the list is subject, varying or revoking a condition or restriction to which the inclusion of a specimen in the list is subject, or correcting an inaccuracy or updating the name of a species.

This amendment has the effect of expressly providing that the instrument is a legislative instrument. An amendment to the list by correcting an inaccuracy or updating the name of a species is not currently done by a legislative instrument. This amendment will be a substantive change to the Act, to ensure that all instruments made under sections 303DB and 303DC are legislative instruments, which will enable complete compilations to be made on the new Register, thereby providing better access to the list in its current form at any particular time.

Item 107 - Subsections 303DC(1B) and (2)

Item 107 amends subsections 303DC(1B) and (2) of the Environment Protection and Biodiversity Conservation Act to replace ‘paragraph (1)(e)’ with ‘paragraph (1)(b)’. This amendment is consequential to the amendment in item 132 and does not change the effect of these provisions.

Item 108 - Subsection 303DC(3)

Item 108 amends subsection 303DC(3) of the Environment Protection and Biodiversity Conservation Act to replace ‘paragraph (1)(a), (b), (c) or (d)’ with ‘paragraph (1)(a)’. This amendment is consequential to the amendment in item 106 and does not change the effect of this provision.

Item 109 - Subsections 303DC(4) and (5)

Item 109 repeals subsections 303DC(4) and (5) of the of the Environment Protection and Biodiversity Conservation Act and inserts a new subsection 303DC(4). Subsection 303DC(4) provides that an under subsection (1) (other than an instrument mentioned in paragraph (1)(e) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 106.

Subsection 303DC(5) provides that a copy of an instrument under subsection (1) is to be made available for inspection on the internet. The requirement to publish on the internet is redundant following the amendment in item 106, which has the effect of requiring publication on the new Register.

New subsection 303DC(4) provides that legislative instruments to which paragraph (1)(b) of this section applies (an instrument to correct an inaccuracy or update the name of a species), are not subject to disallowance under section 42 of the Legislation Act. This means that these instruments will not be subject to disallowance processes. It is appropriate that these instruments not be subject to parliamentary scrutiny on the basis they make technical rather than substantive amendments, and consideration by the Parliament would not be an effective use of parliamentary time.

Item 110 - Subsection 303EB(1)

Item 110 amends subsection 303EB(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument (which establishes a list of specimens that are taken to be suitable for live import) is a legislative instrument. This reflects the existing practice of registering the list on the Federal Register of Legislative Instruments, and the amendment does not change the effect of the provision.

Item 111 - Subsection 303EB(12)

Item 111 repeals subsection 303EB(12) of the of the Environment Protection and Biodiversity Conservation Act. Subsection 303EB(12) provides that a copy of an instrument under subsection (1) is to be made available for inspection on the internet. The requirement to publish on the internet is redundant following the amendment in item 110, which has the effect of requiring publication on the new Register.

Item 112 - Subsection 303EC(1)

Item 112 repeals subsection 303EC(1) of the Environment Protection and Biodiversity Conservation Act and inserts a new subsection 303EC(1). Subsection 303EC(1) provides that the Minister may, by instrument published in the Gazette , amend the list of specimens that are taken to be suitable for live import, in particular ways prescribed by the provision.

New subsection 303EC(1) provides that the Minister may, by legislative instrument, amend the list referred to in section 303EB (list of specimens that are taken to be suitable for live import) by: including items in a particular part of the list, deleting items from a particular part of the list, imposing a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject, varying or revoking a restriction or condition to which the inclusion of a specimen in Part 2 of the list is subject, or correcting an inaccuracy or updating the name of a species.

This amendment has the effect of expressly providing that the instrument is a legislative instrument. An amendment to the list by correcting an inaccuracy or updating the name of a species is not currently done by a legislative instrument. This will be a substantive change to the Act, to ensure that all instruments made under sections 303EB and 303EC are legislative instruments, which will enable complete compilations to be made on the new Register, thereby providing better access to the list in its current form at any particular time.

Item 113 - Subsection 303EC(2)

Item 113 amends subsection 303EC(2) of the Environment Protection and Biodiversity Conservation Act to replace ‘paragraph (1)(c)’ with ‘paragraph (1)(b)’. This amendment is consequential to the amendment in item 112 and does not change the effect of these provisions.

 

 

Item 114 - Subsection 303EC(3)

Item 114 amends subsection 303EC(3) of the Environment Protection and Biodiversity Conservation Act to replace ‘paragraph (1)(a), (b), (d) or (e)’ with ‘paragraph (1)(a)’. This amendment is consequential to the amendment in item 112 and does not change the effect of these provisions.

Item 115 - Subsection 303EC(4)

Item 115 repeals subsection 303EC(4) of the Environment Protection and Biodiversity Conservation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 112.

Item 116 - Subsection 303EC(6)

Item 116 repeals subsection 303EC(6) of the Environment Protection and Biodiversity Conservation Act and inserts a new subsection 303EC(6). Subsection 303EC(6) provides that a copy of an instrument under subsection (1) is to be made available for inspection on the internet. The requirement to publish on the internet is redundant following the amendment in item 112, which has the effect of requiring publication on the new Register.

New subsection 303EC(6) provides that legislative instruments to which paragraph (1)(b) of this section applies (an instrument to correct an inaccuracy or update the name of a species), are not subject to disallowance under section 42 of the Legislation Act. This means that these instruments will not be subject to disallowance processes. It is appropriate that these instruments not be subject to parliamentary scrutiny on the basis they make technical rather than substantive amendments, and consideration by the Parliament would not be an effective use of parliamentary time.

Item 117 - Subsection 303EU(1)

Item 117 amends subsection 303EU(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘make a written’ with ‘, by legislative instrument, make a’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 118 - Subsection 303EU(5)

Item 118 repeals subsection 303EU(5) of the Environment Protection and Biodiversity Conservation Act. Subsection 303EU(5) provides that a determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 117.

Item 119 - Subsection 303FG(4)

Item 119 amends subsection 303FG(4) of the Environment Protection and Biodiversity Conservation Act to replace ‘by instrument published in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This reflects the existing practice of registering the list on the Federal Register of Legislative Instruments, and the amendment does not change the effect of the provision.

Item 120 - Subsection 303FG(6)

Item 120 repeals subsection 303FG(6) of the Environment Protection and Biodiversity Conservation Act and inserts a new 303FG(6). Subsection 303FG(6) provides that the Minister may, by instrument published in the Gazette , amend the list of native household pet animals, in particular ways prescribed by the provision.

New subsection 303FG(6) provides that the Minister may, by legislative instrument, amend the list referred to in subsection (4) (list of native household pet animals) by: (a) including or deleting items from the list, or (b) correcting an inaccuracy or updating the name of a species.

This amendment has the effect of expressly providing that an instrument amending the list is a legislative instrument. An amendment to the list by correcting an inaccuracy or updating the name of a species is not currently made by a legislative instrument (see item 121). This will be a substantive change to the Act, to ensure that all amendments to the list are legislative instruments, which will enable complete compilations to be made on the new Register, thereby providing better access to the list in its current form at any particular time.

Item 121 - Subsection 303FG(7)

Item 121 repeals subsection 303FG(7) of the Environment Protection and Biodiversity Conservation Act and inserts a new subsection 303FG(7). Subsection 303FG(7) provides that an instrument under subsection (6) (other than an instrument that corrects an inaccuracy or updates the name of a species), is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 303FG(7) provides that legislative instruments to which paragraph (6)(b) of this section applies (an instrument to correct an inaccuracy or update the name of a species), are not subject to disallowance under section 42 of the Legislation Act. This means that these instruments will not be subject to disallowance processes. It is appropriate that these instruments not be subject to parliamentary scrutiny on the basis they make technical rather than substantive amendments, and consideration by the Parliament would not be an effective use of parliamentary time.

Item 122 - Subsections 303GX(2) and (3)

Item 122 amends subsection 303GX(2) and (3) of the Environment Protection and Biodiversity Conservation Act to replace ‘notice published in the Gazette ’ with ‘notifiable instrument’.

This amendment has the effect of ensuring these instruments are published centrally and in authoritative form on the new Register. The legal effect of this provision is not being changed, other than to require registration on the new Register.

Item 123 - At the end of subsection 303GX(3)

Item 123 inserts a note at the end of subsection 303GX(3) of the Environment Protection and Biodiversity Conservation Act. The note provides that notifiable instruments must be registered under the Legislation Act, but they are not subject to parliamentary scrutiny or sunsetting under that Act. These instruments are not currently subject to parliamentary scrutiny or sunsetting, so this note makes clear that the legal effect of this provision is not being changed, other than to require registration on the new Register.

Item 124 - Subsection 324L(3)

Item 124 repeals subsection 324L(3) of the Environment Protection and Biodiversity Conservation Act and inserts new subsection 324L(3). Subsection 324L(3) provides that the Minister may make an instrument for a particular purpose that is to be published in the Gazette .

New subsection 324L(3) provides that the Minister may make an instrument for the same purpose as the existing provision, but the new provision removes the reference to publication in the Gazette . A note is included to direct the reader to subsections (5) and (6) for requirements relating to the instrument under the Legislation Act.

Item 125 - Subsections 324L(5) and (6)

Item 125 repeals subsections 324L(5) and (6) of the Environment Protection and Biodiversity Conservation Act and inserts new subsections 324L(5) and (6). Subsection 324L(5) provides that an instrument that deals only with removal for loss of value is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act and provides for the specific commencement of these types of instruments. Subsection 324L(6) provides that the Minister must publish a copy of the instrument on the internet and in each other way required by regulations, within 10 business days of publication of the instrument in the Gazette .

New subsection 324L(5) provides that an instrument that deals only with removal for loss of value is a legislative instrument and takes effect on the first day on which it is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act.

New subsection 324L(6) provides that if subsection (5) does not apply (that is, for other types of instruments), an instrument is a notifiable instrument. A note is included that provides that notifiable instruments must be registered under the Legislation Act, but they are not subject to parliamentary scrutiny or sunsetting under that Act.

This amendment has the effect of ensuring these instruments are published centrally and in authoritative form on the new Register, whether as legislative instruments (under subsection 5) or as notifiable instruments (under subsection (6). This reflects existing practice and the amendment does not change the effect of the provision. The instruments that will be taken to be notifiable instruments are not currently subject to parliamentary scrutiny or sunsetting, so the note makes clear that the legal effect of this provision is not being changed, other than to require registration on the new Register.

Item 126 - Paragraph 324M(5)(b)

Item 126 amends paragraph 324M(5)(b) of the Environment Protection and Biodiversity Conservation Act to replace ‘published in the Gazette ’ with ‘made’. This amendment is consequential to the amendments made in items 124 and 125.

Item 127 - Subparagraph 324R(2)(b)(i)

Item 127 amends subparagraph 324R(2)(b)(i) of the Environment Protection and Biodiversity Conservation Act to replace ‘publication in the Gazette of an instrument’ with ‘registration under the Legislation Act 2003 of a legislative instrument’. This amendment is consequential to the amendments made in items 124 and 125.

Item 128 - Subsection 341L(4)

Item 128 repeals subsection 341L(4) of the Environment Protection and Biodiversity Conservation Act, and inserts a new subsection 341L(4). Subsection 341L(4) provides that the Minister may make an instrument for a particular purpose that is to be published in the Gazette .

New subsection 341L(4) provides that the Minister may make an instrument for the same purpose as the existing provision, but the new provision removes the reference to publication in the Gazette . A note is included to direct the reader to subsections (6) and (7) for requirements relating to the instrument under the Legislation Act.

Item 129 - Subsections 341L(6) and (7)

Item 129 repeals subsections 341L(6) and (7) of the Environment Protection and Biodiversity Conservation Act and inserts a new subsection 341L(6) and (7). Subsection 341L(6) provides that an instrument that deals only with removal for loss of value is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. It also provides for the specific commencement of these types of instruments. Subsection 341L(7) provides that the Minister must publish a copy of the instrument on the internet and in each other way required by regulations, within 10 business days of publication of the instrument in the Gazette .

New subsection 341L(6) provides that an instrument that deals only with removal for loss of value is a legislative instrument and takes effect on the first day on which it is no longer liable to be disallowed, or to be taken to have been disallowed, under section 42 of the Legislation Act.

New subsection 324L(7) provides that if subsection (6) does not apply (that is, for other types of instruments), an instrument is a notifiable instrument. A note is included that provides that notifiable instruments must be registered under the Legislation Act, but they are not subject to parliamentary scrutiny or sunsetting under that Act.

This amendment has the effect of ensuring these instruments are published centrally and in authoritative form on the new Register, whether as legislative instruments (under subsection (6) or as notifiable instruments (under subsection (7)). This reflects existing practise and the amendment does not change the effect of the provision.

The instruments that will be taken to be notifiable instruments are not currently subject to parliamentary scrutiny or sunsetting, so the note makes clear that the legal effect of this provision is not being changed, other than to require registration on the new Register.

Item 130 - Paragraph 341M(5)(b)

Item 130 amends paragraph 341M(5)(b) of the Environment Protection and Biodiversity Conservation Act to replace ‘published in the Gazette ’ with ‘made’. This amendment is consequential to the amendments made in items 128 and 129.

Item 131 - Subparagraph 341R(2)(b)(i)

Item 131 amends subparagraph 341R(2)(b)(i) of the Environment Protection and Biodiversity Conservation Act to replace ‘publication in the Gazette ’ with ‘registration under the Legislation Act 2003 ’. This amendment is consequential to the amendments made in items 128 and 129.

Item 132 - Section 371 (heading)

Item 132 repeals the heading of section 371 of the Environment Protection and Biodiversity Conservation Act (‘Approved management plans are disallowable instruments’) and inserts a new heading, ‘Approved management plans are legislative instruments ’. This reflects the amendments made in item 133.

Item 133 - Subsections 371(1) and (2)

Item 133 repeals subsections 371(1) and (2) of the Environment Protection and Biodiversity Conservation Act and inserts a new subsection 371(1). Subsection 371(1) provides that a management plan approved for a Commonwealth reserve by the Minister is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. Subsection 371(2) provides that the provisions mentioned in section 46A of the Acts Interpretation Act apply as if the approval of the management plan were the making of the plan.

New subsection 371(1) provides that a management plan for the Commonwealth reserve prepared by the Director, and the Board (if any) for the reserve, and approved by the Minister, is a legislative instrument made by the Minister on the day the plan is approved. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 134 - Subsection 517(1)

Item 134 amends subsection 517(1) of the Environment Protection and Biodiversity Conservation Act to replace ‘instrument in writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 135 - Subsection 517(2)

Item 135 repeals subsection 517(2) of the Environment Protection and Biodiversity Conservation Act. Subsection 517(2) provides that a determination under subsection 517(1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 134.

Item 136 - Section 528 (note at the end of the definition of species)

Item 136 repeals the note at the end of the definition of species in section 528 of the Environment Protection and Biodiversity Conservation Act. The note clarifies that determinations made under section 517 are disallowable instruments. This note is redundant following the amendment in item 134 which expressly provides that an instrument made under that provision is a legislative instrument.

 

 

Export Control Act 1982

Item 137 - Subsections 25(4)

Item 137 repeals subsection 25(4) of the Export Control Act 1982 and inserts a new subsection 25(4). Subsection 25(4) applies sections 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act to orders made under the Act with the effect that orders are taken to be legislative instruments.

New subsection 25(4) provides than an order is a legislative instrument. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 138 - Subsections 25(6) and (7)

Item 138 repeals subsections 25(6) and (7) of the Export Control Act. These provisions are redundant as they include a reference to the Statutory Rules Publication Act which has been repealed.

Fisheries Management Act 1991

Item 139 - Subsection 42(3)

Item 139 amends subsection 42(3) of the Fisheries Management Act 1991 to replace ‘disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 ’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 140 - Subsection 43(11)

Item 140 amends subsection 43(11) of the Fisheries Management Act to replace ‘disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 ’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Foreign Proceedings (Excess of Jurisdiction) Act 1984

Item 141 - Subsection 7(1)

Item 141 amends subsection 7(1) of the Foreign Proceedings (Excess of Jurisdiction) Act 1984 to replace ‘, by order in writing, prohibit’ with ‘, by legislative instrument, make an order prohibiting’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

 

Item 142 - Paragraphs 9(1)(c) and (d)

Item 142 amends paragraphs 9(1)(c) and (d) of the Foreign Proceedings (Excess of Jurisdiction) Act to replace ‘by instrument in writing’ with ‘by legislative instrument,’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 143 - After section 10

Item 143 inserts a new section 10A after section 10. New section 10A deals with the commencement of declarations made by the Attorney-General under section 9 of the Act. It provides that a declaration under subsection 9(1) comes into force for the purposes of section 10 on a day fixed by the Attorney-General by notifiable instrument. That fixed day cannot be earlier than the first day on which the Attorney-General is satisfied that the instrument under subsection 9(1) will no longer be liable to be disallowed, or to be taken to be disallowed, under section 42 of the Legislation Act.

New subsection 10A(3) is intended to avoid doubt. Subsections 10(1) and (2) do not affect the operation of subsection 12(1) of the Legislation Act in relation to the coming into force of the instrument under subsection 9(1) of this Act for any other purpose.

A note is provided to clarify that subsection 12(1) of the Legislation Act provides that a legislative instrument commences on the day it is registered under that Act, or otherwise as provided by the instrument.

Item 144 - Subsection 12(1)

Item 144 amends subsection 12(1) of the Foreign Proceedings (Excess of Jurisdiction) Act to replace ‘, by order in writing, declare’ with ‘, by legislative instrument, make an order declaring’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 145 - At the end of Division 3 of Part II

Item 145 adds new section 12A at the end of Division 3 of Part II of the Foreign Proceedings (Excess of Jurisdiction) Act. New section 12A deals with the commencement of orders made by the Attorney-General under section 12 of the Act. It provides that despite subsection 12(1) of the Legislation Act, an order under subsection 12(1) comes into force on a day fixed by the Attorney-General by notifiable instrument.

That fixed day cannot be earlier than the first day on which the Attorney-General is satisfied that the order under subsection 12(1) will no longer be liable to be disallowed, or to be taken to be disallowed, under section 42 of the Legislation Act.

A note (note 1) clarifies that subsection 12(1) of the Legislation Act deals with commencement of legislative instruments. A second note (note 2) clarifies that notifiable instruments must be registered under the Legislation Act, but they are not subject to parliamentary scrutiny or sunsetting under that Act.

Item 146 - Subsection 13(1)

Item 146 amends subsection 13(1) of the Foreign Proceedings (Excess of Jurisdiction) Act to replace ‘by order in writing prohibit’ with ‘by legislative instrument, make an order that prohibits’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 147 - Subsections 14(2) and (3)

Item 147 amends subsections 14(2) and (3) of the Foreign Proceedings (Excess of Jurisdiction) Act to replace ‘by order prohibit’ with ‘by legislative instrument, make an order prohibiting’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 148 - Section 15

Item 148 repeals section 15 of the Foreign Proceedings (Excess of Jurisdiction) Act. This provision provides for parliamentary disallowance of orders and instruments under the Act with reference to the Acts Interpretation Act. This provision is redundant following the amendments in items 141, 142, 144, 146 and 147.

Item 149 - Paragraph 17(a)

Item 149 amends paragraph 17(a) of the Foreign Proceedings (Excess of Jurisdiction) Act to replace ‘notice of that order published in the Gazette in accordance with subsection 48(1) of the Acts Interpretation Act 1901 as applied by subsection 15(1) of this Act’ with ‘order’. This amendment removes the redundant reference to the Acts Interpretation Act following the amendments above, and has the effect of requiring the service of a copy of the order rather than a copy of the Gazette notice.

Item 150 - Paragraph 17(b)

Item 150 amends paragraph 17(b) of the Foreign Proceedings (Excess of Jurisdiction) Act to replace ‘notice of the order published as mentioned in paragraph (a)’ with ‘content of the order’. This amendment is consequential to the amendment made in item 149, and has the effect of requiring the Attorney-General to cause reasonable steps to be taken to bring to the attention of the person the content of the order rather than the Gazette notice of the order.

Item 151 - Subsection 19(2)

Item 151 repeals subsection 19(2) of the Foreign Proceedings (Excess of Jurisdiction) Act and inserts a new subsection 19(2). Subsection 19(2) allows the regulations to commence on a day fixed by the regulations themselves, and provides for the retrospective operation of certain regulations (to override existing subsection 12(2) of the Legislative Instruments Act).

New subsection 19(2) provides that subsection 12(2) of the Legislation Act does not apply to certain regulations made under this section. A note clarifies that subsection 12(2) of the Legislation Act is about the retrospective application of legislative instruments. This amendment allows certain regulations to be made to have retrospective operation even though this may result in disadvantage or liability for a person.

New subsection 12(1) of the Legislation Act provides for legislative instruments to fix a day for their commencement. This means that it is not necessary to provide in subsection 19(2) of the Foreign Proceedings (Excess of Jurisdiction) Act for the regulations to fix a day for their commencement.

Gene Technology Act 2000

Item 152 - Subsection 21(1)

Item 152 amends subsection 21(1) of the Gene Technology Act 2000 to replace ‘may issue’ with ‘may, by legislative instrument, issue’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 153 - Subsection 21(4)

Item 153 repeals subsection 21(4) of the Gene Technology Act. Subsection 21(4) provides that policy principles are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 152.

Item 154 - Subsection 24(1)

Item 154 amends subsection 24(1) of the Gene Technology Act to replace ‘may issue’ with ‘may, by legislative instrument, issue’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 155 - Subsection 24(3)

Item 155 repeals subsection 24 (3) of the Gene Technology Act. Subsection 24(3) provides that codes of practice are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 154.

Item 156 - Subsection 78(1)

Item 156 amends subsection 78(1) of the Gene Technology Act to replace ‘by writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 157 - Subsection 78(4)

Item 157 repeals subsection 78(4) of the Gene Technology Act. Subsection 78(4) provides that a determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 156.

Item 158 - Subsection 80(1)

Item 158 amends subsection 80(1) of the Gene Technology Act to replace ‘vary the GMO Register by written determination’ with ‘, by legislative instrument, vary the GMO Register’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 159 - Subsection 80(3)

Item 159 repeals subsection 80(3) of the Gene Technology Act. Subsection 80(3) provides that a determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 158.

Health and Other Services (Compensation) Act 1995

Item 160 - Subsection 33B(2)

Item 160 inserts the words ‘under subsection (4)’ after ‘determines’ in subsection 33B(2) of the Health and Other Services (Compensation) Act 1995 . This amendment, read with the amendment in item 162, clarifies the status of an instrument made under this subsection.

Item 161 - Subsection 33B(2A)

Item 162 amends subsection 33B(2A) of the Health and Other Services (Compensation) Act to replace ‘subsection (2)’ with ‘subsection (4)’. This amendment, read with the amendment in item 162, clarifies the status of an instrument made under subsection (2).

Item 162 - Subsection 33B(4)

Item 162 repeals subsection 33B(4) of the Health and Other Services (Compensation) Act which refers to section 46A of the Acts Interpretation Act, and inserts a new subsection 33B(4) to provide that the Minister may, by legislative instrument, make a determination for the purposes of subsection (2). This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Health Insurance Act 1973

Item 163 - Subsection 3AAA(2)

Item 163 amends subsection 3AAA(2) of the Health Insurance Act to replace ‘instrument in writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

 

Item 164 - Subsection 3AAA(4)

Item 164 repeals subsection 3AAA(4) of the Health Insurance Act. Subsection 3AAA(4) provides that an instrument determined under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 163.

Item 165 - Subsection 3AA(3)

Item 165 amends subsection 3AA(3) of the Health Insurance Act to replace ‘in writing’ with ‘under subsection (4)’. This amendment, read with the amendment in item 166, clarifies the status of an instrument made under this section.

Item 166 - Subsection 3AA(4)

Item 166 amends subsection 3AA(4) of the Health Insurance Act to replace ‘in writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 167 - Subsection 3AA(5)

Item 167 repeals subsection 3AA(5) of the Health Insurance Act. Subsection 3AA(5) provides that a determination under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 166.

Item 168 - Subsection 3C(1)

Item 168 amends subsection 3C(1) of the Health Insurance Act to replace ‘by writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 169 - Subsection 3C(2)

Item 169 repeals subsection 3C(2) of the Health Insurance Act and inserts a new subsection 3C(2). Subsection 3C(2) provides for the retrospective operation of a determination made under subsection (1), as long as it does take effect on a day before 1 February 1984.

New subsection 3C(2) provides that subsection 12(2) of the Legislation Act does not apply to a determination under subsection (1). The limitation that the instrument must not take effect earlier than 1 February 1984 is no longer relevant and is omitted in new subsection 3C(2). A note clarifies that subsection 12(2) of the Legislation Act is about the retrospective application of legislative instruments. This amendment allows a determination to be made to have retrospective operation even though this may result in disadvantage or liability for a person. This amendment retains the current effect of the provision.

 

 

Item 170 - Subsections 3C(4), (5) and (6)

Item 170 repeals subsections 3C(4), (5) and (6) of the Health Insurance Act. The reference to the Acts Interpretation Act in subsection 3C(4) is redundant following the amendment in item 168. Subsections 3C(5) and (6) are redundant as they include a reference to the Statutory Rules Publication Act which has been repealed.

Item 171 - Subsection 3GC(1)

Item 171 amends subsection 3GC(1) of the Health Insurance Act to omit the words ‘in writing’. This amendment, read with the amendment in item 174, clarifies the status of an instrument (a determination) made under this section.

Item 172 - Paragraphs 3GC(2)(a) and (b)

Item 172 amends paragraphs 3GC(2)(a) and (b) of the Health Insurance Act to omit the words ‘in writing’. This amendment, read with the amendment in item 174, clarifies the status of an instrument (a determination) made under this section.

Item 173 - Subsection 3GC(3)

Item 173 amends subsection 3GC(3) of the Health Insurance Act to omit the word ‘written’. This amendment, read with the amendment in item 174, clarifies the status of an instrument (a determination) made under this section.

Item 174 - Subsection 3GC(6)

Item 174 repeals subsection 3GC(6) of the Health Insurance Act and inserts a new subsection 3GC(6). Subsection 3GC(6) provides that determinations under this section are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act.

New subsection 3GC(6) provides that a determination under this section is a legislative instrument. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 175 - Sections 4BA and 4BB

Item 175 amends sections 4BA and 4BB of the Health Insurance Act to replace ‘in writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 176 - Section 4BC

Item 176 repeals section 4BC of the Health Insurance Act. This section includes redundant references to the Acts Interpretation Act (following the amendment in item 175) and to the Statutory Rules Publication Act (which has been repealed).

 

Item 177 - Subsection 6(2)

Item 177 amends subsection 6(2) of the Health Insurance Act to replace ‘by order in writing, declare’ with ‘by legislative instrument, make an order declaring’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 178 - Subsections 6(5), (6), (7) and (8)

Item 178 repeals subsections 6(5), (6), (7) and (8) of the Health Insurance Act. These subsections include redundant references to the Acts Interpretation Act (following the amendment in item 177) and to the Statutory Rules Publication Act (which has been repealed).

Item 179 - Subsection 8A(1)

Item 179 amends subsection 8A(1) of the Health Insurance Act to replace ‘in writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 180 - Subsection 8A(3)

Item 180 repeals subsection 8A(3) of the Health Insurance Act. Subsection 8A(3) provides that a determination under this section is a disallowable instrument for the purposes of section 46A of the Acts interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 179.

Item 181- Subsection 19AB(4B)

Item 181 amends subsection 19AB(4B) of the Health Insurance Act to replace ‘in writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 182 - Subsection 19AB(4D)

Item 182 repeals subsection 19AB(4D) of the Health Insurance Act. Subsection 19AB(4D) provides that a determination under subsection (4B) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 181.

Item 183 - Subsection 19C(5)

Item 183 amends subsection 19C(5) of the Health Insurance Act to insert the words ‘, by legislative instrument,’ after the words ‘by the Minister’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 184 - Subsection 19C(6)

Item 184 repeals subsection 19C(6) of the Health Insurance Act. Subsection 19C(6) provides that a determination under subsection (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 183.

Item 185 - At the end of subsection 20AB(3)

Item 185 inserts the words ‘under subsection (6)’ at the end of subsection 20AB(3) of the Health Insurance Act. This amendment, read with the amendment in item 187, clarifies the status of an instrument made under this section.

Item 186 - Subsection 20AB(5)

Item 186 amends subsection 20AB(5) of the Health Insurance Act to replace ‘in writing by the Minister from time to time’ with ‘by the Minister under subsection (6)’ Subsection 20AB(5) provides that an approval under subsection 20AB(1) is subject to such conditions as are determined by the Minister in writing from time to time. The new subsection 20AB(5), read with the amendment in item 187, clarifies that conditions determined under that subsection are legislative instruments.

Item 187 - Subsection 20AB(6)

Item 187 repeals subsection 20AB(6) of the Health Insurance Act and inserts new subsection 20AB(6). Subsection 20AB(6) provides that guidelines made under subsection (3) and conditions determined under subsection (5) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act.

New subsection 20AB(6) provides that the Minister may, by legislative instrument, make guidelines for the purposes of subsection (3), and determine conditions for the purposes of subsection (5). This amendment has the effect of expressly conferring powers on the Minister to make a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 188 - Paragraph 20AC(1)(a)

Item 188 amends paragraph 20AC(1)(a) of the Health Insurance Act to omit ‘20AB(3)’ and to insert ‘20AB(6)’. This amendment is consequential to the amendments in items 185 and 187.

Item 189 - Subsection 23DB(1)

Item 189 amends subsection 23DB(1) of the Health Insurance Act to replace ‘approve, in writing,’ with ‘, by legislative instrument, approve’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

 

 

Item 190 - Subsection 23DB(2)

Item 190 amends subsection 23DB(2) of the Health Insurance Act to replace ‘vary, in writing,’ with ‘, by legislative instrument, vary’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 191 - Subsections 23DB(5), (6) and (7)

Item 191 repeals subsections 23DB(5), (6) and (7) of the Health Insurance Act. The reference to the Acts Interpretation Act in subsection 23DB(5) is redundant following the amendments in items 189 and 190. Subsections 23DB(6) and (7) are redundant as they include a reference to the Statutory Rules Publication Act which has been repealed.

Item 192 - Subsection 23DBA(1)

Item 192 amends subsection 23DBA(1) of the Health Insurance Act to replace ‘a determination in writing’ with  ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 193 - Subsection 23DBA(3)

Item 193 repeals subsection 23DBA(3) of the Health Insurance Act. Subsection 23DBA(3) provides that a determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 192.

Item 194 - Paragraph 23DC(2)(c)

Item 194 amends paragraph 23DC(2)(c) of the Health Insurance Act to replace ‘, in writing,’ with ‘under subsection (12)’. This amendment, read with the amendment in item 195, clarifies the status of an instrument made under this section.

Item 195 - Subsections 23DC(12), (13) and (14)

Item 195 repeals subsections 23DC(12), (13) and (14) of the Health Insurance Act and inserts a new subsection 23DC(12) which provides that the Minister may, by legislative instrument, determine particulars for the purposes of subsection (2). This amendment removes redundant references to the Acts Interpretation Act and the Statutory Rules Publication Act (which has been repealed) and expressly provides that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 196 - Paragraph 23DF(2)(c)

Item 196 amends paragraph 23DF(2)(c) of the Health Insurance Act to replace ‘, in writing,’ with ‘under subsection (13)’. This amendment, read with the amendment in item 197, clarifies the status of an instrument made under this section.

 

Item 197 - Subsections 23DF(13), (14) and (15)

Item 197 repeals subsections 23DF(13), (14) and (15) of the Health Insurance Act and inserts a new subsection 23DF(13) which provides that the Minister may, by legislative instrument, determine particulars for the purposes of subsection (2). This amendment removes redundant references to the Acts Interpretation Act and the Statutory Rules Publication Act (which has been repealed) and expressly confers the power on the Minister to make a legislative instrument. The user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 198 - Subsection 23DNBA(4)

Item 198 amends subsection 23DNBA(4) of the Health Insurance Act to replace ‘in writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 199 - Subsection 23DNBA(6)

Item 199 repeals subsection 23DNBA(6) of the Health Insurance Act. Subsection 23DNBA(6) provides that a determination under subsection (4) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 198.

Item 200 - Subsection 23DSB(1)

Item 200 amends subsection 23DSB(1) of the Health Insurance Act to replace ‘The Minister may approve, in writing, for the purposes of this Act’ with ‘For the purposes of this Act, the Minister may, by legislative instrument, approve’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 201 - Subsection 23DSB(3)

Item 201 repeals subsection 23DSB(3) of the Health Insurance Act. Subsection 23DSB(3) provides that an approval is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 200.

Item 202 - Subsection 23DU(1)

Item 202 amends subsection 23DU(1) of the Health Insurance Act to omit ‘(1)’. This amendment is consequential to the amendment in item 204.

Item 203 - Subsection 23DU(1)

Item 203 amends subsection 23DU(1) of the Health Insurance Act to replace ‘determine, in writing,’ with ‘, by legislative instrument, determine’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 204 - Subsection 23DU(2)

Item 204 repeals subsection 23DU(2) of the Health Insurance Act. Subsection 23DU(2) provides that a determination is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 203.

Item 205 - Subsection 124H(1)

Item 205 amends subsection 124H(1) of the Health Insurance Act to replace ‘by instrument in writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 206 - Subsections 124H(3), (4) and (5)

Item 206 repeals subsection 124H(3), (4) and (5) of the Health Insurance Act. These subsections include redundant references to the Acts Interpretation Act (following the amendment in item 205) and to the Statutory Rules Publication Act (which has been repealed).

Item 207 - Subsection 124X(1)

Item 207 amends subsection 124X(1) of the Health Insurance Act to replace ‘by signed writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 208 - Section 124ZA

Item 208 repeals section 124ZA of the Health Insurance Act. Section 124ZA provides that an instrument of declaration made under section 124X is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 207.

Hearing Services Administration Act 1997

Item 209 - Subsection 5(3)

Item 209 amends subsection 5(3) of the Hearing Services Administration Act 1997 to replace ‘writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

 

 

Item 210 - Subsection 5(4)

Item 210 repeals subsection 5(4) of the Hearing Services Administration Act. Subsection 5(4) provides that a determination under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 209.

Item 211 - Subsection 11(1)

Item 211 amends subsection 11(1) of the Hearing Services Administration Act to replace ‘written instrument’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 212 - Subsection 11(5)

Item 212 repeals subsection 11(5) of the Hearing Services Administration Act. Subsection 11(5) provides that rules under subsection (1) are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 211.

Item 213 - Subsection 13(1)

Item 213 amends subsection 13(1) of the Hearing Services Administration Act to replace ‘writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 214 - Subsection 13(4)

Item 214 repeals subsection 13(4) of the Hearing Services Administration Act. Subsection 13(4) provides that a determination under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 213.

Item 215 - Subsection 15(1)

Item 215 amends subsection 15(1) of the Hearing Services Administration Act to replace ‘written instrument’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 216 - Subsection 15(8)

Item 216 repeals subsection 15(8) of the Hearing Services Administration Act. Subsection 15(8) provides that an instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 215.

 

Item 217 - Subsection 17(1)

Item 217 amends subsection 17(1) of the Hearing Services Administration Act to replace ‘written instrument’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 218 - Subsection 17(7)

Item 218 repeals subsection 17(7) of the Hearing Services Administration Act. Subsection 17(7) provides that an instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 217.

High Court of Australia Act 1979

Item 219 - Subsection 19(2)

Item 219 amends subsection 19(2) of the High Court of Australia Act 1979 to replace ‘in writing’ with ‘, by legislative instrument,’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 220 - Subsections 19(3), (4) and (5)

Item 220 repeals subsections 19(3), (4) and (5) of the High Court of Australia Act and inserts a new subsection (3) which provides that directions under subsection (2) commence at the start of the day after the day they are registered under the Legislation Act. This amendment removes a redundant reference to the Acts Interpretation Act and, read with the amendment in item 219, clarifies the status and commencement of an instrument made under subsection (2). This amendment does not change the legal effect of the Act, except to expressly apply the default commencement rule under new paragraph 12(1)(a) of the Legislation Act.

Horticulture Marketing and Research and Development Services Act 2000

Item 221 - Subsection 19(1)

Item 221 amends subsection 19(1) of the Horticulture Marketing and Research and Development Services Act 2000 to insert ‘, by legislative instrument,’ after the words ‘Secretary may’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 222 - Subsection 19(1) (note 1)

Item 222 repeals the note in subsection 19(1) of the Horticulture Marketing and Research and Development Services Act. The note explained that further provisions about orders are contained in section 35. This amendment is consequential to the amendments in items 227, 231 and 232.

Item 223 - Subsection 19(1) (note 2)

Item 223 amends subsection 19(1) of the Horticulture Marketing and Research and Development Services Act to replace ‘Note 2’ with ‘Note’. This amendment is consequential to the amendment in item 222.

Item 224 - Subsection 19(2)

Item 224 amends subsection 19(2) of the Horticulture Marketing and Research and Development Services Act to replace ‘on which the order is notified in the Gazette ’ with ‘that the order is registered under the Legislation Act 2003 ’. This amendment is consequential to the amendment in item 221, as the instrument will be published on the new Register and will not need to be notified in the Gazette .

Item 225 - Subsection 19(2) (note)

Item 225 repeals the note in subsection 19(2) of the Horticulture Marketing and Research and Development Services Act. The note is redundant following the amendments in item 221, 227, 231 and 232.

Item 226 - Subsection 19(3)

Item 226 repeals subsection 19(3) of the Horticulture Marketing and Research and Development Services Act. Subsection 19(3) refers to publication requirements and is redundant following the amendment in item 221.

Item 227 - At the end of section 19

Item 227 inserts subsection (5) at the end of section 19 of the Horticulture Marketing and Research and Development Services Act to provide that an order made under this section is taken to be an enactment for the purposes of the Administrative Appeals Tribunal Act 1975 . This is currently provided in subsection 35(5) of the Horticulture Marketing and Research and Development Services Act. This amendment, together with the amendment made by item 232, ensures provisions in relation to section 19 orders are consolidated within the section.

Item 228 - Subsection 20(1)

Item 228 amends subsection 20(1) of the Horticulture Marketing and Research and Development Services Act to insert the words ‘by legislative instrument,’ after the words ‘The Secretary may’. This amendment has the effect of expressly providing that an instrument made to revoke an Order made under section 19, is a legislative instrument. This amendment does not change the effect of the provision.

Item 229 - Subsections 20(2), (3) and (4)

Item 229 repeals subsections 20(2), (3) and (4) of the Horticulture Marketing and Research and Development Services Act, and inserts a new subsection (2). Subsections 20(2), (3) and (4) provide requirements for the publication and time of effect of a revocation under subsection 20(1).

New subsection 20(2) provides that the revocation has effect from a day specified in the revocation, which must be after the day that the revocation is registered under the Legislation Act. This amendment retains the current approach for the time of effect of a revocation.

Item 230 - Subsection 35(1)

Item 230 amends subsection 35(1) of the Horticulture Marketing and Research and Development Services Act to insert the words ‘, by legislative instrument,’ after the words ‘Secretary may’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 231 - Subsections 35(2), (3) and (4)

Item 231 repeals subsections 35(2), (3) and (4) of the Horticulture Marketing and Research and Development Services Act. The reference to the Acts Interpretation Act in subsection 35(2) is redundant following the amendment in item 230. Subsections 35(3) and (4) are redundant as they include a reference to the Statutory Rules Publication Act which has been repealed.

Item 232 - Subsection 35(5)

Item 232 amends subsection 35(5) of the Horticulture Marketing and Research and Development Services Act to omit ‘or section 19’. This amendment is consequential to the amendment in item 227.

Imported Food Control Act 1992

Item 233 - Subsection 3(1) (paragraphs (a) and (c) of the definition of examinable food)

Item 233 amends Subsection 3(1) (paragraphs (a) and (c) of the definition of examinable food) of the Imported Food Control Act 1992 , to replace ‘under paragraph 16(2)(a)’ with ‘made for the purposes of paragraph 16(2)(a)’. This amendment clarifies that orders referenced in these paragraphs are made for the purposes of paragraph 16(2)(a) rather than are made under paragraph 16(2)(a). This amendment is consequential to the amendment made by item 236.

Item 234 - Paragraph 16(2)(a)

Item 234 amends paragraph 16(2)(a) of the Imported Food Control Act to omit the words ‘and, from time to time, to vary orders so made’, which are unnecessary. This is further clarified in the note in new subsection 16(5) (item 236).

Item 235 - Paragraph 16(2)(b)

Item 235 amends paragraph 16(2)(b) of the Imported Food Control Act to replace ‘under’ with ‘for the purposes of’. This amendment clarifies that orders are made for the purposes of paragraph 16(2)(a) rather than are made under paragraph 16(2)(a).

 

 

Item 236 - At the end of section 16

Item 236 adds new subsection (5) at the end of section 16 of the Imported Food Control Act to provide that an order made by the Minister for the purposes of paragraph (2)(a) is a legislative instrument. This item also includes a note to provide that the order may be varied or revoked by the Minister in the same way as it is made, and subject to the same conditions (see subsection 33(3) of the Acts Interpretation Act). This amendment has the effect of expressly providing that the instrument is a legislative instrument. This includes an instrument of variation or revocation. This clarifies the status of an Order to reflect its current status and does not change the effect of the provision.

Item 237 - Section 17

Item 237 repeals section 17 of the Imported Food Control Act and inserts a new section 17. The repeal of section 17 removes a redundant reference to the Acts Interpretation Act following the amendment in item 236, and references to the Statutory Rules Publication Act which has been repealed.

New section 17 retains the effect of existing subsection 17(1) to provide that the Minister must not make an order for the purposes of paragraph 16(2)(a) without first consulting Food Standards Australia New Zealand. This item also inserts a note to provide that the order may be varied or revoked by the Minister in the same way as it is made, and subject to the same conditions (see subsection 33(3) of the Acts Interpretation Act).

Industrial Chemicals (Notification and Assessment) Act 1989

Item 238 - Subsection 105(1)

Item 238 amends subsection 105(1) of the Industrial Chemicals (Notification and Assessment) Act 1989 to replace by instrument published in the Chemical Gazette’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 239 - Subsection 105(2)

Item 239 repeals subsection 105(2) of the Industrial Chemicals (Notification and Assessment) Act and inserts a new subsection 105(2). Subsection 105(2) provides that the instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 238.

New subsection 105(2) provides that in addition to the requirement under the Legislation Act that the instrument be registered on the new Register, a copy must also be published in the Chemical Gazette. A failure to publish a copy of the instrument in the Chemical Gazette will not affect the validity or enforceability of the instrument. This reflects the existing publication practice.



 

Interactive Gambling Act 2001

Item 240 - Subsection 9A(1)

Item 240 amends subsection 9A(1) of the Interactive Gambling Act 2001 to replace ‘writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 241 - Subsection 9A(6)

Item 241 repeals subsection 9A(6) of the Interactive Gambling Act. Subsection 9A(6) provides that an instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 240.

Item 242 - Subsection 10(1)

Item 242 amends subsection 10(1) of the Interactive Gambling Act to replace ‘writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 243 - Subsection 10(3)

Item 243 repeals subsection 10(3) of the Interactive Gambling Act. Subsection 10(3) provides that a determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 242.

Item 244 - Subsection 24(5)

Item 244 amends subsection 24(5) of the Interactive Gambling Act to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 245 - Subsection 24(7)

Item 245 repeals subsection 24(7) of the Interactive Gambling Act. Subsection 24(7) provides that an instrument under subsection (5) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 244.

Item 246 - Subsection 31(1)

Item 246 amends subsection 31(1) of the Interactive Gambling Act to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 247 - Subsection 31(4)

Item 247 repeals subsection 31(4) of the Interactive Gambling Act. Subsection 31(4) provides that an instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 246.

Item 248 - Subsection 44(2)

Item 248 amends subsection 44(2) of the Interactive Gambling Act to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 249 - Subsection 44(4)

Item 249 repeals subsection 44(4) of the Interactive Gambling Act. Subsection 44(4) provides that a standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 248.

Item 250 - Subsection 45(2)

Item 250 amends subsection 45(2) of the Interactive Gambling Act to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 251 - Subsection 45(3)

Item 251 repeals subsection 45(3) of the Interactive Gambling Act. Subsection 45(3) provides that a standard under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 250.

Item 252 - Subsection 46(3)

Item 252 amends subsection 46(3) of the Interactive Gambling Act to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 253 - Subsection 46(5)

Item 253 repeals subsection 46(5) of the Interactive Gambling Act. Subsection 46(5) provides that a standard under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 252.

Item 254 - Subsection 47(3)

Item 254 amends subsection 47(3) of the Interactive Gambling Act to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 255 - Subsection 47(5)

Item 255 repeals subsection 47(5) of the Interactive Gambling Act. Subsection 47(5) provides that a standard under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 254.

Item 256 - Subsection 50(1)

Item 256 amends subsection 50(1) of the Interactive Gambling Act to replace ‘(1) The ACMA may, by written’ with ‘The ACMA may, by legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 257 - Subsection 50(2)

Item 257 repeals subsection 50(2) of the Interactive Gambling Act. Subsection 50(2) provides that an instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 256.

Item 258 - Subsection 51(1)

Item 258 amends subsection 51(1) of the Interactive Gambling Act to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 259 - Subsection 51(3)

Item 259 repeals subsection 51(3) of the Interactive Gambling Act. Subsection 51(3) provides that an instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 258.



 

National Blood Authority Act 2003

Item 260 - Paragraph 8(1)(j)

Item 260 amends paragraph 8(1)(j) of the National Blood Authority Act 2003 to replace ‘written notice’ with ‘notice under subsection (2)’. This amendment, read with the amendment in item 265, clarifies the status of an instrument made under this paragraph.

Item 261 - Subsection 8(2)

Item 261 repeals subsection 8(2) of the National Blood Authority Act and inserts a new subsection (2). Subsection 8(2) provides that a notice given under paragraph (1)(j) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 8(2) provides that the Minister may, by legislative instrument, make a notice for the purposes of paragraph (1)(j). This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. A user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 262 - Paragraph 13(1)(d)

Item 262 amends paragraph 13(1)(d) of the National Blood Authority Act to replace ‘written notice’ with ‘notice under subsection (2)’. This amendment, read with the amendment in item 263, clarifies the status of an instrument made under this paragraph.

Item 263- Subsection 13(2)

Item 263 repeals subsection 13(2) of the National Blood Authority Act and inserts a new subsection 13(2). Subsection 13(2) provides that a notice given under paragraph (1)(d) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 13(2) provides that the Minister may, by legislative instrument, make a notice for the purposes of paragraph (1)(d). This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 264 - Subsections 18(1) and (3)

Item 264 amends subsections 18(1) and (3) of the National Blood Authority Act to replace ‘written determination made by the Minister’ with ‘determination made by the Minister under subsection (4)’. This amendment, read with the amendment in item 265, clarifies the status of an instrument made under these subsections.

Item 265 - Subsection 18(4)

Item 265 repeals subsection 18(4) of the National Blood Authority Act and inserts a new subsection 18(4). Subsection 18(4) provides that a determination made under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 18(4) provides that the Minister may, by legislative instrument, make a determination for the purposes of subsection (1) or (3). This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. A user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 266 - Subsection 22(1)

Item 266 amends subsection 22(1) of the National Blood Authority Act to replace ‘determine in writing’ with ‘, by legislative instrument, determine’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 267 - Subsection 22(3)

Item 267 repeals subsection 22(3) of the National Blood Authority Act. Subsection 22(3) provides that a determination made under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 266.

Item 268 - Subsections 30(1) and (2)

Item 268 amends subsections 30(1) and (2) of the National Blood Authority Act to replace ‘written determination made by the Minister’ with ‘determination made by the Minister under subsection (3)’. This amendment, read with the amendment in item 269, clarifies the status of an instrument made under this section.

Item 269 - Subsection 30(3)

Item 269 repeals subsection 30(3) of the National Blood Authority Act and inserts a new subsection 30(3). Subsection 30(3) provides that a determination made under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 30(3) provides that the Minister may, by legislative instrument, make a determination for the purposes of subsection (1) or (2). This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 270 - Subsections 39(1) and (3)

Item 270 amends subsections 39(1) and (3) of the National Blood Authority Act to replace ‘written determination made by the Minister’ with ‘determination made by the Minister under subsection (4)’. This amendment, read with the amendment in item 271, clarifies the status of an instrument made under this section.

Item 271 - Subsection 39(4)

Item 271 repeals subsection 39(4) of the National Blood Authority Act and inserts a new subsection 39(4). Subsection 39(4) provides that a determination made under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 39(4) provides that the Minister may, by legislative instrument, make a determination for the purposes of subsection (1) or (3). This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. A user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

National Environment Protection Measures (Implementation) Act 1998

Item 272 - Subsection 37(3)

Item 272 amends subsection 37(3) of the National Environment Protection Measures (Implementation) Act 1998 to replace ‘, by order published in the Gazette , prohibit or restrict’ with ‘, by legislative instrument, make an order that prohibits or restricts’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 273 - Subsection 37(4)

Item 273 repeals subsection 37(4) of the National Environment Protection Measures (Implementation) Act. Subsection 37(4) provides that an order made under subsection (3) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 272.

National Health Act 1953

Item 274 - Subsection 84(1) (definition of CTS claim )

Item 274 amends subsection 84(1) (definition of CTS claim) of the National Health Act 1953 to omit the words ‘of the National Health Act 1953 ’. This is a drafting correction to remove an unnecessary reference and it does not change the effect of the provision.

Item 275 - Subparagraph 86D(1)(b)(iii)

Item 275 amends subparagraph 86D(1)(b)(iii) of the National Health Act to replace ‘written determination made by the Minister for the purposes of this subsection’ with ‘determination made by the Minister under subsection (5)’. This amendment, read with the amendment in item 277, clarifies the status of an instrument made under this section.

Item 276 - Subsection 86D(5) (heading)

Item 276 repeals the heading of subsection 86D(5) of the National Health Act (‘Determinations are disallowable instruments’) and inserts a new heading, ‘Determinations are legislative instruments’. This amendment is consequential to the amendment in item 277.

Item 277 - Subsection 86D(5)

Item 277 repeals subsection 86D(5) of the National Health Act and inserts a new subsection 86D(5). Subsection 86D(5) provides that ministerial determinations for the purposes of subsection (1) are disallowable instruments within the meaning of section 46A of the Acts Interpretation Act.

New subsection 86D(5) provides that for the purposes of subsection (1), the Minister may, by legislative instrument, determine a person to be capable of giving an authorisation. This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 278 - Subsection 86E(1)

Item 278 amends subsection 86E(1) of the National Health Act to replace ‘by written instrument’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 279 - Subsection 86E(5)

Item 279 repeals subsection 86E(5) of the National Health Act. Subsection 86E(5) provides that ministerial determinations under subsection (1) are disallowable instruments within the meaning of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 278.

Item 280 - Subparagraph 88AA(1)(b)(iii)

Item 280 amends subparagraph 88AA(1)(b)(iii) of the National Health Act to replace ‘written determination made by the Minister for the purposes of this subsection’ with ‘determination made by the Minister under subsection (4)’. This amendment, read with the amendment in item 281, clarifies the status of an instrument made under this section.

Item 281 - Subsection 88AA(4)

Item 281 repeals subsection 88AA(4) of the National Health Act and inserts a new subsection 88AA(4). Subsection 88AA(4) provides that ministerial determinations for the purposes of subsection (1) are disallowable instruments within the meaning of section 46A of the Acts Interpretation Act.

New subsection 88AA(4) provide that, for the purposes of subsection (1), the Minister may, by legislative instrument, determine a person to be capable of giving an authorisation. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 282 - Paragraph 90E(c)

Item 282 amends paragraph 90E(c) of the National Health Act to replace ‘under paragraph 92A(1)(f)’ with ‘for the purposes of paragraph 92A(1)(f)’. This amendment clarifies that a determination is made for the purposes of paragraph 92A(1)(f) rather than made under paragraph 92A(1)(f) and is consequential to the amendments made in items 286 and 287.

Item 283 - Paragraph 91(2)(c)

Item 283 amends paragraph 91(2)(c) of the National Health Act to replace ‘in writing by the Secretary for the purposes of this paragraph’ with ‘by the Secretary under subsection (3)’. This amendment, read with the amendment in item 284, clarifies the status of an instrument made under this section.

Item 284 - Subsection 91(3)

Item 284 repeals subsection 91(3) of the National Health Act and inserts a new subsection 91(3). Subsection 91(3) provides that a determination made for the purposes of paragraph (2)(c) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 91(3) provides that, for the purposes of paragraph (2)(c), the Secretary may, by legislative instrument, determine kinds of documentary evidence. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 285 - Paragraph 91(7)(d)

Item 285 amends paragraph 91(7)(d) of the National Health Act to replace ‘under paragraph 92A(1)(f)’ with ‘for the purposes of paragraph 92A(1)(f)’. This amendment clarifies that a determination is made for the purposes of paragraph 92A(1)(f) rather than made under paragraph 92A(1)(f) and is consequential to the amendments made in items 286 and 287.

Item 286 - At the end of paragraph 92A(1)(f)

Item 286 inserts the words ‘under subsection (1A)’ at the end of paragraph 92A(1)(f) of the National Health Act. This amendment, read with the amendment in item 287, clarifies the status of an instrument made under this section.

Item 287 - Subsection 92A(1A)

Item 287 repeals subsection 92A(1A) of the National Health Act and inserts a new 92(1A). Subsection 92A(1A) provides that a determination under paragraph (1)(f) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act.

New subsection 92A(1A) provides that, for the purposes of paragraph (1)(f), the Minister may, by legislative instrument, determine conditions. This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. A user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 288 - Subsection 98C(1)

Item 288 amends subsection 98C(1) of the National Health Act to replace ‘from time to time’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 289 - Section 98D

Item 289 repeals section 98D of the National Health Act. Section 98D provides for the form and date of operation of determinations under section 98C. This section is redundant following the amendment in item 288.

Item 290 - Subsection 99(8)

Item 290 amends subsection 99(8) of the National Health Act to replace ‘by written determination’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 291 - Subsection 99(9)

Item 291 repeals subsection 99(9) of the National Health Act. Subsection 99(9) provides that ministerial determinations for the purposes of subsection (8) are disallowable instruments within the meaning of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 290.

Item 292 - Subsection 99AAC(2)

Item 292 amends subsection 99AAC(2) of the National Health Act to replace ‘determine, in writing,’ with ‘, by legislative instrument, determine’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 293 - Subsection 99AAC(3)

Item 293 repeals subsection 99AAC(3) of the National Health Act. Subsection 99AAC(3) provides that a determination under subsection (2) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 292.

Item 294 - Subsection 99L(1)

Item 294 amends subsection 99L(1) of the National Health Act to replace ‘(1) The Minister must, by writing’ with ‘The Minister must, by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 295 - Subsection 99L(2)

Item 295 repeals subsection 99L(2) of the National Health Act. Subsection 99L(2) provides that a determination under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 294.

Item 296 - Subsections 99ZS(1) and (2)

Item 296 amends subsections 99ZS(1) and (2) of the National Health Act to replace ‘notice in writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 297 - Subsection 99ZS(3)

Item 297 amends subsection 99ZS(3) of the National Health Act to replace ‘written notice’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 298 - Subsections 99ZS(4) and (5)

Item 298 repeals subsections 99ZS(4) and (5) of the National Health Act and inserts a new subsection 99ZS(4). Subsection 99ZS(4) provides that guidelines are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act and subsection 99ZS(5) provides for when guidelines take effect.

New subsection 99ZS(4) provides for when Guidelines take effect from, with reference to the Legislation Act. This amendment retains the effect of the provision, in terms of when guidelines take effect.

Item 299 - Section 139B

Item 299 repeals section 139B of the National Health Act. Section 139B provides that certain instruments are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. This section is redundant following the amendment in item 288.

National Transmission Network Sale Act 1998

Item 300 - Section 3

Item 300 amends section 3 of the National Transmission Network Sale Act 1998 to replace ‘In this Act, unless the contrary intention appears:’ with ‘(1) In this Act:’. This is a consequential amendment following the amendment in item 303.

Item 301 - Section 3 (definition of declared remote area )

Item 301 amends the definition of declared remote area in section 3 of the National Transmission Network Sale Act to replace ‘, in writing,’ with ‘under subsection (2)’. This amendment, read with the amendment in item 303, clarifies the status of an instrument made under this section.

Item 302 - Section 3 (paragraph (b) of the definition of emergency service organisation )

Item 302 amends the definition of emergency remote area in section 3 of the National Transmission Network Sale Act to replace ‘, in writing,’ with ‘under subsection (2)’. This amendment, read with the amendment in item 303, clarifies the status of an instrument made under this section.

Item 303 - At the end of section 3

Item 303 inserts new subsection (2) at the end of section 3 of the National Transmission Network Sale Act to provide that the Minister may, by legislative instrument, specify certain things as provided for in the definitions of declared remote area and emergency service organisation . This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 304 - Subsection 16(5)

Item 304 amends subsection 16(5) of the National Transmission Network Sale Act to replace ‘, in writing,’ with ‘under subsection (5A)’. This amendment, read with the amendment in item 305, clarifies the status of an instrument made under this section.

Item 305 - After subsection 16(5)

Item 305 inserts new subsection (5A) after subsection 16(5) of the National Transmission Network Sale Act to provide that the Minister may, by legislative instrument, specify a level for the purposes of this section. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 306 - Subsection 18(5)

Item 306 amends subsection 18(5) of the National Transmission Network Sale Act to replace ‘in the Gazette ’ with ‘under subsection (6)’. This amendment, read with the amendment in item 307, clarifies the status of an instrument made under this section.

Item 307 - At the end of section 18

Item 307 inserts new subsection (6) at the end of section 18 of the National Transmission Network Sale Act to provide that the Minister may, by legislative instrument, give a notice for the purposes of subsection (5) in relation to assets. This amendment has the effect of expressly conferring power on the Minister to make a legislative instrument. A user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 308 - Section 29

Item 308 repeals section 29 of the National Transmission Network Sale Act. Section 29 provides that certain instruments made under the Act are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. This section is redundant following the amendments in items 303, 305 and 307.

National Transport Commission Act 2003

Item 309 - Subsection 7(3)

Item 309 amends the National Transport Commission Act 2003 to replace ‘section 49A of the Acts Interpretation Act 1901 ’ with ‘section 14 of the Legislation Act 2003 ’. These provisions relate to prescribing matters by reference to other instruments. This amendment updates the reference to the Acts Interpretation Act to reference the Legislation Act. This amendment does not change the effect of the provision.



 

Item 310 - Subsection 7(4)

Item 310 repeals subsection 7(4) of the National Transport Commission Act which provides that subsections 48(3) to (7) and sections 48A to 49 of the Acts Interpretation Act do not apply to regulations made for the purposes of this section. These references to the Acts Interpretation Act are redundant because the regulations made under the National Transport Commission Act were made exempt from disallowance by item 7 of Schedule 2 to the Legislative Instruments Regulations. This exemption will be retained in the new Legislation Act regime.

Primary Industries Levies and Charges Collection Act 1991

Item 311 - Subsections 31(3) to (5)

Item 311 repeals subsections 31(3) to (5) of the Primary Industries Levies and Charges Collection Act 1991 which include redundant references to the Acts Interpretation Act and to the Statutory Rules Publication Act (which has been repealed), and inserts a new subsection 31(3).

New subsection 31(3) provides than an order is a legislative instrument. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Primary Industry Councils Act 1991

Item 312 - Subsections 38(3) to (5)

Item 312 repeals subsections 38(3) to (5) of the Primary Industry Councils Act 1991 which include redundant references to the Acts Interpretation Act and to the Statutory Rules Publication Act (which has been repealed), and inserts a new subsection 38(3).

New subsection 38(3) provides than an order is a legislative instrument. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Radiocommunications Act 1992

Item 313 - Subsections 30(1) and 32(1)

Item 313 amends subsections 30(1) and 32(1) of the Radiocommunications Act 1992 to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument within this provision rather than in section 35 (see item 314). This amendment does not change the effect of the provision.

Item 314 - Section 35

Item 314 repeals section 35 of the Radiocommunications Act. Section 35 provides that plans under section 30 are legislative instruments. This provision is redundant following the amendment in item 313.

 

Item 315 - Subsection 132(1)

Item 315 amends subsection 132(1) of the Radiocommunications Act to replace ‘notice published in the Gazette ’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument within this provision rather than in section 139 (see item 317). This amendment does not change the effect of the provision.

Item 316 - Subsection 133(3)

Item 316 repeals subsection 133(3) of the Radiocommunications Act which provides that a notice published in the Gazette must include all the conditions of a licence. This provision is redundant following the amendment in item 313.

Item 317 - Section 139

Item 317 repeals section 139 of the Radiocommunications Act. Section 139 provides that a class licence (issued under section 132(1)) is a legislative instrument. This provision is redundant following the amendment in item 315.

Item 318 - Subsection 182(1)

Item 318 amends subsection 182(1) of the Radiocommunications Act to replace ‘by notice published in the Gazette , require’ with ‘by legislative instrument, give notice requiring’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 319 - Subsection 182(5)

Item 319 repeals subsection 182(5) of the Radiocommunications Act. Subsection 182(5) provides that a notice is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 318.

Item 320 - Subsection 187A(1)

Item 320 amends subsection 187A(1) of the Radiocommunications to replace ‘publishes’ with ‘gives’. This amendment is consequential to the amendment in item 318.

Item 321 - Subsection 190(1)

Item 321 amends subsection 190(1) of the Radiocommunications Act to replace ‘by notice published in one or more newspapers circulating generally in the capital city of each State and Territory,’ with ‘by legislative instrument,’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

 

 

Item 322 - Subsection 190(1)

Item 322 amends subsection 190(1) of the Radiocommunications Act to replace the last reference to ‘notice’ with ‘declaration’. This amendment clarifies that an instrument made under this subsection is a declaration.

Item 323 - After subsection 190(1)

Item 327 inserts new subsection 190(1A) after subsection 190(1) of the Radiocommunciations Act. New Subsection 190(1A) provides that a declaration under subsection (1) must be published on the ACMA’s website, and in one or more other forms that are readily accessible by the public. The example clarifies that the second form of publication can be on a website other than the ACMA’s website.

Item 324 - Subsections 190(3) and (4)

Item 324 repeals subsections 190(3) and (4) of the Radiocommunications Act. Subsection 190(3) provides a redundant reference to the Acts Interpretation Act (following the amendment in item 321) and subsection 190(4) provides a redundant reference to the Statutory Rules Publication Act (which has been repealed).

Telecommunications Act 1997

Item 325 - Subsections 63(1), (2), (3), (5) and (6)

Item 325 amends subsections 63(1), (2), (3), (5) and (6) of the Telecommunications Act 1997 to replace ‘by written instrument’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 326 - Subsections 63(10), (11) and (13)

Item 326 repeals subsections 63(10), (11), and (13) of the Telecommunications Act. These subsections are redundant following the amendment in item 325 as they include requirements for gazettal and date of effect, and reference section 46A of the Acts Interpretation Act.

Item 327 - Subsection 376(1)

Item 327 amends subsection 376(1) of the Telecommunications Act to replace ‘by written instrument’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 328 - Subsections 376(5) and (6)

Item 328 repeals subsections 376(5) and (6) of the Telecommunications Act. These subsections are redundant following the amendment in item 327 as they include requirements for date of effect of an instrument with reference to notification in the Gazette , and reference section 46A of the Acts Interpretation Act.

 

Item 329 - Subsection 380(1)

Item 329 amends subsection 380(1) of the Telecommunications Act to replace ‘by written instrument’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 330 - Subsections 380(4) and (5)

Item 330 repeals subsections 380(4) and (5) of the Telecommunications Act. These subsections are redundant following the amendment in item 329 as they include requirements for date of effect of an instrument with reference to notification in the Gazette , and reference section 46A of the Acts Interpretation Act.

Item 331 - Subsection 384(1)

Item 331 amends subsection 384(1) of the Telecommunications Act to replace ‘by written instrument’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 332 - Subsections 384(7) and (8)

Item 332 repeals subsections 384(7) and (8) of the Telecommunications Act. These subsections are redundant following the amendment in item 331 as they include requirements for date of effect of an instrument with reference to notification in the Gazette , and reference section 46A of the Acts Interpretation Act.

Item 333 - Subsection 419(1)

Item 333 amends subsection 419(1) of the Telecommunications Act to replace ‘by notice in the Gazette ’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 334 - Subsection 419(4)

Item 334 repeals subsection 419(4) of the Telecommunications Act. Subsection 419(4) provides that a declaration under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 333.

Item 335 - Subsection 450(1)

Item 335 amends subsection 450(1) of the Telecommunications Act to replace ‘written’ with ‘legislative’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 336 - Subsection 450(4)

Item 336 repeals subsection 450(4) of the Telecommunications Act. Subsection 450(4) provides that an instrument under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 335.

Telstra Corporation Act 1991

Item 337 - Subsection 8AUA(1)

Item 337 amends subsection 8AUA(1) of the Telstra Corporation Act 1991 to replace ‘by written instrument’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 338 - Subsection 8AUA(3)

Item 338 repeals subsection 8AUA(3) of the Telstra Corporation Act. Subsection 8AUA(3) provides that an instrument under subsection (1) is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 337.

Tobacco Advertising Prohibition Act 1992

Item 339 - Subsection 17(4)

Item 339 amends subsection 17(4) of the Tobacco Advertising Prohibition Act 1992 to replace ‘writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 340 - Subsection 17(5)

Item 340 repeals subsection 17(5) of the Tobacco Advertising Prohibition Act. Subsection 17(5) provides that an instrument under subsection (4) determining guidelines is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 339.

Item 341 - Subsection 18(5)

Item 341 amends subsection 18(5) of the Tobacco Advertising Prohibition Act to replace ‘writing’ with ‘legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 342 - Subsection 18(6)

Item 342 repeals subsection 18(6) of the Tobacco Advertising Prohibition Act. Subsection 18(6) provides that an instrument under subsection (5) determining guidelines is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 341.

Trade Representatives Act 1933

Item 343 - Subsection 11(1)

Item 343 amends subsection 11(1) of the Trade Representatives Act 1933 to replace ‘make determinations in writing’ with ‘, by legislative instrument, make determinations’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 344 - Subsections 11(5), (6), (7), (8) and (9)

Item 344 repeals subsections 11(5), (6), (7), (8), and (9) of the Trade Representatives Act, which provide requirements for the gazettal, commencement and citation of determinations made under subsection 11(1). These provisions are redundant following the amendment in item 343, and reliance on the requirements of the Legislation Act.

Item 345 - Section 11A

Item 345 repeals section 11A of the Trade Representatives Act. This section includes redundant references to the Acts Interpretation Act (following the amendment in item 343) and to the Statutory Rules Publication Act (which has been repealed).

Wool Services Privatisation Act 2000

Item 346 - Subsection 30(1)

Item 346 amends subsection 30(1) of the Wool Services Privatisation Act 2000 to replace ‘in writing’ with ‘by legislative instrument’. This amendment has the effect of expressly providing that the instrument is a legislative instrument. This means that the user does not need to refer to another Act to determine the status of the instrument. This amendment does not change the effect of the provision.

Item 347 - Subsection 30(3)

Item 351 repeals subsection 30(3) of the Wool Services Privatisation Act. Subsection 30(3) provides that a declaration under this section is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. This reference to the Acts Interpretation Act is redundant following the amendment in item 346.

Part 3—Saving and transitional

Item 348 - Saving - validity and enforcement of instruments

Item 348 provides that an amendment of an Act made by Part 2 of this Schedule does not affect the validity or enforceability of an instrument made under that Act before the commencement of this Schedule.

 

Item 349 - Transitional—change of provision under which instrument is made

Item 349 provides transitional arrangements for instruments made under a provision of an Act before the amendments made by Part 2, and that following the commencement of the amendments made by Part 2, the provision changes.

This provides that an instrument made expressly or by implication and in force before the commencement of the amendments in Part 2, continues in force, and can be amended or repealed as if it has been made following the commencement of amendments in Part 2.

This transitional will apply for example, to the amendments in items 282-287 to the National Health Act, to ensure that an instrument that has already been made under paragraph 92A(1)(f) continues in force and can be amended or repealed as it is had been made under the amended section 92A(1A).