Explanatory Memorandum
(Circulated by the authority of the Treasurer, the Hon J. B. Hockey MP)Chapter 8 - Amendments contingent on the Acts and Instruments (Framework Reform) Act 2015
Outline of chapter
8.1 Schedule 2 to this Bill provides for a number of consequential amendments to be made to the Act immediately after the Acts and Instruments (Framework Reform) Act 2015 comes into effect.
8.2 In broad terms, the amendments made by Schedule 2 amends those provisions in the Act as amended by Schedule 1 which require certain orders to be published in the Commonwealth of Australia Gazette (Gazette) by instead requiring the orders to be registered on the new Federal Register of Legislation. For ease of reference this chapter assumes that the Act is amended in accordance with Schedule 1 to this Bill.
Context of amendments
8.3 The Acts and Instruments (Framework Reform) Act 2015 makes a number of significant amendments to the Legislative Instruments Act 2003 which is to be renamed the Legislation Act 2003. Most relevantly to the provisions in Schedule 2, the Legislation Act establishes a new category of instruments called notifiable instruments, which will be able to be registered in authoritative form. The new category of notifiable instruments is designed to encompass instruments that are not appropriate to register as legislative instruments, but for which public accessibility and centralised management is desirable.
8.4 Notifiable instruments will be published in a register known as the Federal Register of Legislation, which will also incorporate the existing Acts database established under the Acts Publication Act 1905 and the existing Federal Register of Legislative Instruments.
Detailed explanation of new law
Section 3
8.5 Section 3 provides a simplified outline of the Act. The amendment to this provision reflects that once Schedule 2 comes into effect an interim order will be registered in the Federal Register of Legislation rather than published in the Gazette. [Schedule 2, item 1]
Section 66
8.6 Section 71 provides a simplified outline of Part 3 of the Act. The amendment to this provision reflects that once Schedule 2 comes into effect an interim order will be registered in the Federal Register of Legislation rather than published in the Gazette. [Schedule 2, item 2]
Subsections 67(1) and (3) and 68(1)
8.7 Subsection 67(1) of the Act permits the Treasurer to make an order in accordance with the table in subsection 67(2) if the Treasurer is satisfied that a significant action is proposed to be taken and that taking the significant action would be contrary to the national interest. As a result of the amendment to subsection 67(1) such an order must be made by notifiable instrument.
8.8 Subsection 67(3) of the Act permits the Treasurer to make additional orders where the Treasurer makes an order under subsection 67(2) of the Act. As a result of the amendment to subsection 67(3) such additional orders must also be made by notifiable instrument.
8.9 Section 68 of the Act permits the Treasurer to make an interim order. As a result of the amendment to subsection 68(1) any interim order must be made by notifiable instrument. [Schedule 2, item 3]
Subsection 68(2) (note)
8.10 Subsection 68(2) of the Act includes a note which in general terms explains that the period during which an interim order has effect does not start until the order is published in the Gazette. The Bill amends the note so that it instead explains that the period during which the interim order has effect does not start until the order is registered in the Federal Register of Legislation. [Schedule 2, item 4]
Subsection 69(1)
8.11 Subsection 69(1) of the Act permits the Treasurer to make a disposal order if the Treasurer is satisfied that a significant action has been taken and the result of taking the significant action is contrary to the national interest. As a result of the amendment to subsection 69(1) any such order must be made by notifiable instrument. [Schedule 2, item 5]
Section 72 (heading)
8.12 This amendment would repeal the heading 'Publication and commencement of orders' in section 72 of the Act and substitute 'Registration and commencement of orders'. This amendment is necessary because once Schedule 2 comes into effect an order made by the Treasurer must be registered in the Federal Register of Legislation instead of being published in the Gazette. [Schedule 2, item 6]
Subsection 72(1) (heading)
8.13 This amendment would repeal the heading 'Publication of orders' and substitute 'Registration and commencement of orders'. This amendment is necessary because once Schedule 2 comes into effect an order made by the Treasurer must be registered in the Federal Register of Legislation instead of being published in the Gazette. [Schedule 2, item 7]
Paragraph 72(1)(b)
8.14 Under paragraph 72(1)(b) of the Act an order made by the Treasurer under Subdivision A of Division 2 of Part 3 of the Act must be published in the Gazette within 10 days after it is made. As a result of the amendment to paragraph 72(1)(b) any such order made by the Treasurer must be registered in the Federal Register of Legislation within 10 days after it is made. [Schedule 2, item 8]
Paragraphs 72(2)(a) and (b)
8.15 Paragraphs 72(2)(a) and (b) explain when certain orders commence by reference to when they are published in the Gazette. As a result of the amendments the orders commence by reference to when an order is registered. [Schedule 2, item 9]
Subparagraph 77(2)(c)(ii)
8.16 The effect of subsection 77(2) of the Act is that the Treasurer must not make certain orders or decisions in the circumstances set out in that provision, including where the Treasurer does not publish the order in the Gazette. As a result of the amendment made to subparagraph 75(2)(c)(ii) of the Act the Treasurer will not be able to make certain orders or decisions if the order is not registered in the Federal Register of Legislation. [Schedule 2, item 10]
Paragraph 77(3)(b) and subparagraph 77(3)(d)(i)
8.17 The effect of subsection 77(3) of the Act is that there are time limits on making certain orders or decisions after an interim order is made. Paragraph 77(3)(b) and subparagraph 77(3)(d)(i) are amended so that the orders referred to in those provisions will be registered in the Federal Register of Legislation rather than published in the Gazette. [Schedule 2, items 11 to 12]
Section 80
8.18 Section 80 provides a simplified outline of Part 4 of the Act. The amendment to section 80 reflects that an interim order must be registered in the Federal Register of Legislation rather than published in the Gazette. [Schedule 2, item 13]
Subsection 139(3)
8.19 The reference to the Legislative Instruments Act 2003 is amended to the Legislation Act 2003. [Schedule 2, item 14]