An Act relating to the making, registration, Parliamentary
scrutiny and periodic repeal of legislative instruments, and for related
purposes
Part 1—Preliminary
1
Short title [see
Note 1]
This Act may be cited as the Legislative
Instruments Act 2003.
2
Commencement
(1) Each provision of this Act specified in
column 1 of the table commences, or is taken to have commenced, on the day or
at the time specified in column 2 of the table.
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Commencement
information
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Column 1
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Column 2
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Column 3
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Provision(s)
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Commencement
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Date/Details
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1. Sections 1, 2 and 2A and anything in this Act not
elsewhere covered by this table
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The day on which this Act receives the Royal Assent
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17 December 2003
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2. Sections 3 to 62
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A single day fixed by Proclamation, subject to subsections (3)
and (4)
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1 January 2005
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3. Schedule 1
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Immediately after the commencement of Schedule 1 to
the Legislative Instruments (Transitional Provisions and Consequential
Amendments) Act 2003
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1 January 2005
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Note: This table relates only to the provisions of
this Act as originally passed by the Parliament and assented to. It will not be
expanded to deal with provisions inserted in this Act after assent.
(2) Column 3 of the table is for additional
information that is not part of this Act. This information may be included in
any published version of this Act.
(3) The date fixed by Proclamation for the
purposes of item 2 of the table must be a first day of January or a first
day of July occurring after the day on which this Act receives the Royal
Assent.
(4) If the provisions covered by item 2
of the table do not commence under subsection (1) within the period of 12
months beginning on the day on which this Act receives the Royal Assent, they
commence on the first day of January or of July, whichever next follows the end
of that period.
2A
Schedule(s)
Each Act that is specified in a Schedule
to this Act is amended or repealed as set out in the applicable items in the
Schedule concerned, and any other item in a Schedule to this Act has effect
according to its terms.
3
Object
(1) The object of this Act is to provide a
comprehensive regime for the management of Commonwealth legislative instruments
by:
(a) establishing the Federal Register
of Legislative Instruments as a repository of Commonwealth legislative
instruments, explanatory statements and compilations; and
(b) encouraging rule‑makers to
undertake appropriate consultation before making legislative instruments; and
(c) encouraging high standards in the
drafting of legislative instruments to promote their legal effectiveness, their
clarity and their intelligibility to anticipated users; and
(d) improving public access to
legislative instruments; and
(e) establishing improved mechanisms
for Parliamentary scrutiny of legislative instruments; and
(f) establishing mechanisms to ensure
that legislative instruments are periodically reviewed and, if they no longer
have a continuing purpose, repealed.
4
Definitions
(1) In this Act, unless the contrary
intention appears:
ADJR Act means the Administrative
Decisions (Judicial Review) Act 1977.
certified true copy, in relation to a
legislative instrument, means a copy of the instrument certified to be a true
copy of the full text of the instrument as it was made.
commencing day means the day on which
section 20 of this Act commences.
compilation, in relation to a legislative
instrument that has, with effect from a particular time, been amended by an Act
or Acts or by another legislative instrument or legislative instruments, means
the first‑mentioned legislative instrument as amended and in force at that
time.
enabling legislation, in relation to a
legislative instrument, means the Act or legislative instrument, or the part of
an Act or of a legislative instrument, that authorises the making of the
legislative instrument concerned.
explanatory statement, in relation to
a legislative instrument, means a statement that:
(a) is prepared by the rule‑maker; and
(b) explains the purpose and operation
of the instrument; and
(c) if any documents are incorporated
in the instrument by reference—contains a description of the documents so incorporated
and indicates how they may be obtained; and
(d) if consultation was undertaken
under section 17 before the instrument was made—contains a description of
the nature of that consultation; and
(e) if no such consultation was
undertaken—explains why no such consultation was undertaken; and
(f) contains such other information
as is prescribed.
inappropriate use of gender‑specific language,
in relation to a legislative instrument, means use of such language in the
legislative instrument in circumstances where it is not necessary to identify
persons by their sex.
instrument does not include an explanatory
statement or a compilation.
legislative instrument
has the meaning given by section 5 and includes instruments that are
declared to be legislative instruments under section 6 but does not
include:
(a) instruments that are declared not
to be legislative instruments under section 7; or
(b) instruments to which section 9
applies.
lodge, in respect of a legislative
instrument, explanatory statement, compilation or other document required to be
lodged under Part 4, means lodge in such manner, and in such form or
forms, as this Act or the regulations specify.
making, in relation to an instrument that
will become, or that is, a legislative instrument, means the signing, sealing
or other endorsement of the instrument by the person or body empowered to make
it whereby it becomes or became that legislative instrument.
original legislative instrument means:
(a) the legislative instrument made by
the rule‑maker; or
(b) an instrument prescribed by the
regulations.
Note: Examples of a legislative instrument made by
the rule‑maker are a signed or sealed instrument.
register, in relation to an instrument, an
explanatory statement, or a compilation, means recording the instrument,
explanatory statement or compilation in the Register in electronic form.
Register means the Federal Register of
Legislative Instruments required to be maintained under section 20.
responsible Minister, in relation to a
legislative instrument or a proposed legislative instrument, means the Minister
administering the enabling legislation for that instrument.
rule‑maker has the meaning given by subsection (3).
Secretary means the Secretary of the
Department.
State includes the Australian Capital Territory
and the Northern Territory.
working day means a day that is not a
Saturday, a Sunday or a public holiday in the Australian Capital Territory.
(2) In this Act, if an act or thing is
required to be done within a specified number of working days after a
particular event, that act or thing can be done at any time after the event
during normal business hours:
(a) on the day on which the event
occurred (if it is a working day); or
(b) on a working day included in the
specified number of working days next following that day.
(3) In this Act, unless the contrary
intention appears:
(a) a reference to a rule‑maker, in
relation to a legislative instrument or a proposed legislative instrument, is a
reference to:
(i) if the legislative
instrument is, or will be, authorised to be made by the Governor‑General and
the reference appears in section 13—the Governor‑General; and
(ii) if the legislative
instrument is, or will be, authorised to be made by the Governor‑General and
the reference appears in any other provision of this Act—the responsible
Minister; and
(iii) if the legislative
instrument is, or will be, authorised to be made by a person other than the
Governor‑General or by a body—that other person or body; and
(b) a reference in this Act to a rule‑maker
who makes, or proposes to make, a legislative instrument includes a reference
to the person who would be taken to be the rule‑maker of the instrument (if the
instrument were made) whether or not that person actually makes the instrument
concerned.
5 Definition—a
legislative instrument
(1) Subject to sections 6, 7 and 9, a legislative
instrument is an instrument in writing:
(a) that is of a legislative
character; and
(b) that is or was made in the
exercise of a power delegated by the Parliament.
(2) Without
limiting the generality of subsection (1), an instrument is taken to be of
a legislative character if:
(a) it determines the law or alters
the content of the law, rather than applying the law in a particular case; and
(b) it has the direct or indirect
effect of affecting a privilege or interest, imposing an obligation, creating a
right, or varying or removing an obligation or right.
(3) An instrument that is registered is
taken, by virtue of that registration and despite anything else in this Act, to
be a legislative instrument.
(4) If some provisions of an instrument are
of a legislative character and others are of an administrative character, the
instrument is taken to be a legislative instrument for the purposes of this
Act.
6
Instruments declared to be legislative instruments
Without limiting the generality of
subsection 5(1), each of the following instruments is, subject to sections 7
and 9, a legislative instrument:
(a) an instrument:
(i) made in the exercise
of a power delegated by the Parliament before, on or after the commencing day;
and
(ii) described as a
regulation by the enabling legislation;
(b) an instrument, other than a
regulation:
(i) made in the exercise
of a power delegated by the Parliament before the commencing day; and
(ii) required to be printed
and sold as a statutory rule under subsection 5(1) of the Statutory Rules
Publication Act 1903 as in force at any time before the commencing day;
(c) an instrument:
(i) made in the exercise
of a power delegated by the Parliament before, on or after the commencing day
in an Act providing for the government of a non‑self‑governing Territory; and
(ii) described in that Act
as an Ordinance or as a rule, regulation or by‑law made under such an
Ordinance;
(d) an instrument made in the exercise
of a power delegated by the Parliament before the commencing day and, in
accordance with a provision of the enabling legislation:
(i) declared to be a
disallowable instrument for the purposes of section 46A of the Acts
Interpretation Act 1901 as in force at any time before the commencing day;
or
(ii) otherwise able to be
disallowed under Part XII of the Acts Interpretation Act 1901 as in
force at any time before the commencing day;
(e) a Proclamation made before, on or
after the commencing day under enabling legislation.
7
Instruments declared not to be legislative instruments
(1) An instrument is not a legislative
instrument for the purposes of this Act if:
(a) it is included in the table below;
or
(b) it is made under an Act or a disallowable
legislative instrument:
(i) that first authorised
the making of the first‑mentioned instrument on or after the commencing day;
and
(ii) that declared the
first‑mentioned instrument not to be a legislative instrument for the purposes
of this Act.
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Instruments that are
not legislative instruments for the purposes of the Act
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Item
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Particulars of
instrument
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1
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Instruments (other than regulations and other instruments
that, immediately before the commencing day, are disallowable) made under the
Air Navigation Act 1920, or under the regulations made under that Act,
relating to aviation security
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2
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Commissioner’s orders under section 38 of the Australian
Federal Police Act 1979
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4
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Guidelines under section 8A of the Australian
Security Intelligence Organisation Act 1979
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5
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Ministerial directions to:
(a) a Commonwealth company within the meaning of section 34
of the Commonwealth Authorities and Companies Act 1997; or
(b) a Commonwealth authority within the meaning of section 7
of that Act;
other than any such direction:
(d) that is required to be laid before the Houses of the
Parliament under the legislation that authorises the giving of the
directions; or
(e) the full text of which is required to be published in the
Gazette or elsewhere under that legislation
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6
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Instruments (other than regulations and other instruments
that, immediately before the commencing day, are disallowable) that are made
under the Corporations Act 2001 and that, in relation to:
(a) a specified person (other than a person specified by
membership of a class) or to persons associated with that specified person;
or
(b) a specified facility (other than a facility specified by
membership of a class); or
(c) a specified financial product (other than a product
specified by membership of a class);
have the effect of:
(d) exempting the person, facility or product from the rules
under the Act; or
(e) modifying the operation of the rules under the Act in
their application to the person, facility or product
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7
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Determinations made under section 273 of the Customs
Act 1901
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8
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Instructions under section 9A of the Defence Act
1903
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9
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Determinations made under section 58B or 58H of the Defence
Act 1903
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10
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Legal Services Directions issued under paragraph
55ZF(1)(b) of the Judiciary Act 1903
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12
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Designations, or revocations of designations, made under
section 11 of the Payment Systems (Regulation) Act 1998
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13
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Instruments made under section 72 of the Public
Service Act 1999
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14
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Laws of a self‑governing Territory, other than:
(a) Ordinances made under subsection 12(1) of the Seat of
Government (Administration) Act 1910 that have not become enactments (as
defined in the Australian Capital Territory (Self‑Government) Act 1988);
or
(b) Ordinances made under section 27 of the Norfolk Island Act 1979; or
(c) rules, regulations and by‑laws made under Ordinances
described in paragraph (a) or (b)
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15
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Instruments (other than regulations and other instruments
that, immediately before the commencing day, are disallowable) that are made
under the Superannuation Industry (Supervision) Act 1993 and that, in
relation to:
(a) a specified person (other than a person specified by
membership of a class) or to persons associated with that specified person;
or
(b) a specified financial product (other than a product
specified by membership of a class);
have the effect of:
(c) exempting the person or product from the rules under the
Act; or
(d) modifying the operation of the rules under the Act in
their application to the person or product
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16
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Private rulings given under the Taxation Administration
Act 1953
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17
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Public rulings made under the Taxation Administration
Act 1953
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18
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Fair work instruments (within the meaning of the Fair
Work Act 2009)
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18A
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Transitional instruments and Division 2B State
instruments (within the meaning of the Fair Work (Transitional Provisions
and Consequential Amendments) Act 2009)
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19
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Decisions and orders of Fair Work Australia
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19A
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Orders made by the Australian Industrial Relations
Commission in proceedings under the Workplace Relations Act 1996 or
the Fair Work (Transitional Provisions and Consequential Amendments) Act
2009
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19B
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Decisions of the Australian Fair Pay Commission
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20
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Instruments that relate to terms and conditions of
employment of persons, or to the terms and conditions of service of persons as
members or special members of the Australian Federal Police, other than:
(a) regulations; or
(b) instruments that are declared to be disallowable
instruments under the enabling legislation; or
(c) instruments that are made under section 23 or
subsection 24(3) of the Public Service Act 1999; or
(d) instruments that are made under section 23 or
subsection 24(3) of the Parliamentary Service Act 1999; or
(e) instruments that are required to be laid before the
Parliament under subsection 7(7) of the Remuneration Tribunal Act 1973
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21
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Instruments that comprise, in their entirety, directions
to delegates
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22
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Laws of a State or self‑governing Territory that apply in
a non‑self‑governing Territory and instruments made under those laws
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23
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Ordinances of the former Colony of Singapore that apply in
a non‑self‑governing Territory and instruments made under those Ordinances
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24
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Instruments
that are prescribed by the regulations for the purposes of this table
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(2) The inclusion of a kind of instrument in
the table in subsection (1) does not imply that an instrument of that kind
would be a legislative instrument if it were not included in the table.
(3) If:
(a) the making of an instrument is
authorised before the commencing day; and
(b) the instrument is of a kind included
in the table in subsection (1) or is not otherwise a legislative
instrument; and
(c) the instrument is required:
(i) to have its text, or
particulars of its making, published in the Gazette; or
(ii) to be laid before
either or both of the Houses of the Parliament without provision for its
disallowance;
that requirement is unaffected by this Act whether the
instrument is made before, on or after the commencing day.
8
Definition—power delegated by the Parliament
A reference in this Act to a power delegated
by the Parliament includes a reference to a power delegated by the Parliament
to a rule‑maker and then, under the authority of the Parliament, further
delegated by the rule‑maker to another rule‑maker.
9
Rules of court are not legislative instruments
Rules of court for the High Court, the
Federal Court of Australia, the Family Court of Australia and the Federal
Magistrates Court are not legislative instruments for the purposes of this Act.
Note: Rules of court are treated as if they were
legislative instruments by express amendment of the legislation providing for
them to be made.
10
Attorney‑General may certify whether an instrument is legislative instrument or
not
(1) If a person or body having authority to
make instruments of a particular kind is uncertain whether an instrument of
that kind:
(a) that was made before the
commencing day; and
(b) that is not registered;
is, or is not, a legislative instrument, the person or
body may, at any time before the day that would, under Division 3 of Part 4,
be the last day for lodging the instrument for registration if it were a
legislative instrument, apply, in writing, to the Attorney‑General to determine
the matter.
(2) If a
person or body having authority to make an instrument of a particular kind:
(a) proposes to make an instrument of
that kind on or after the commencing day; and
(b) is uncertain whether an instrument
of that kind will be, or will not be, a legislative instrument;
the person or body may apply, in writing, to the Attorney‑General
to determine the matter.
(3) The regulations may make provision in
relation to the content and form of, and manner of making, applications under subsections (1)
and (2).
(4) If application is made to the Attorney‑General
in respect of an instrument, or an instrument of a particular kind, the
Attorney‑General must:
(a) determine whether that instrument
is, or is not, or whether an instrument of that kind will be, or will not be, a
legislative instrument; and
(b) issue a certificate, in writing,
to that effect, and set out the reasons for that decision in the certificate;
and
(c) give a copy of the certificate to
the applicant.
(5) Subject only to its reconsideration in
the circumstance described in subsection 11(1), a certificate given by the
Attorney‑General under this section is, for all purposes, conclusive of the
question whether the instrument to which the certificate relates is, or is not,
or whether an instrument of the kind to which the certificate relates will be,
or will not be, a legislative instrument.
(6) A certificate issued under this section
is a legislative instrument and, as such, is required under Part 4 to be
registered.
11
Reconsideration and review of Attorney‑General’s certificate
(1) If:
(a) the Attorney‑General issues a certificate
under section 10 to the effect that a particular instrument is, or
is not, or that an instrument of a particular kind will be, or will not be, a
legislative instrument; and
(b) the
decision to issue the certificate is subsequently reviewed:
(i) by the Federal Court
of Australia or the Federal Magistrates Court under the ADJR Act; or
(ii) by the Federal Court
of Australia under section 39B of the Judiciary Act 1903; or
(iii) by the High Court of
Australia under paragraph 75(v) of the Constitution;
and an order is made by that
court to quash or to set aside the decision;
the Attorney‑General must reconsider the matter and issue
a replacement certificate.
(2) Despite any provision in a law of the
Commonwealth to the contrary, the order of a court referred to in paragraph (1)(b)
to quash or set aside the decision to issue a certificate under this section
takes effect only from the time immediately before the issue of the replacement
certificate.
(3) If the Attorney‑General decides, on
reconsideration of the matter:
(a) that an instrument that he or she
has certified to be a legislative instrument is not such an instrument; or
(b) that an instrument of a kind that
he or she has certified will be a legislative instrument will not be such an
instrument;
then, except in relation to an instrument to which
subsection 5(3) applies:
(c) that instrument, or an instrument
of that kind made after the issue of the original certificate, that would, but
for its registration, have been required to be notified in the Gazette,
must be so notified as soon as practicable but not later than 3 working days
after the issue of the replacement certificate; and
(d) if the instrument is so notified,
it is taken for all purposes always to have been notified as required; and
(e) any act or thing done in
accordance with the instrument, whether before or after its notification, is
validly done.
(4) If the Attorney‑General decides, on
reconsideration of the matter:
(a) that an instrument that he or she
certified not to be a legislative instrument is such an instrument; or
(b) that an instrument of a kind that
he or she has certified will not be a legislative instrument will be such an
instrument;
then:
(c) that instrument, or an instrument
of that kind made after the issue of the original certificate, must be
registered:
(i) if Division 3 of
Part 4 is applicable to the instrument—by the last day for lodgment for
registration under that Division; or
(ii) if that Division is
not applicable or that day has already passed—as soon as practicable but not
later than 3 working days after the issue of the replacement certificate; and
(d) if the instrument is so
registered, it is taken, for all purposes of this Act, to have been so
registered within the time required by this Act for its registration; and
(e) any act or thing done in
accordance with, or in reliance on, the instrument, whether before or after its
registration, is taken to have been validly done.
(5) If the Attorney‑General decides, on
reconsideration of the matter:
(a) that an instrument that he or she
has certified to be a legislative instrument is such an instrument; or
(b) that an instrument of a kind that
he or she has certified will be a legislative instrument will be such an
instrument;
then:
(c) the requirement for registration
of that instrument or of an instrument of that kind is unaffected; and
(d) any registration of that
instrument or of an instrument of that kind that is already effected remains
effective.
(6) If the Attorney‑General decides, on reconsideration
of the matter:
(a) that an instrument that he or she
has certified not to be a legislative instrument is not a legislative
instrument; or
(b) that an instrument of a kind that
he or she has certified will not be a legislative instrument will not be such
an instrument;
then:
(c) any requirement for notification
in the Gazette of the making of that instrument or of an instrument of
that kind is unaffected; and
(d) any notification in the Gazette
of the making of that instrument or of an instrument of that kind that is
already effected remains effective.
(7) In any case where a court referred to in paragraph (1)(b)
makes an order quashing or setting aside a decision to issue a certificate
under section 10, the Attorney‑General must:
(a) as soon as practicable after that
order is made, notify the person or body having authority to make the
instrument, in writing, of the court’s decision; and
(b) as soon as practicable after the
issue of a replacement certificate—give a copy of the replacement certificate
to the applicant for the original certificate and to the person or body having
authority to make the instrument.
(8) A replacement certificate issued under
this section is a legislative instrument and, as such, is required under Part 4
to be registered.
(9) Subsection (1) applies in respect of
a decision to issue a replacement certificate in the same manner as it applies
to the original decision to issue a certificate under section 10.
12
When do provisions of legislative instruments take effect?
(1) Subject to subsection (2), a
legislative instrument that is made on or after the commencing day, or a
particular provision of such an instrument, takes effect from:
(a) the day specified in the
instrument for the purposes of the commencement of the instrument or provision;
or
(b) the day and time specified in the
instrument for the purposes of the commencement of the instrument or provision;
or
(c) the day, or day and time, of the
commencement of an Act, or of a provision of an Act, or of the occurrence of an
event, that is specified in the instrument for the purposes of the commencement
of the instrument or provision; or
(d) in any other case—the first moment
of the day next following the day when it is registered.
Note: There are certain
instruments that, by virtue of subsection 55(2), are made before, but treated
as having been made on, the commencing day.
(2) A
legislative instrument, or a provision of a legislative instrument, has no
effect if, apart from this subsection, it would take effect before the date it
is registered and as a result:
(a) the rights of a person (other than
the Commonwealth or an authority of the Commonwealth) as at the date of
registration would be affected so as to disadvantage that person; or
(b) liabilities would be imposed on a
person (other than the Commonwealth or an authority of the Commonwealth) in
respect of anything done or omitted to be done before the date of registration.
(3) The effect of subsections (1) and
(2) on a legislative instrument is subject to any contrary provision for
commencement of the instrument in the enabling legislation for the instrument
if the enabling legislation is an Act or a provision of an Act.
13
Construction of legislative instruments
(1) If enabling legislation confers on a rule‑maker
the power to make a legislative instrument, then, unless the contrary intention
appears:
(a) the Acts Interpretation Act
1901 applies to any legislative instrument so made as if it were an Act and
as if each provision of the legislative instrument were a section of an Act;
and
(b) expressions used in any
legislative instrument so made have the same meaning as in the enabling
legislation; and
(c) any legislative instrument so made
is to be read and construed subject to the enabling legislation, and so as not
to exceed the power of the rule‑maker.
(2) If any legislative instrument would, but
for subsection (1), be construed as being in excess of the rule‑maker’s
power, it is to be taken to be a valid instrument to the extent to which it is
not in excess of that power.
(3) If enabling legislation confers on a rule‑maker
the power to make a legislative instrument:
(a) specifying, declaring or
prescribing a matter or thing; or
(b) doing anything in relation to a
matter or thing;
then, in exercising the power, the rule‑maker may identify
the matter or thing by referring to a class or classes of matters or things.
Note: This section has
a parallel, in relation to instruments
that are not legislative instruments, in section 46 of the Acts
Interpretation Act 1901.
14
Prescribing matters by reference to other instruments
(1) If enabling legislation authorises or
requires provision to be made in relation to any matter in a legislative
instrument, the legislative instrument may, unless the contrary intention
appears, make provision in relation to that matter:
(a) by applying, adopting or
incorporating, with or without modification, the provisions of any Act, or of
any disallowable legislative instrument, as in force at a particular time or as
in force from time to time; or
(b) subject to subsection (2), 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 first‑mentioned legislative instrument takes effect.
(2) Unless the contrary intention appears,
the legislative instrument may not make provision in relation to a matter by
applying, adopting or incorporating any matter contained in an instrument or
other writing as in force or existing from time to time.
Note: This section has
a parallel, in relation to instruments that are not legislative instruments, in
section 46AA of the Acts Interpretation Act 1901.
15
Effect of repeal of legislative instrument
The repeal of any legislative instrument,
or of any provision of a legislative instrument, does not, unless the contrary
intention appears in the Act or legislative instrument effecting the repeal:
(a) revive anything not in force or
existing at the time at which the repeal takes effect; or
(b) affect the previous operation of
the instrument or provision or anything duly done or suffered under the
instrument or provision; or
(c) affect any right, privilege,
obligation or liability acquired, accrued or incurred under the instrument or
provision; or
(d) affect any penalty, forfeiture or
punishment incurred in respect of any offence committed against the instrument
or provision; or
(e) affect any investigation, legal
proceeding or remedy in respect of any such right, privilege, obligation,
liability, penalty, forfeiture or punishment;
and any such investigation, legal proceeding or remedy may
be instituted, continued or enforced, and any such penalty, forfeiture or
punishment may be imposed, as if the repealing Act or instrument had not been
enacted or made.
Part 2—Drafting standards
16
Measures to achieve high drafting standards for legislative instruments
(1) To encourage high standards in the
drafting of legislative instruments, the Secretary must cause steps to be taken
to promote the legal effectiveness, clarity, and intelligibility to anticipated
users, of legislative instruments.
(2) The steps referred to in subsection (1)
may include, but are not limited to:
(a) undertaking or supervising the
drafting of legislative instruments; and
(b) scrutinising preliminary drafts of
legislative instruments; and
(c) providing advice concerning the
drafting of legislative instruments; and
(d) providing training in drafting and
matters related to drafting to officers and employees of other Departments or
agencies; and
(e) arranging the temporary secondment
to other Departments or agencies of APS employees performing duties in the
Department; and
(f) providing drafting precedents to
officers and employees of other Departments or agencies.
(3) The Secretary must also cause steps to be
taken:
(a) to prevent the inappropriate use
of gender‑specific language in legislative instruments; and
(b) to advise rule‑makers of
legislative instruments that have already been made if those legislative instruments
make inappropriate use of such language; and
(c) to notify both Houses of the
Parliament about any occasion when a rule‑maker is advised under paragraph (b).
Part 3—Consultation before making legislative instruments
17
Rule‑makers should consult before making legislative instruments
(1) Before a rule‑maker makes a legislative
instrument, and particularly where the proposed instrument is likely to:
(a) have a direct, or a substantial
indirect, effect on business; or
(b) restrict competition;
the rule‑maker must be satisfied that any consultation
that is considered by the rule‑maker to be appropriate and that is reasonably
practicable to undertake, has been undertaken.
(2) In determining whether any consultation
that was undertaken is appropriate, the rule‑maker may have regard to any
relevant matter, including the extent to which the consultation:
(a) drew on the knowledge of persons
having expertise in fields relevant to the proposed instrument; and
(b) ensured that persons likely to be
affected by the proposed instrument had an adequate opportunity to comment on
its proposed content.
(3) Without limiting, by implication, the
form that consultation referred to in subsection (1) might take, such
consultation could involve notification, either directly or by advertisement,
of bodies that, or of organisations representative of persons who, are likely
to be affected by the proposed instrument. Such notification could invite
submissions to be made by a specified date or might invite participation in
public hearings to be held concerning the proposed instrument.
Note: The definition of explanatory statement
in subsection 4(1) requires that the explanatory statement prepared in respect
of each legislative instrument include a description of consultation undertaken
or, if there was no consultation, an explanation for its absence.
18
Circumstances where consultation may be unnecessary or inappropriate
(1) Despite section 17, the nature of an
instrument may be such that consultation may be unnecessary or inappropriate.
(2) The following are examples of instruments
having a nature such that the rule‑maker may be satisfied that consultation is
unnecessary or inappropriate:
(a) an instrument that is of a minor
or machinery nature and that does not substantially alter existing
arrangements; or
(b) an instrument that is required as
a matter of urgency; or
(c) an instrument that gives effect,
in terms announced in the Budget, to a decision:
(i) to repeal, impose or
adjust a tax, fee or charge; or
(ii) to confer, revoke or
alter an entitlement; or
(iii) to impose, revoke or
alter an obligation; or
(d) an instrument that is required
because of an issue of national security; or
(e) an instrument in relation to which
appropriate consultation has already been undertaken by someone other than the
rule‑maker; or
(f) an instrument that relates to
employment; or
(g) an instrument that relates to the
management of, or to the service of members of, the Australian Defence Force.
19
Consequence of failure to consult
The fact that consultation does not
occur does not affect the validity or enforceability of a legislative
instrument.
Part 4—The Federal Register of Legislative Instruments
Division 1—The Register
20
Federal Register of Legislative Instruments
(1) The Secretary is to cause to be
maintained a register to be known as the Federal Register of Legislative
Instruments.
(1A) The Secretary must cause steps to be taken
to ensure that legislative instruments that are registered are available to the
public.
(2) The Register comprises, at any time, a
database of all legislative instruments, all explanatory statements in relation
to legislative instruments made on or after the commencing day, and all
compilations in relation to legislative instruments, that have been registered
under this Act.
21
Manner of keeping Register
(1) The regulations may prescribe the manner
in which the Register is to be kept.
(2) Without limiting the generality of subsection (1),
regulations made under that subsection may require that any person required to
lodge a legislative instrument for registration must also lodge such
information relating to the legislative instrument as the regulations provide,
in such form as the regulations provide, to ensure that the Register is as
useful as possible to persons wishing to use it.
(3) Without limiting the generality of subsection (1),
regulations made under that subsection may provide:
(a) for the manner in which the
Register is required to be kept including:
(i) the manner of recording
information required to be included in the Register; and
(ii) the manner of altering
information required to be included in the Register; and
(b) for giving a unique identifier to
each legislative instrument that is registered; and
(c) for giving a unique identifier to
each compilation, in relation to a legislative instrument, that is registered.
22 The
status of the Register and judicial notice of legislative instruments and
compilations
(1) The Register is, for all purposes, to be
taken to be a complete and accurate record of all legislative instruments that
are included in the Register.
(2) A compilation that is included in the
Register and that relates to a particular legislative instrument is to be
taken, unless the contrary is proved, to be a complete and accurate record of
that legislative instrument as amended and in force at the date specified in
the compilation.
(3) In any proceedings, proof is not required
about the provisions and coming into operation (in whole or in part) of a legislative
instrument as it appears in the Register.
(4) A court or tribunal may inform itself
about those matters in any way that it thinks fit.
(5) It is presumed, unless the contrary is
proved, that a document that purports to be an extract from the Register is
what it purports to be.
(6) If:
(a) subsection (5) applies to a
document; and
(b) the document purports to be a copy
of, or a copy of a part of, a legislative instrument that was registered on a
particular day and at a particular time;
then it is presumed, unless the contrary is proved and
subject to the operation of section 36 in the circumstances described in
that section, that the legislative instrument was registered on that day and at
that time.
23
Rectification of Register
(1) If:
(a) the Secretary becomes aware that
the Register is erroneous because of a mistake or omission; and
(b) the Secretary is satisfied that:
(i) so far as legislative
instruments are concerned—the error lies in the text, in electronic form, of
such a legislative instrument as it appears in the Register and not in the
original legislative instrument, or other evidence of the text of that
instrument, lodged under subsection 25(2) or 29(3); and
(ii) so far as compilations
are concerned—the error lies in the text, in electronic form, of such a
compilation as it appears in the Register in that the text does not represent
the state of the law that it purports to represent;
the Secretary must arrange for the Register to be altered
to rectify the error as soon as possible and annotate the Register as so
rectified to explain the nature of the rectification, the date and time it was
made and the reason for it.
(2) An alteration of the Register under subsection (1):
(a) does not affect any right or
privilege that was acquired, or that accrued, by reason of reliance on the
content of the Register before that alteration was made; or
(b) does not impose or increase any
obligation or liability that was incurred before that alteration was made.
Division 2—Registration of legislative instruments made, or treated as
made, on or after commencing day
24
Legislative instruments required to be registered under this Division
If a legislative instrument:
(a) is made on or after the commencing
day; or
(b) is to be treated, under subsection
55(2), as if made on that day;
the legislative instrument must be registered in
accordance with this Division.
Note: See subsection 29(2) concerning the lodgment
for registration of instruments made before the commencing day that are amended
by instruments made on or after that day.
25
Lodgment for registration under this Division
(1) If a legislative instrument is required
to be registered under this Division, the rule‑maker must, as soon as
practicable after making that legislative instrument, lodge the instrument in
electronic form with the Department for registration.
(2) At the time of, or as soon as practicable
after, the lodgment of the legislative instrument under subsection (1),
the rule‑maker must also lodge:
(a) the original legislative
instrument; or
(b) if the rule‑maker cannot comply
with paragraph (a)—a certified true copy of the original legislative
instrument; or
(c) if:
(i) the rule‑maker cannot
comply with paragraph (a) or (b); and
(ii) the enabling
legislation required that the full text of the original legislative instrument
be published in the Gazette or elsewhere;
the full text of that original
legislative instrument as so published; or
(d) if the rule‑maker cannot comply
with paragraph (a), (b) or (c)—such other evidence of the text of the
original legislative instrument as the Secretary considers acceptable.
26
Explanatory statements
(1) If a legislative instrument is lodged for
registration under this Division, the rule‑maker must also lodge for
registration, at the same time or as soon as practicable thereafter, the
explanatory statement in electronic form that relates to that instrument.
(2) A failure by the rule‑maker to lodge the
explanatory statement in relation to an instrument in accordance with subsection (1)
does not affect the validity or enforceability of the instrument.
Note: The obligation imposed on a rule‑maker to
comply with this section is not affected by the rule‑maker’s compliance with
subsection 39(2).
27
Registration under this Division
(1) The Secretary is to cause to be
registered each legislative instrument lodged under subsection 25(1) and each
explanatory statement lodged under subsection 26(1).
(2) The regulations may specify the procedure
to be followed in registering a legislative instrument lodged under subsection
25(1) or an explanatory statement lodged under subsection 26(1).
Note: Section 31 describes what happens if a
legislative instrument required to be registered under this Division is not
registered as required.
Division 3—Registration of certain legislative instruments made before
commencing day
28
Legislative instruments required to be registered under this Division
If:
(a) a legislative instrument was made
before the commencing day; and
(b) the legislative instrument is not
required to be treated under subsection 55(2) as if it had been made on the
commencing day; and
(c) the legislative instrument is in
force;
the legislative instrument must, unless it has already
been registered, be registered under this Division.
29
Lodgment for registration under this Division
(1) If:
(a) a legislative instrument is
required to be registered under section 28; and
(b) the legislative instrument is made
during a period referred to in the table below;
the rule‑maker must, unless the regulations otherwise
provide, before the day set out in the table in respect of the period, lodge
for registration, in electronic form, with the Department:
(c) the legislative instrument; and
(d) if the legislative instrument
amends another legislative instrument (the principal legislative instrument)
that has not already been registered:
(i) the principal
legislative instrument; and
(ii) each other legislative
instrument (if any) that is required to be registered under this Division and
that amends the principal legislative instrument.
|
Lodgment of legislative
instruments made before commencing day
|
|
Item
|
Period within which
legislative instrument made
|
Day before which
lodgment required
|
|
1
|
The period of 5 years ending immediately before the
commencing day
|
The first day of the 12th month after the commencing day
|
|
2
|
The period ending immediately before the start of the
period referred to in item 1
|
The first day of the 36th month after the commencing day
|
(2) If:
(a) a legislative instrument is made on
or after the commencing day; and
(b) the legislative instrument amends
another legislative instrument (the principal legislative instrument)
made before the commencing day that has not already been registered;
the rule‑maker must, unless the regulations otherwise
provide, before the day determined in accordance with subsection (4),
lodge for registration, in electronic form, with the Department:
(c) the principal legislative
instrument; and
(d) any other legislative instrument
made before the commencing day that is required to be registered under this
Division and that amends the principal legislative instrument.
(3) At the time of, or as soon as practicable
after, the lodgment of the legislative instrument, or each legislative
instrument, required to be lodged under subsection (1) or (2), the rule‑maker
must also lodge:
(a) the original legislative
instrument; or
(b) if the rule‑maker cannot comply
with paragraph (a)—a certified true copy of the original legislative
instrument; or
(c) if:
(i) the rule‑maker cannot
comply with paragraph (a) or (b); and
(ii) the enabling
legislation required that the full text of the original instrument be published
in the Gazette or elsewhere;
the full text of that original
legislative instrument as so published; or
(d) if the rule‑maker cannot comply
with paragraph (a), (b) or (c)—such other evidence of the text of the
original legislative instrument as the Secretary considers acceptable.
(4) For the purposes of subsection (2),
the day by which instruments must be lodged for registration is:
(a) the day that would have been
determined under subsection (1) if there had been no amendment of the
principal legislative instrument (within the meaning of that subsection) after
the commencing day; or
(b) the day occurring 28 days, or such
longer period as the regulations provide, after the registration of the first‑mentioned
legislative instrument in subsection (2);
whichever first occurs.
(5) Subsection 32(3) (which provides for some
legislative instruments to continue in force even if they are not lodged for
registration as required by this section) does not affect the requirements of
this section. This subsection is for the avoidance of doubt.
30
Registration under this Division
(1) The Secretary is to cause to be
registered each instrument lodged under section 29.
Note: Section 32 describes what happens if a
legislative instrument required to be registered under this Division is not
lodged for registration on or before the last day for lodging the instrument
for registration.
(2) The regulations may specify the procedure
to be followed in registering legislative instruments lodged under section 29.
Division 4—Effect of registration
31
Effect of failure to register a legislative instrument required to be registered
under Division 2
(1) A legislative instrument that is required
to be registered under Division 2 is not enforceable by or against the
Commonwealth, or by or against any other person or body, unless the instrument
is registered.
Note: Division 2 deals with the registration of
legislative instruments made on or after the commencing day.
(2) If:
(a) a legislative instrument is
required to be registered under Division 2; and
(b) because of technical difficulties
the instrument is temporarily unable to be so registered;
the Secretary may cause the instrument to be published in
full in the Gazette.
(3) If the Secretary causes a legislative
instrument to be published in the Gazette in the circumstances referred
to in subsection (2):
(a) this Act has effect as if the
instrument had been registered at the time when it was published in the Gazette;
and
(b) the Secretary must, as soon as
practicable after the instrument is able to be entered in the Register, cause
the instrument to be so entered with an annotation as to the day and time at
which the instrument is taken to have been registered.
32
Effect of failure to lodge for registration a legislative instrument required
to be registered under Division 3
(1) This section applies to a legislative
instrument if:
(a) the instrument is required to be
registered under Division 3; and
(b) the instrument is not lodged for
registration on or before the last day for lodging the instrument for
registration (the last lodgment day) worked out under section 29.
Note: Division 3 deals with the registration of
certain legislative instruments made before the commencing day.
(2) On the day after the last lodgment day,
the instrument:
(a) ceases to be enforceable by or
against the Commonwealth, or by or against any other person or body; and
(b) is taken to have been repealed by
this Act.
(3) Despite subsection (2), and, if the
operation of subsection 12(2) would otherwise cause the instrument not to have
taken effect, despite that subsection, the instrument is taken to have
continued in force after the last lodgment day if:
(a) the instrument is connected with
the collection of revenue; and
(b) the Attorney‑General certifies in
writing that:
(i) he or she is satisfied
that the responsible officer was unaware of the requirement to register the
instrument; and
(ii) in the circumstances
it was reasonable for the responsible officer to be unaware of the requirement;
and
(c) the instrument is lodged for
registration within 28 days after the responsible officer becomes aware of the
requirement for registration.
(4) For the purposes of subsection (3),
the responsible officer for a legislative instrument is:
(a) if the enabling legislation for
the instrument is a taxation law (as defined in the Taxation Administration
Act 1953)—the Commissioner of Taxation; or
(b) if the enabling legislation is a
law of customs (as defined in the Customs Administration Act 1985)—the
Chief Executive Officer of Customs; or
(c) if the enabling legislation for
the instrument is not described in paragraph (a) or (b)—the Secretary of
the Department that is administered by the responsible Minister.
Division 5—Compilations
33
Compilations to be registered
(1) Subject to subsections (2) and (3),
if a legislative instrument (the principal legislative instrument)
is amended:
(a) by an Act; or
(b) by another legislative instrument
(the amending legislative instrument);
the Secretary must cause to be registered a compilation,
in electronic form, in relation to the principal legislative instrument, as
soon as practicable:
(c) after the provision
or provisions of that Act that amend that instrument have commenced; or
(d) after the amending legislative
instrument is registered and has commenced.
(2) If:
(a) the Secretary causes a compilation
to be registered in relation to a principal legislative instrument; and
(b) an amending legislative
instrument, the effect of which is incorporated within the compilation, is
subsequently disallowed, in whole or in part; and
(c) the effect of the disallowance is
that:
(i) a compilation is no
longer required because the principal legislative instrument is no longer
amended in any respect; or
(ii) a compilation is still
required but the compilation as registered ceases to represent the state of the
law;
the Secretary must:
(d) if a compilation is no longer
required—cause the Register to be annotated to explain why a compilation is no
longer required; and
(e) if a compilation is still required
but the compilation as registered ceases to represent the state of the law:
(i) cause the Register to
be annotated to explain why the compilation as registered has ceased to
represent the state of the law; and
(ii) cause to be
registered, with effect from the date of the disallowance, a new compilation
taking account of that disallowance.
(3) Subsections (1) and (2) do not
require the registration of a compilation in relation to a principal
legislative instrument until the registration of that principal legislative
instrument occurs.
34
Secretary may require provision of compilations for registration purposes
(1) If:
(a) a rule‑maker is required to lodge
for registration a legislative instrument; and
(b) the legislative instrument amends
another legislative instrument (the principal legislative instrument);
the Secretary may, by written notice given to the rule‑maker
of the amending instrument:
(c) require the rule‑maker to lodge a
compilation, in electronic form, in relation to the principal legislative
instrument; and
(d) if other legislative instruments
also amend the principal legislative instrument with effect from the same
time—require the compilation to incorporate the text of those other legislative
instruments.
(2) If an Act amends a legislative instrument
(the principal legislative instrument), the Secretary may, by
written notice given to the rule‑maker of the principal legislative instrument,
require the rule‑maker to lodge a compilation, in electronic form, in relation
to the principal legislative instrument.
(3) If:
(a) a compilation in relation to a legislative
instrument (the principal legislative instrument) has been
registered; and
(b) the Secretary is satisfied that,
because of the disallowance, in whole or in part, of a legislative instrument
amending the principal legislative instrument, the compilation as registered
has ceased to represent the state of the law;
the Secretary may, by written notice given to the rule‑maker
of the legislative instrument that has been wholly or partly disallowed,
require the rule‑maker to lodge a revised compilation, in electronic form, in
relation to the principal legislative instrument that takes account of the
disallowance.
(4) A notice under subsection (1) must
require the lodgment of the compilation concerned as soon as practicable after
lodgment for registration of the amending legislative instrument or the
principal legislative instrument, whichever last occurs.
(5) A notice under subsection (2) must
require the lodgment of the compilation concerned as soon as practicable after
the coming into force of the provision or provisions of the amending Act or the
lodgment for registration of the principal legislative instrument, whichever
last occurs.
(6) A notice under subsection (3) must
require the lodgment of the compilation concerned as soon as practicable after
the giving of the notice.
35
Information to be included with a compilation
Any compilation, in relation to a
legislative instrument (the principal legislative instrument),
that is registered, must include the following information:
(a) a reference to the Act or
legislative instrument by which each amendment was made to the principal
legislative instrument;
(b) the amending history of each
provision in the principal legislative instrument as amended by each Act or
amending legislative instrument covered by the compilation;
(c) the date the compilation was
prepared;
(d) such further information as is
specified in the regulations.
35A
Incorporation of amendments in reprints of legislative instruments
(1) If the Government Printer reprints a
legislative instrument that has been amended at any time, the instrument must
be reprinted as amended by:
(a) any repeal or omission of words or
figures; and
(b) any substitution of words or
figures for any repealed or omitted words or figures; and
(c) any insertion of words or figures.
(2) If a legislative instrument prescribes a
method of citing another legislative instrument (the amended instrument),
the amended instrument is taken to be amended by omitting the citation of the
amended instrument and substituting the prescribed method of citation.
(3) A reprint of an amended legislative
instrument must include a reference to the amending legislative instrument or
Act. The reference must be set out in the margin of, or in a footnote or
endnote to, the reprint.
(4) In this section:
words includes Part, Division, Subdivision,
heading, regulation, clause, subregulation, subclause, paragraph, subparagraph,
sub‑subparagraph and Schedule.
Division 6—Early backcapturing
36
Inclusion in database established in anticipation of the enactment of this Act
(1) If, before the commencing day, an
electronic database comprising the text of:
(a) instruments that, on that day,
will be legislative instruments within the meaning of subsection 4(1); and
(b) documents that, on that day, will
be compilations, in relation to legislative instruments, within the meaning of
subsection 4(1);
is established within the Department in anticipation of
the enactment of this Act, that database becomes, on that day, the Federal
Register of Legislative Instruments established by section 20.
(2) If:
(a) before the commencing day, the
text of an instrument referred to in subsection (1) is included in the
database referred to in that subsection; and
(b) the instrument will, on the
commencing day, be a legislative instrument to which section 28 applies;
that instrument is to be taken, on that day, to have been
registered under Division 3 of this Part despite its inclusion in the
database with effect from an earlier day.
(3) If:
(a) before the commencing day, the
text of a compilation referred to in subsection (1) is included in the
database referred to in that subsection; and
(b) the compilation will, on the
commencing day, be a compilation to which section 33 applies;
that compilation is to be taken, on that day, to have been
registered under Division 5 of this Part despite its inclusion in the
database with effect from an earlier day.
(4) For the
purpose only of facilitating access to rules of court to which section 9
applies:
(a) the reference in subsection (1)
to instruments that, on the commencing day, will be legislative instruments is
to be taken to include a reference to such rules; and
(b) such rules are, if included in the
electronic database of the text of instruments referred to in that subsection,
to be taken on that day to have been registered under Division 3 of this
Part as that Division is applied in relation to such rules.
Part 5—Parliamentary scrutiny of legislative instruments
37 The
purpose of the Part
The purpose of this Part is to
facilitate the scrutiny by the Parliament of registered legislative instruments
and to set out the circumstances and manner in which such instruments, or
provisions of such instruments, may be disallowed, as well as the consequences
of such disallowance.
Note: Section 44 provides that certain
instruments are exempted from the operation of section 42.
38
Tabling of legislative instruments
(1) The Department must arrange for a copy of
each legislative instrument registered under Division 2 of Part 4 to
be delivered to each House of the Parliament to be laid before each House
within 6 sitting days of that House after the registration of the instrument.
(2) For the avoidance of doubt, subsection (1)
applies in relation to any legislative instrument made on or after the
commencing day even though the enabling legislation for legislative instruments
of that kind:
(a) may have been enacted or made
before the commencing day; and
(b) may have provided that legislative
instruments of that kind are not disallowable.
(3) If a copy of a legislative instrument
that is required to be laid before each House of the Parliament is not so laid
in accordance with this section, the legislative instrument ceases to have
effect immediately after the last day for it to be so laid.
39
Additional material to be tabled with the legislative instrument
(1) If a rule‑maker
lodges an explanatory statement relating to a legislative instrument:
(a) at the time of lodging the
legislative instrument for registration; or
(b) at a later time before a copy of
the legislative instrument is delivered to each House of the Parliament to be
laid before it;
the Department must also arrange for the delivery to that
House, to be laid before it, with the copy of that legislative instrument, a
copy of that explanatory statement.
(2) If a rule‑maker fails to lodge an
explanatory statement relating to a legislative instrument with the Department
before the Department arranges for a copy of the legislative instrument to be
delivered to a particular House of the Parliament, the rule‑maker must, as soon
as possible, deliver to that House, to be laid before it:
(a) a copy of the explanatory
statement; and
(b) a written statement why the
explanatory statement was not provided to the Department in time to be
delivered to the House with the legislative instrument.
40
Regulations may specify manner of delivery of certain documents
The regulations may specify the manner,
which may include delivery by an electronic means, by which documents required
to be laid before a House of the Parliament in accordance with section 38
or 39 may be delivered to that House for that purpose.
41
Incorporated material may be required to be made available
A House of the Parliament may, at any
time while a legislative instrument is subject to disallowance, require any
document incorporated by reference in the instrument to be made available for
inspection by that House:
(a) at a place acceptable to the
House; and
(b) at a time specified by the House.
42
Disallowance of legislative instruments
(1) If:
(a) notice of a motion to disallow a
legislative instrument or a provision of a legislative instrument is given in a
House of the Parliament within 15 sitting days of that House after a copy of
the instrument was laid before that House; and
(b) within 15 sitting days of that
House after the giving of that notice, the House passes a resolution, in
pursuance of the motion, disallowing the instrument or provision;
the instrument or provision so disallowed then ceases to
have effect.
(2) If:
(a) notice of a motion to disallow a
legislative instrument or a provision of a legislative instrument is given in a
House of the Parliament within 15 sitting days of that House after a copy of
the instrument was laid before that House; and
(b) at the end of 15 sitting days of
that House after the giving of that notice of motion:
(i) the notice has not
been withdrawn and the motion has not been called on; or
(ii) the motion has been
called on, moved and (where relevant) seconded and has not been withdrawn or
otherwise disposed of;
the instrument or provision specified in the motion is
then taken to have been disallowed and ceases at that time to have effect.
(3) If:
(a) notice of a motion to disallow a
legislative instrument or a provision of a legislative instrument is given in a
House of the Parliament within 15 sitting days of that House after a copy of
the instrument was laid before that House; and
(b) before the end of 15 sitting days
of that House after the giving of that notice of motion, the House of
Representatives is dissolved or expires, or the Parliament is prorogued; and
(c) at the time of the dissolution,
expiry or prorogation, as the case may be:
(i) the notice has not
been withdrawn and the motion has not been called on; or
(ii) the motion has been
called on, moved and (where relevant) seconded and has not been withdrawn or
otherwise disposed of;
the legislative instrument is taken, for the purposes of subsections (1)
and (2), to have been laid before the first‑mentioned House on the first
sitting day of that first‑mentioned House after the dissolution, expiry or
prorogation, as the case may be.
44
Legislative instruments that are not subject to disallowance
(1) Section 42 does not apply in
relation to a legislative instrument, or a provision of a legislative
instrument, made on or after the commencing day, if the enabling legislation
for the instrument (not being the Corporations Act 2001):
(a) facilitates the establishment or
operation of an intergovernmental body or scheme involving the Commonwealth and
one or more States; and
(b) authorises the instrument to be
made by the body or for the purposes of the body or scheme;
unless the instrument is a regulation, or the enabling
legislation or some other Act has the effect that the instrument is
disallowable.
(2) Section 42 does not apply in
relation to a legislative instrument, or a provision of a legislative
instrument, that is included in the table below unless the instrument or
provision is subject to disallowance under its enabling legislation or by means
of some other Act:
|
Legislative instruments
that are not subject to disallowance
|
|
Item
|
Particulars of
instrument
|
|
1
|
Determinations under subsection 5(2) of the Australian
Citizenship Act 2007
|
|
2
|
Determinations specifying drugs, made under section 4A
of the Australian Federal Police Act 1979
|
|
3
|
Statutes made under the Australian National University Act 1991 or rules or orders made under those statutes
|
|
4
|
Instruments made under section 32 of the Australian
Postal Corporation Act 1989
|
|
5
|
Rules made under section 60 of the Australian
Research Council Act 2001
|
|
6
|
Standards issued under section 122 of the Broadcasting
Services Act 1992
|
|
7
|
Amendments under section 128 of the Broadcasting
Services Act 1992 to standards under Part 9 of that Act
|
|
8
|
Fee waiver principles made under subsection 91(1A) of the Classification
(Publications, Films and Computer Games) Act 1995
|
|
10
|
Determinations made under paragraph 153L(1)(c), 153P(2)(c)
or 153Q(1)(c) or subsection 153ZIH(2) of the Customs Act 1901
|
|
12
|
Instruments made under subsection 161J(2) or (3) of the Customs
Act 1901
|
|
13
|
Tariff Concession Orders made under section 269P or
269Q of the Customs Act 1901
|
|
14
|
Instruments made under section 269SC or 269SD of the Customs
Act 1901
|
|
15
|
By‑laws made under section 271 of the Customs Act
1901 for the purposes of Schedule 4 to the Customs Tariff Act
1995
|
|
16
|
Revocations of Commercial Tariff Concession Orders to
which section 20 of the Customs Legislation (Tariff Concessions and
Anti‑Dumping) Amendment Act 1992 applies
|
|
17
|
Instruments made under section 303CA, 344 or 350 of
the Environment Protection and Biodiversity Conservation Act 1999
|
|
18
|
By‑laws made under section 165 of the Excise Act
1901 for the purposes of the Excise Tariff within the meaning of section 4
of the Excise Act 1901
|
|
19
|
Determinations made under subsection 20(3), or
instructions given under section 52, of the Financial Management and
Accountability Act 1997
|
|
20
|
Determinations made under Order 6.2.1 of the Financial
Management and Accountability Orders 1997 made under section 63 of the Financial
Management and Accountability Act 1997
|
|
21
|
Guidelines issued under regulations made pursuant to
section 64 of the Financial Management and Accountability Act 1997
|
|
22
|
Proclamations made under section 5, warrants made
under section 6 or rules made under section 7, of the Flags Act
1953
|
|
23
|
Proclamations made under subsection 31(1) or (3) of the Great Barrier Reef Marine Park Act 1975
|
|
24
|
Guidelines issued under section 13 of the Higher
Education Funding Act 1988
|
|
26
|
Legislative instruments (other than regulations) under
Part 1, 2 or 9 of the Migration Act 1958, or legislative
instruments under Part 1, 2 or 5, or Schedule 1, 2, 4, 5A, 6, 6A or
8, of the regulations made under that Act
|
|
27
|
Declarations made by Ministers under section 32 of
the Mutual Recognition Act 1992
|
|
28
|
Instruments made under subsection 203AH(1) of the Native
Title Act 1993
|
|
29
|
Directions issued under section 20 of the Parliamentary
Service Act 1999
|
|
30
|
Instruments made under section 23 or subsection 24(3)
of the Parliamentary Service Act 1999
|
|
31
|
Access regimes made under section 12, variations of
such access regimes under section 14, revocation of access regimes made
under section 15, determinations and variations of standards under
section 18, or instruments made under section 25, of the Payment
Systems (Regulation) Act 1998
|
|
32
|
Directions issued under section 21 of the Public
Service Act 1999
|
|
33
|
Instruments made under section 23 or subsection 24(3)
of the Public Service Act 1999
|
|
34
|
Instruments made under section 2A, 2B, or 12,
subsection 13(1), section 20B, subsection 26(2) or section 26A of
the Quarantine Act 1908
|
|
35
|
Instruments made under subsection 60(1) or 106(1) of the Radiocommunications
Act 1992
|
|
36
|
Instruments made under subsection 463(1) of the Telecommunications
Act 1997
|
|
37
|
Declarations made by Ministers under section 31 of
the Trans‑Tasman Mutual Recognition Act 1997
|
|
38
|
Instruments made under Annual Appropriation Acts
|
|
39
|
Instruments (other than regulations) relating to
superannuation
|
|
40
|
Legislative instruments that, in accordance with the
provisions of the enabling legislation, do not commence unless they are
approved by either or both of the Houses of the Parliament
|
|
41
|
Ministerial directions to any person or body
|
|
42
|
Proclamations that provide solely for the commencement of
Acts or of provisions of Acts
|
|
43
|
Certificates issued by the Attorney‑General under section 10
or 11, or under subsection 51(1), of this Act
|
|
44
|
Instruments
that are prescribed by the regulations for the purposes of this table
|
(3) The inclusion of a kind of instrument in
the table in subsection (2) does not imply that every instrument of that
kind is a legislative instrument.
45
Effect of a legislative instrument ceasing to have effect
(1) If a legislative instrument (the affected
instrument), or a provision of a legislative instrument (the affected
provision), ceases, at a particular time, to have effect under
subsection 38(3) or 42(1) or (2), the operation of that subsection in relation
to the affected instrument or provision has the same effect as if the affected
instrument or provision had been repealed with effect from that time.
(2) If:
(a) the affected instrument or
provision ceases, at a particular time, to have effect under subsection 38(3)
or 42(1) or (2); and
(b) the affected instrument or
provision repealed, in whole or in part, another legislative instrument or law,
or a provision of another legislative instrument or law, that was in force
immediately before the time when the affected instrument or provision
commenced;
the operation of that subsection has the effect of
reviving the other legislative instrument, law or provision, from that first‑mentioned
time, as if the affected instrument or provision had not been made.
(3) Subsection (2) does not have the
effect of reviving a legislative instrument, law or provision if, before the
date when it would have been revived, it would have ceased to have effect under
Part 6 had it not been repealed.
46
Legislative instruments not to be remade while required to be tabled
(1) If a legislative instrument (the original
legislative instrument) has been registered, no legislative instrument
the same in substance as the original legislative instrument is to be made during
the period defined by subsection (2) unless both Houses of the Parliament
by resolution approve the making of an instrument the same in substance as the
original legislative instrument.
(2) The period referred to in subsection (1)
is the period starting on the day on which the original legislative instrument
was registered and ending at the end of 7 days after:
(a) if the original legislative
instrument has been laid, in accordance with subsection 38(1), before both
Houses of the Parliament on the same day—that day; or
(b) if the original legislative
instrument was so laid before both Houses on different days—the later of those
days; or
(c) if the original legislative
instrument has not been so laid before both Houses—the last day on which
subsection 38(1) could have been complied with.
(3) An instrument made in contravention of
this section has no effect.
47
Legislative instruments not to be remade while subject to disallowance
(1) If notice of a motion to disallow a
legislative instrument, or a provision of a legislative instrument, has been
given in a House of the Parliament within 15 sitting days after the instrument
has been laid before that House, a legislative instrument, or a provision of a
legislative instrument, that is the same in substance as the first‑mentioned
instrument or provision, must not be made unless:
(a) the notice has been withdrawn; or
(b) the instrument or provision is
taken to have been disallowed under subsection 42(2); or
(c) the motion has been withdrawn or
otherwise disposed of; or
(d) subsection 42(3) has applied in
relation to the instrument.
(2) If:
(a) because of subsection 42(3), a
legislative instrument is taken to have been laid before a House of the
Parliament on a particular day; and
(b) notice of a motion to disallow the
instrument or a provision of the instrument has been given in that House within
15 sitting days after that day;
a legislative instrument, or a provision of a legislative
instrument, that is the same in substance as the first‑mentioned instrument or
provision must not be made unless:
(c) the notice has been withdrawn; or
(d) the first‑mentioned instrument or
provision is taken to have been disallowed under subsection 42(2); or
(e) the motion has been withdrawn or
otherwise disposed of; or
(f) subsection 42(3) has applied
again in relation to the first‑mentioned instrument.
(3) A legislative instrument or a provision
of a legislative instrument made in contravention of this section has no
effect.
(4) This section does not limit the operation
of section 46 or 48.
48
Disallowed legislative instruments not to be remade unless disallowance
resolution rescinded or House approves
(1) If, under section 42, a legislative
instrument or a provision of a legislative instrument is disallowed, or is
taken to have been disallowed, a legislative instrument, or a provision of a
legislative instrument, that is the same in substance as the first‑mentioned
instrument or provision, must not be made within 6 months after the day on
which the first‑mentioned instrument or provision was disallowed or was taken
to have been disallowed, unless:
(a) if the first‑mentioned instrument
or provision was disallowed by resolution—the resolution has been rescinded by
the House of the Parliament by which it was passed; or
(b) if the first‑mentioned instrument
or provision was taken to have been disallowed—the House of the Parliament in
which notice of the motion to disallow the instrument or provision was given by
resolution approves the making of a legislative instrument or provision the
same in substance as the first‑mentioned instrument or provision.
(2) Any legislative instrument or provision
made in contravention of this section has no effect.
Part 6—Sunsetting of legislative instruments
49 The
purpose of the Part
The purpose of this Part is to ensure
that legislative instruments are kept up to date and only remain in force for
so long as they are needed.
Note: Section 54 provides that certain
instruments are exempted from the operation of this Part.
50 The
sunsetting of legislative instruments to which this Part applies
(1) Subject to subsection 51(1), if a
legislative instrument to which this Part applies (the principal
legislative instrument):
(a) is made before the commencing day
and does not amend an earlier legislative instrument that continues in force
after the making of the principal legislative instrument; and
(b) is required to be lodged for
registration before a day (the deadline day) determined in
accordance with section 29;
then:
(c) the principal legislative
instrument; and
(d) the provisions of any other
legislative instrument (whether or not made before the commencing day) that
amend, or otherwise affect the operation of, the principal legislative
instrument;
as in force immediately before whichever of 1 April
or 1 October falls on, or next follows, the tenth anniversary of the
deadline day, cease to be in force on that 1 April or 1 October as if
they had been repealed by another legislative instrument.
(2) Subject to subsection 51(1), if a
legislative instrument to which this Part applies (the principal
legislative instrument) is made on or after the commencing day and does
not amend an earlier legislative instrument that continues in force after the
making of the principal legislative instrument, then:
(a) the principal legislative
instrument; and
(b) the provisions of any other
legislative instrument that amend, or otherwise affect the operation of, the
principal legislative instrument;
as in force immediately before whichever of 1 April
or 1 October falls on, or next follows, the tenth anniversary of the day
of commencement of the principal legislative instrument, cease to be in force
on that 1 April or 1 October as if they had been repealed by another
legislative instrument.
(3) Subject to subsection 51(1), if a
legislative instrument to which this Part applies (the partially amending
legislative instrument) contains:
(a) provisions that amend an earlier
legislative instrument that continues in force after the making of the partially
amending legislative instrument; and
(b) other provisions that do not amend
an earlier legislative instrument;
then:
(c) the provisions of the partially
amending legislative instrument that do not amend an earlier legislative
instrument; and
(d) the provisions of any other
legislative instrument that amend, or otherwise affect, the operation of the
provisions referred to in paragraph (c);
as in force immediately before whichever of 1 April
or 1 October falls on, or next follows, the tenth anniversary of a day
(the critical day) in relation to the partially amending
legislative instrument, determined in accordance with subsection (4),
cease to be in force on that 1 April or 1 October as if they had been
repealed by another legislative instrument.
(4) For the purposes of subsection (3):
(a) if a partially amending
legislative instrument is made before the commencing day—the critical day in
relation to that instrument is the day on which, under section 29, it is
required to be lodged for registration; and
(b) if a partially amending
legislative instrument is made on or after the commencing day—the critical day
in relation to that instrument is the date of commencement of the provisions
that do not amend an earlier legislative instrument.
(5) If a principal legislative instrument
referred to in subsection (2) has 2 or more days of commencement, then,
for the purposes of that subsection, the day of commencement of that instrument
is the earliest of those days.
(6) If the provisions of a partially amending
legislative instrument referred to in subsection (3) that do not amend an
earlier legislative instrument have 2 or more days of commencement then, for
the purposes of subsection (4), the day of commencement of those
provisions is the earliest of those days.
51
Attorney‑General may defer sunsetting in certain circumstances
(1) If:
(a) a legislative instrument or
particular provisions of a legislative instrument would be taken to cease to be
in force under this Part (whether because of the operation of subsection 50(1),
(2) or (3) on a particular day (the sunsetting day); and
(b) the Attorney‑General is satisfied,
on written application by the rule‑maker:
(i) that the instrument or
provisions would (apart from the operation of this Part) be likely to cease to
be in force within 12 months after the sunsetting day; or
(ii) that an instrument
proposed to be made in substitution for the instrument or provisions will not
be able to be completed before the sunsetting day for reasons that the rule‑maker
could not have foreseen and avoided or because the dissolution or expiration of
the House of Representatives or the prorogation of the Parliament renders it
inappropriate to make a replacement instrument before a new government is
formed;
then:
(c) the Attorney‑General may issue a
certificate providing that the first‑mentioned instrument or provisions are
taken to cease to be in force under this section on whichever of the 1 April
and 1 October next following the sunsetting day the Attorney‑General
specifies as the more appropriate; and
(d) if the Attorney‑General issues the
certificate, the first‑mentioned instrument or provisions are taken to cease to
be in force on the specified day instead of the sunsetting day as if repealed
by another legislative instrument, unless they have earlier ceased to be in
force.
(2) If the Attorney‑General issues a
certificate under paragraph (1)(c), he or she must:
(a) include in the certificate a
statement of the reasons for the issue of a certificate; and
(b) cause a copy of the certificate to
be laid before each House of the Parliament not later than 6 sitting days of
that House after the issue of the certificate.
(3) A certificate issued under paragraph (1)(c)
is a legislative instrument and, as such, is required under Part 4 to be
registered.
52
Attorney‑General must lay lists of instruments due for sunsetting before each
House of the Parliament
(1) In this section:
list tabling day, in relation to a sunsetting
day and to a House of the Parliament, means the first sitting day of that House
occurring within 18 months before that sunsetting day.
principal legislative instrument means an
instrument that is a principal legislative instrument within the meaning of
subsection 50(1) or (2), whichever is appropriate.
sunsetting day means the first possible day
on which any legislative instrument will cease to be in force because of the
operation of this Part and each 1 April and 1 October occurring after
that day.
(2) The Attorney‑General must arrange for the
laying before each House of the Parliament, on each list tabling day in
relation to that House, of a list of:
(a) the principal legislative
instruments; and
(b) the provisions (if any) of other
legislative instruments that amend or otherwise affect, the operation of those
principal legislative instruments;
that will, because of the operation of section 50 or
51, cease to be in force on the sunsetting day to which that list tabling day
relates.
(3) As soon as practicable after the laying
before either House of the Parliament of a list in accordance with subsection (2),
the Department must arrange for a copy of that list to be provided to the rule‑maker
responsible for each principal legislative instrument, and each provision of a
legislative instrument, appearing on the list.
(4) If subsection (2) requires the
Attorney‑General to arrange for the laying of a list of the kind referred to in
that subsection before the Houses of the Parliament on different days, subsection (3)
need only be complied with in relation to the earlier of those days.
53
Resolution that instruments continue in force
(1) Either House of the Parliament may, by
resolution passed within 6 months after:
(a) the laying before that House,
under subsection 52(2), of a list; or
(b) the laying before that House,
under subsection 51(2), of a copy of a certificate issued under paragraph
51(1)(c);
indicate the legislative instruments and provisions of
legislative instruments on that list or referred to in that certificate (selected
instruments or provisions) that that House considers should continue in
force.
(2) A selected instrument or provision
continues in force, subject to any later instrument amending or repealing it,
as if it had been remade on the date on which if the resolution had not been
passed, it would cease to be in force.
54
Instruments to which this Part does not apply
(1) This Part does not apply in relation to a
legislative instrument made before, on or after the commencing day, if the
enabling legislation for the instrument (not being the Corporations Act 2001):
(a) facilitates the establishment or
operation of an intergovernmental body or scheme involving the Commonwealth and
one or more States; and
(b) authorises the instrument to be
made by the body or for the purposes of the body or scheme.
(2) This Part does not apply to any
legislative instrument that is included in the table below:
|
Legislative instruments
that are not subject to sunsetting
|
|
Item
|
Particulars of
instrument
|
|
1
|
Instruments made under section 8 or 9 of the Aboriginal
Land Grant (Jervis Bay Territory) Act 1986
|
|
2
|
Instruments relating to aviation security made under the Air
Navigation Act 1920 or under the regulations made under that Act
|
|
3
|
Instruments relating to aviation safety made under the Air
Services Act 1995 or the Air Services Regulations
|
|
4
|
National Capital Plan made under the Australian Capital
Territory (Planning and Land Management) Act 1988
|
|
5
|
Determinations specifying drugs, made under section 4A
of the Australian Federal Police Act 1979
|
|
6
|
Statutes made under the Australian National University Act 1991 or rules or orders made under those statutes
|
|
7
|
Instruments made under section 32 of the Australian
Postal Corporation Act 1989
|
|
8
|
Instruments made under section 25 or 26 of the Broadcasting
Services Act 1992
|
|
9
|
Instruments relating to aviation safety made under the
Civil Aviation Act 1988, the Civil Aviation Regulations 1988 or
the Civil Aviation Safety Regulations 1998
|
|
10
|
Fee waiver principles made under subsection 91(1A) of the Classification
(Publications, Films and Computer Games) Act 1995
|
|
12
|
Determinations made under paragraph 153L(1)(c), 153P(2)(c)
or 153Q(1)(c) or subsection 153ZIH(2) of the Customs Act 1901
|
|
14
|
Instruments made under subsection 161J(2) or (3) of the Customs
Act 1901
|
|
15
|
Instruments made under section 178, 181, 183, 184,
207A, 248, 249, 303CA, 303DB, 303DC, 303EB, 303EC, 303FG, 344 or 350 of the Environment
Protection and Biodiversity Conservation Act 1999
|
|
16
|
Excise By‑law No. 75, 114, 127, 129, 151 or 154 made
under section 165 of the Excise Act 1901
|
|
17
|
Determinations made under subsection 20(1), (2) or (3), or
instructions given under section 52, of the Financial Management and
Accountability Act 1997
|
|
18
|
Determinations made under Order 6.2.1 of the Financial
Management and Accountability Orders 1997 made under section 63 of the Financial
Management and Accountability Act 1997
|
|
19
|
Guidelines issued under regulations made pursuant to
section 64 of the Financial Management and Accountability Act 1997
|
|
20
|
Plans of management made under section 17 of the Fisheries
Management Act 1991 and instruments amending such plans made under
section 20 of that Act
|
|
21
|
Proclamations made under section 5, warrants made
under section 6, or rules made under section 7, of the Flags Act
1953
|
|
22
|
Proclamations made under section 31 of the Great Barrier Reef Marine Park Act 1975, plans of management prepared
in accordance with Part VB of that Act, instruments made under section 39ZG
of that Act amending such plans of management, or instruments made under
section 39ZH of that Act revoking such plans of management
|
|
24
|
Instruments made under section 7 or 9 of the Motor
Vehicle Standards Act 1989
|
|
25
|
Declarations made by Ministers under section 32 of
the Mutual Recognition Act 1992
|
|
26
|
Instruments made under subparagraph 26(1)(c)(iv),
subsection 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b) or 43A(1)(b), subsection
207A(1), 207B(3), 245(4) or 251C(4) or (5), or paragraph (i) of the
definition of infrastructure facility in section 253, of
the Native Title Act 1993
|
|
27
|
Instruments made under section 421, or Marine Orders
made under subsection 425(1AA), of the Navigation Act 1912
|
|
28
|
Navigation (Collision) Regulations 1982 made
pursuant to section 258, or Navigation (Orders) Regulations 1980
made pursuant to subsection 425(1), of the Navigation Act 1912
|
|
29
|
Directions issued under section 20 of the Parliamentary
Service Act 1999
|
|
30
|
Instruments made under section 23 or subsection 24(3)
of the Parliamentary Service Act 1999
|
|
31
|
Approvals made under section 9 of the Payment
Systems and Netting Act 1998
|
|
32
|
Access regimes imposed under section 12, variations
of access regimes under section 14, revocation of access regimes under
section 15, standards determined, or instruments varying or revoking
such standards, under section 18, or instruments made under section 25,
of the Payment Systems (Regulation) Act 1998
|
|
34
|
Protection of the Sea (Powers of Intervention) Regulations
made under section 23 of the Protection of the Sea (Powers of
Intervention) Act 1981
|
|
35
|
Marine Orders made under subsection 34(1) of the Protection
of the Sea (Prevention of Pollution from Ships) Act 1983
|
|
36
|
Protection of the Sea (Prevention of Pollution from
Ships) (Orders) Regulations 1994 made under subsection 33(1) of the Protection
of the Sea (Prevention of Pollution from Ships) Act 1983
|
|
37
|
Directions issued under section 21 of the Public
Service Act 1999
|
|
38
|
Instruments made under section 23 or subsection 24(3)
of the Public Service Act 1999
|
|
39
|
Instruments required to be laid before the Parliament
under subsection 7(7) of the Remuneration Tribunal Act 1973
|
|
40
|
Declarations made by Ministers under section 31 of
the Trans‑Tasman Mutual Recognition Act 1997
|
|
41
|
Instruments made under Annual Appropriation Acts
|
|
42
|
Instruments (other than regulations) relating to
superannuation
|
|
43
|
Legislative instruments the sole purpose of which, or a
primary purpose of which, is to give effect to an international obligation of
Australia
|
|
44
|
Legislative instruments the sole purpose of which, or a
primary purpose of which, is to confer heads of power on a self‑governing
Territory
|
|
45
|
Legislative instruments that establish a body having power
to enter into contracts for the purposes of the body’s functions
|
|
46
|
Ministerial directions to any person or body
|
|
47
|
Ordinances of the non self‑governing Territories
|
|
48
|
Proclamations that provide solely for the commencement of
Acts or provision of Acts
|
|
49
|
Certificates issued by the Attorney‑General under section 10
or 11 of this Act
|
|
50
|
Regulations made for the purposes of item 24 of the
table in subsection 7(1), item 44 of the table in subsection 44(2) or
item 51 of this table
|
|
51
|
Legislative instruments that are prescribed by the
regulations for the purposes of this table
|
(3) The inclusion of a kind of instrument in
the table in subsection (2) does not imply that every instrument of that
kind is a legislative instrument.
Part 7—Miscellaneous
55
Instruments made but not finally dealt with before the commencing day
(1) This section applies to a legislative
instrument made before the commencing day:
(a) that was a disallowable instrument
for the purposes of section 46A of the Acts Interpretation Act 1901
as in force at any time before the commencing day; or
(b) that was a statutory rule or other
instrument able to be disallowed under Part XII of the Acts
Interpretation Act 1901 as in force at any time before the commencing day;
or
(c) that was otherwise required to be
published, or to have notice of its making published, in the Gazette.
(2) If a legislative instrument to which this
section applies, or notice of the making of such an instrument, had not been
published in the Gazette before the commencing day:
(a) that instrument is to be treated,
for all purposes of this Act, as if it had been made on the commencing day; and
(b) the obligations in relation to
that instrument under the Acts Interpretation Act 1901, and under the Statutory
Rules Publication Act 1903, as in force immediately before the commencing
day, cease to apply;
but the tenor of the instrument is not affected.
(3) Despite subsection (2), section 39
does not apply in relation to a legislative instrument described in that
subsection.
(4) If a legislative instrument to which this
section applies, or notice of the making of such an instrument, had been
published in the Gazette before the commencing day, the obligations in
relation to that instrument under Part XII of the Acts Interpretation
Act 1901, and under the Statutory Rules Publication Act 1903, as in
force at any time before the commencing day, continue to apply in relation to
that instrument as if that Part and that Act had not been repealed.
56
Relationship of certain gazettal requirements to registration requirements
(1) If the enabling legislation in relation
to a legislative instrument as in force at any time before the commencing day
required the text of the instrument, or particulars of its making, to be
published in the Gazette, the requirement for publication in the Gazette
is taken, in relation to any such instrument made on or after that day, to be
satisfied if the instrument is registered.
(2) If the enabling legislation in relation
to a legislative instrument as enacted, or as amended, at any time on or after
the commencing day requires the text of the instrument, or particulars of its
making, to be published in the Gazette, the requirement for publication
in the Gazette is taken in respect of any such instrument to be in
addition to any requirement under this Act for the instrument to be registered.
57
Effect on existing tabling and disallowance requirements
(1) Despite provisions in force immediately
before the commencing day in relation to a document that is a legislative
instrument for the purposes of this Act concerning:
(a) the time within which; and
(b) the means by which;
such an instrument is required to be laid before the
Parliament, compliance, on and after that day, with the requirements of this
Act relating to laying of instruments before the Parliament is taken to
constitute full compliance with the requirements of those first‑mentioned
provisions.
(2) Despite provisions in force immediately
before the commencing day that provide for the disallowance of a document that
is a legislative instrument (otherwise than because of the application, without
modification, of the disallowance provisions of Part XII of the Acts
Interpretation Act 1901), the disallowance provisions of this Act are taken
to apply, subject to subsection (5), in respect of that document to the
exclusion of those other provisions.
(3) If
provisions in force immediately before the commencing day in relation to a
document that is a legislative instrument specify particular consequences that
follow a particular circumstance, namely:
(a) the laying of that document, or
the failure to lay that document, before the Houses of the Parliament in
accordance with those provisions; or
(b) the disallowance or non‑disallowance,
in accordance with those provisions, of a document that is so laid:
those same consequences follow a like circumstance under
this Act, namely:
(c) the laying of that document, or
the failure to lay that document, before the Houses of the Parliament in
accordance with this Act; and
(d) the disallowance or non‑disallowance
of that document, in accordance with this Act, of a document that is laid
before the Houses of the Parliament in accordance with this Act;
as if the circumstance referred to in paragraph (c)
or (d) were a circumstance referred to in paragraph (a) or (b).
(4) If provisions in force immediately before
the commencing day in relation to a document that is a legislative instrument:
(a) require the document to be laid
before the Houses of the Parliament; and
(b) specify particular requirements to
be complied with before, or at the same time as, that document is so laid;
those provisions continue to have effect, on and after the
commencing day, as if they were requirements to be complied with before, or at
the same time as, the document is laid before the Houses of the Parliament in
accordance with this Act.
Note: This subsection applies, for example, if the
enabling legislation in respect of a legislative instrument required that a
report concerning any such instrument be prepared and laid before the
Parliament at the same time as the instrument is so laid.
(5) If particular disallowance provisions of
the kind referred to in subsection (2) are prescribed as provisions to
which subsection (2) does not apply, then those provisions continue to
apply, on and after the commencing day, despite the provisions to different
effect in sections 42 to 48 of Part 5 of this Act.
58
Delegation
The Secretary may, by signed instrument,
delegate to an APS employee who is performing duty in the Department any of the
powers or functions of the Secretary under this Act other than this power of
delegation.
59
Review of operation of this Act
(1) During the 3 months starting on the third
anniversary of the commencing day, the Attorney‑General must appoint persons to
a body to review the operation of this Act.
(2) A person appointed to the body may resign
from it by giving the Attorney‑General a signed notice of resignation.
(3) The body must review all aspects of the
operation of this Act and any related matters that the Attorney‑General
specifies.
(4) The body must give the Attorney‑General a
written report on the review within 15 months after the third anniversary of
the commencing day.
(5) The Attorney‑General must cause the
report to be laid before each House of the Parliament within 6 sitting days of
the House after the Attorney‑General receives the report.
60 Review
of operation of the sunsetting provisions
(1) During the 3 months starting on the 12th
anniversary of the commencing day, the Attorney‑General must appoint persons to
a body to review the operation of Part 6.
(2) A person appointed to the body may resign
from it by giving the Attorney‑General a signed notice of resignation.
(3) The body referred to in subsection (1)
must review all aspects of the operation of Part 6 and any related matters
that the Attorney‑General specifies.
(4) The body must give the Attorney‑General a
written report on the review within 9 months after the 12th anniversary of the
commencing day.
(5) The Attorney‑General must cause the
report to be laid before each House of the Parliament within 6 sitting days of
the House after the Attorney‑General receives the report.
61
Existing references to Legislative Instruments Act
Any reference in a law of the
Commonwealth in force immediately before the commencement of this Act, to:
(a) the Legislative Instruments Act
1994; or
(b) the Legislative Instruments Act of
any subsequent year before the year featuring in the correct citation of this
Act;
has effect, on and after the commencement of this Act, as
if it were, and had always been, a reference to this Act.
62
Regulations
The Governor‑General may make
regulations prescribing all matters:
(a) required or permitted by this Act
to be prescribed; or
(b) necessary or convenient to be
prescribed for carrying out or giving effect to this Act.