Senate

Acts and Instruments (Framework Reform) Bill 2014

Replacement Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

This Memorandum replaces the Explanatory Memorandum presented to the House of Representatives on 22 October 2014

Schedule 1 - Acts, legislative instruments and notifiable instruments

GENERAL OUTLINE

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

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

Schedule 1 Part 1 - Definitions and key concepts

The key changes in Part 1 include:

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

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 This is possible under existing section 15AE(3) of the Acts Interpretation Act, which is repealed by the Bill.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

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

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

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

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

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

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

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

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

Schedule 1 Part 2 - Registration of Acts and Instruments

The key amendments in Part 2 include:

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

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

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

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

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

Compilations

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

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

Editorial and other changes in compilations

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

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

Authorised versions and judicial notice

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

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

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

Schedule 1 Part 3 - Legislative and Notifiable Instruments generally

The key amendments in Part 3 include:

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

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

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

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

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

·
the relevant House rescinds the motion of disallowance (where disallowance was by resolution), or
·
the relevant House authorises the remaking of the instrument or provision (where an instrument or provision is taken to be disallowed).

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

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

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

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

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

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

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

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

Schedule 1 Part 4 - Repeals

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

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

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

Schedule 1 Part 5 - Amendment of other Acts

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

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

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

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

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

Schedule 1 Part 7 - Application, Savings and Transitional provisions

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

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

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

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

PART 1 - DEFINITIONS AND KEY CONCEPTS

Legislative Instruments Act 2003

Item 1 - Title

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

Item 2 - Part 1 (heading)

Item 2 repeals the heading of Part 1 and inserts the headings 'Chapter 1-Introduction' and 'Part 1-Preliminary'.

Item 3 - Section 1

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

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

Item 4 - Section 2A

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

Item 5 - Section 3

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

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

Item 6 - Paragraph 3(a)

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

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

Item 7 - Paragraph 3(c)

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

Item 8 - Paragraph 3(d)

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

Item 9 - Paragraph 3(ea)

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

Item 10 - At the end of section 3

Item 10 inserts a new paragraph 3(g) to state that the object includes the enabling of regulations to be made under this Act to amend or repeal legislative instruments and notifiable instruments in some circumstances. This reflects the new regulation-making power inserted by the Bill in new section 61 of the Legislation Act (see item 87). Item 11 - After section 3

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

Item 12 - Sections 4 to 12

Item 12 repeals sections 4 to 12 and replaces these with new provisions. New section 4 - The Dictionary

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New section 5 - Definitions of amend and modify

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

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

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

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

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

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

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

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

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

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

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

New section 8 - Definition of legislative instrument

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

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

·
a primary law provides for something to be done by legislative instrument (subsection 8(2))
·
the instrument is registered as a legislative instrument on the Register (subsection 8(3))
·
the instrument determines or alters the law (subsection 8(4)), or
·
it is declared by other sections of the Legislation Act to be a legislative instrument (subsection 8(5)).

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

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

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

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

·
determines or alters the content of the law, rather than determining cases or particular circumstances in relation to which the law, as set out in an Act or another legislative instrument or provision, is to apply, and
·
any provision has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right or varying or removing an obligation or right.

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

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

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

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

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

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

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

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

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

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

New section 9 - Inference of legislative character

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

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

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

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

New section 10 - Instruments declared to be legislative instruments

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

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

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

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

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

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

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

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

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

New section 11 - Definition of notifiable instrument

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

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

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

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

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

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

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

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

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

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

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

New section 12 - Commencement of legislative instruments and notifiable instruments

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

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

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

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

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

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

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

Item 13 - Subsection 13(1)

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

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

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

Item 15 - Paragraph 13(1)(c)

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

Item 16 - Subsection 13(2)

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

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

Items 17 and 18 - Subsection 13(3)

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

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

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

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

Item 19 inserts a new subsection 13(5), which provides that the amendment of a legislative instrument or notifiable instrument by an Act does not prevent the person authorised to make the instrument under the enabling legislation from amending or repealing it. This provision reflects an existing practice of amending instruments by Act. The new subsection makes clear that other amendments can still be made by regulation. Inserting this general principle into the Legislation Act means that this principle does not have to be stated in each Act which amends a legislative instrument or notifiable instrument. A corresponding provision for instruments which are not legislative instruments or notifiable instruments is inserted into section 46 of the Acts Interpretation Act by item 110 of Schedule 1 to the Bill.

Item 20 - Section 13 (note)

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

Item 21 - Subsection 14(1)

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

Item 22 - Paragraph 14(1)(a)

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

Item 23 - Paragraph 14(1)(b)

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

Item 24 - Subsection 14(2)

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

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

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

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

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

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

PART 2 - REGISTRATION OF ACTS AND INSTRUMENTS

Legislative Instruments Act 2003

Item 26 - After Part 1

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

New section 15 - Simplified outline of this Part

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

·
an instrument contains a special symbol, mathematical formula or other formatting that is incompatible with the technology used to make documents available online, or
·
an error is found to have been made in the content of a compilation.

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

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

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

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

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

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

New section 15F - Registration of Acts

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

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

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

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

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

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

·
meets any statutory requirement for publication in the Gazette or in some other way (see section 56 and also new section 11(5))
·
establishes a permanent public record of the making and text of the instrument as made, and of any amendments to the instrument, and
·
enables authorised electronic and printed versions of an instrument to be made as needed, at no additional cost to the rule-maker (see new section 15ZA).

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

·
for the initial explanatory statement-as soon as practicable after the instrument is lodged for registration (paragraph 15G(4)(a)), and
·
for any supplementary or replacement explanatory statement-as soon as practicable after it is prepared (paragraph 15G(4)(b)).

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

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

·
evidence that a particular process was followed before an instrument was made, if this is a requirement of its enabling legislation
·
evidence that a Minister has been notified of or endorsed a particular instrument, if this is a requirement of its enabling legislation
·
documents incorporated by reference, if there are no copyright or other issues that may preclude its publication (see also new subsection 15H(4)), or
·
guidance notes.

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

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

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

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

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

·
the person who lodged a document (or another person acting on their behalf) to withdraw it if it has not been registered already (paragraph 15H(3)(b)), and
·
the First Parliamentary Counsel to decline to register documents other than those lodged as a legislative or notifiable instrument if certain conditions are met (paragraph 15H(3)(a)).

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

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

New section 15J - Explanatory statements

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

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

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

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

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

New section 15K - Registration-enforceability of legislative instruments

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

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

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

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

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

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

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

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

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

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

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

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

New section 15M - Rules for lodgement and registration

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

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

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

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

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

New section 15N - Simplified outline of this Part

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

New section 15P - Registered compilations-information requirements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

New section 15T - Registration of compilations

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

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

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

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

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

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

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

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

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

New section 15U - Compilations-rules

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

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

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

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

A new heading is inserted for Division 3 of Part 2 of Chapter 2, 'Division 3-Editorial changes and other changes'.

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

·
Interpretation Act 1987 (NSW) , section 45E
·
Interpretation of Legislation Act 1984 (Vic) , section 54A and Schedule 1
·
Reprints Act 1992 (Qld) , part 4
·
Reprints Act 1984 (WA) , section 7
·
Legislation Revision and Publication Act 2002 (SA) , section 7
·
Legislation Act 2001 (ACT) , part 11.3.

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

·
Legislation Act 2012 (NZ) , subpart 2, and
·
Legislation Publication Ordinance (Cap 614) (HK), Part 4.

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

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

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

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

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

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

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

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

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

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

New section 15X - Definition of editorial change

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

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

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

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

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

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

New section 15Y - Simplified outline of this Part

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

New section 15Z - Scope of this Part

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

New section 15ZA - Authorised versions

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

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

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

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

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

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

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

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

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

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

New section 15ZB - Judicial notice

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

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

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

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

PART 3 - LEGISLATIVE INSTRUMENTS AND NOTIFIABLE INSTRUMENTS GENERALLY

Legislative Instruments Act 2003

Item 27 - Part 2 (heading)

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

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

New section 15ZC - Simplified outline of this Part

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

Item 28 - Section 16 (heading)

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

Item 29 - Subsection 16(1)

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

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

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

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

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

Item 32 - Part 3 (heading)

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

Item 33 - Subsection 17(1)

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

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

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

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

Item 34 - Section 17 (note)

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

Item 35 - Section 18

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

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

Item 36 - Part 4

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

Item 37 - Part 5 (heading)

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

Item 38 - Before section 37

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

New section 36 - Simplified outline of this Part

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

Item 39 - Section 37 (note)

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

Item 40 - Subsection 38(1)

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

Item 41 - Subsection 38(2)

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

Item 42 - Subsection 38(3)

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

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

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

Item 44 - Section 39

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

New section 39 - Tabling of explanatory statements

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

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

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

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

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

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

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

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

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

Item 46 - Subsection 44(1)

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

Item 47 - Subsections 44(2) and (3)

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

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

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

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

Item 48 - Subsection 45(3)

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

Item 49 - Section 48

New section 48 - Remaking disallowed legislative instruments

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

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

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

·
if the disallowance motion was actively voted on by the House under existing subsection 42(1), the disallowance motion must be rescinded by that House, and
·
if the disallowance motion was passed by default under existing subsection 42(2), the House must approve remaking.

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

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

Item 50 - Part 5A (heading)

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

Item 51 - Before Division 1 of Part 5A

Item 51 inserts a new section 48AA.

New section 48AA - Simplified outline of this Part

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

Item 52 - Subsection 48A(1)

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

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

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

Item 53 - Subsection 48A(2)

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

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

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

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

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

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

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

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

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

Item 55 - Subsections 48B(1) and (2)

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

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

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

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

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

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

·
the commencement (or the last commencement) provided for in the commencement instrument (subparagraph (2)(a)(i))
·
if the commencement instrument provides for the commencement of a whole Act or instrument, the last of the provisions of the primary Act or instrument that have not commenced are repealed by another Act or instrument (subparagraph (2)(a)(ii))
·
if the commencement instrument provides for the commencement of a whole Act or instrument, the occurrence of an event which means that the commencement of the primary Act or instrument cannot occur as provided for in the commencement instrument (subparagraph (2)(a)(iii))
·
if the commencement instrument provides for the commencement of a provision (or provisions) of the primary Act or instrument, the repeal of that provision or provisions by another Act or instrument or the occurrence of an event which means the commencement cannot occur (subparagraph (2)(a)(iv).

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

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

Item 57 - Subsection 48C(1)

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

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

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

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

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

Item 60 - Subsection 48C(2)

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

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

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

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

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

Item 61 - At the end of section 48C

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

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

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

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

Item 63 - Subsection 48D(1)

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

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

Item 64 - Subsection 48D(2)

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

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

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

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

·
the commencement, or the last commencement, that the commencement provision provides for (subparagraph (2)(a)(i))
·
if the commencement provision applies to a whole Act or instrument and the last of the provisions of that Act or instrument that have not commenced are repealed by another instrument, that repeal (subparagraph (2)(a)(ii))
·
if the commencement provision applies to a whole Act or instrument and that Act or instrument or the last provision of that Act or instrument which is yet to commence cannot commence because of an event, the occurrence of that event (subparagraph (2)(a)(iii)), or
·
if the commencement provision applies to a provision of an Act or instrument, and that provision is repealed or cannot commence because of an event, that repeal or the occurrence of that event (subparagraph (2)(a)(iv)).

Item 65 - Section 48E (heading)

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

Item 66 - Subsections 48E(1) and (2)

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

Item 67 - Part 6 (heading)

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

Item 68 - Before section 49

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

New section 48F - Simplified outline of this Part

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

Item 69 - Subsection 50(3)

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

Item 70 - Subsection 50(3) (note)

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

Item 71 - Subsection 51(3)

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

Item 72 - Subsection 51A(3)

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

Item 73 - Subsection 54(1)

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

Item 74 - Subsections 54(2) and (3)

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

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

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

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

·
are not legislative instruments (subparagraph 54(2)(c)(i))
·
are legislative instruments (subparagraph 54(2)(c)(ii))
·
are notifiable instruments (subparagraph 54(2)(c)(iii))
·
are not disallowable (subparagraph 54(2)(c)(iv)), and
·
are not subject to sunsetting (subparagraph 54(2)(c)(v)).

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

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

Item 75 - Part 7 (heading)

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

Item 76 - Sections 55 and 56

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

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

New section 55 - Simplified outline of this Chapter

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

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

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

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

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

Item 77 - Subsections 57(1) and (2)

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

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

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

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

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

Item 79 - Subsection 57(5)

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

Item 80 - At the end of section 57

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

Item 81 - After section 57

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

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

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

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

Item 82 - Paragraph 58(a)

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

Item 83 - Section 59

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

Item 84 - Subsection 60(1)

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

Item 85 - Subsection 60(3)

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

Item 86 - Subsection 60(4)

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

Item 87 - Section 61

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

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

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

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

Item 87 also inserts new section 61A.

New section 61A-Rules made by First Parliamentary Counsel

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

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

·
new section 15E-Federal Register of Legislation-keeping the Register
·
new section 15L-Events affecting the currency or accuracy of the Register
·
new section 15M-Rules for lodgement and registration
·
new section 15P-Registered compilations-information requirements
·
new section 15Q-Definitions of required compilation event and discretionary compilation event etc.
·
new section 15R-Lodgement of compilations of instruments-required compilation events
·
new section 15U-Compilations-rules
·
new section 15ZA-Authorised versions

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

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

·
new section15A-Federal Register of Legislation-establishment and maintenance
·
new section 15D-Federal Register of Legislation-correction of errors
·
new section 15H-Registration of legislative instruments and notifiable instruments, and other documents.

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

Item 88 - Paragraph 62(a)

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

Item 89 - Schedule 1

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

PART 4 - REPEALS

The items in this Part repeal spent Acts.

Acts Citation Act 1976

Item 90 - The whole of the Act

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

Acts Publication Act 1905

Item 91 - The whole of the Act

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

Ordinances and Regulations (Notification) Act 1972

Item 92 - The whole of the Act

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

PART 5 - AMENDMENTS OF OTHER ACTS

Acts Interpretation Act 1901

Items 93 and 94 - Section 1A

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

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

Item 95 - Subsection 2(1) (note)

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

Item 96 - Section 2B

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

Item 97 - Section 2B (definition of Proclamation)

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

Item 98 - Section 3

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

Item 99 - At the end of section 13

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

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

·
only indicates the effect of an element of the Act
·
is accessible in an electronic version of the Act or compilation, and
·
does not appear in the printed text of an Act (or an amendment of the Act), as enacted by the Parliament, or any other printed version of the Act or compilation.

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

Item 100 - Section 15AE

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

Item 101 - Subsection 33(3AB)

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

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

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

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

Item 102 - Subsection 33(3AB) (note)

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

Item 103 - Part 9 (heading)

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

Item 104 - Section 40 (heading)

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

Item 105 - Before subsection 40(1)

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

·
the short title of the Act (subparagraph (1A)(a)(i))
·
the secular year in which it was passed, and its number (subparagraph (1A)(a)(ii)), or
·
a unique identifier given to the Act in accordance with the rules prescribed under the Legislation Act (subparagraph (1A)(a)(iii)).

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

·
any name the instrument gives itself (subparagraph (1A)(b)(i))
·
a unique identifier given to the instrument in accordance with the rules prescribed under the Legislation Act (subparagraph (1A)(b)(ii))
·
if the instrument was numbered under a Commonwealth law - the year it was made and its number along with a reference to the kind of instrument if necessary (subparagraph (1A)(b)(iii))
·
if the instrument was notified or published in the Gazette - the date and (if necessary) number and page of the Gazette in which it was notified or published (subparagraph (1A)(b)(iv)), or
·
the date it was made, along with a reference to the Act or instrument, and (if necessary) provision, under which it was made (subparagraph (1A)(b)(v)).

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

Item 106 - Paragraph 40(1)(a)

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

Item 107 - Part 10 (heading)

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

Item 108 - Subsection 46(1)

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

Item 109 - Paragraph 46(1)(b)

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

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

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

Item 111 - Section 46 (note)

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

Item 112 - Subsection 46AA(1)

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

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

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

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

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

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

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

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

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

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

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

Item 116 - Section 46AA (note)

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

Item 117 - Section 46B

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

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

Defence Act 1903

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

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

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

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

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

Item 119 - Subsection 58B(1)

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

Item 120 - Subsection 58B(1A)

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

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

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

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

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

Item 122 - Subsection 124(1A)

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

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

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

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

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

Defence Force Discipline Act 1982

Item 124 - Subsection 3(10)

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

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

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

Item 125 inserts a new note to subsection 3(10) of the Defence Force Discipline Act. The note states that section 14 of the Legislation Act would allow a regulation to prescribe matters by reference to a determination under section 58B of the Defence Act as in force at a particular time or from time to time, as these instruments would be disallowable legislative instruments for the purposes of the Legislation Act. Defence Force Retirement and Death Benefits Act 1973

Item 126 - Subsection 131(4)

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

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

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

Items 128 to 165

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

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

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

·
editorial changes in the preparation of compilations of Acts and legislative instruments, using the new powers given to the First Parliamentary Counsel in the amendments in the Bill (new section 15V)
·
omnibus technical amendments by Statute Law Revision Bills or portfolio legislation amendments of Acts or instruments, and
·
omnibus technical amendments to legislative instruments using the new regulation-making power under the Legislation Act (item 87).

Family Law Act 1975

Item 128 - Section 26E (heading)

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

Item 129 - Section 26E

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

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

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

Item 131 - Subsections 37A(14)

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

Item 132 - Subsection 40(1)

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

Item 133 - Subsection 123(2)

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

Item 134 - Subsection 123(2A)

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

Item 135 - Paragraph 125(1)(baa)

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

Federal Circuit Court of Australia Act 1999

Item 136 - Paragraph 41(10)(b)

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

Item 137 - Subsection 81(3)

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

Item 138 - Subsection 81(4)

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

Item 139 - Subsection 120(4)

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

Federal Court of Australia Act 1976

Item 140 - Subsection 59(4)

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

Item 141 - Subsection 59(5)

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

Item 142 - Section 59A (heading)

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

Item 143 - Section 59A

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

Great Barrier Reef Marine Park Act 1975

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

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

Item 145 - Section 39ZF (note)

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

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

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

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

Item 147 - Section 40 (heading)

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

Item 148 - Section 40

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

Human Rights (Parliamentary Scrutiny) Act 2011

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

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

Item 150 - Subsection 9(1)

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

Item 151 - Subsection 9(1) (note)

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

Judiciary Act 1903

Item 152 - Subsection 86(2)

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

Item 153 - Subsection 86(3)

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

Item 154 - Paragraph 88(cb)

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

Motor Vehicle Standards Act 1989

Item 155 - Section 7 (note)

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

Item 156 - Section 9 (note)

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

Parliamentary Counsel Act 1970

Item 157 - Paragraph 3(1)(g)

Item 157 amends paragraph 3(1)(g) of the Parliamentary Counsel Act 1970 to replace references to the Acts Publication Act (repealed by item 91) and the Legislative Instruments Act 2003 with a reference to the Legislation Act. Protection of the Sea (Prevention of Pollution from Ships) Act 1983

Item 158 - Subsection 22A(8)

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

Item 159 - Subsection 34(1) (note)

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

Item 160 - Subsection 34(8)

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

Radiocommunications Act 1992

Item 161 - Subsection 82(4)

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

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

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

Telecommunications Act 1997

Item 163 - Paragraph 589(5)(b)

Item 163 amends paragraph 589(5)(b) of the Telecommunications Act 1997 to remove a reference to the Legislative Instruments Act 1997 and replace it with a reference to the Legislation Act. This change is consequential to the repeal of section 61 of the Legislative Instruments Act 2003, which deals with references to earlier Legislative Instruments Acts, by item 87. Trade Marks Act 1995

Item 164 - Subsection 6(3)

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

Item 165 - Subsection 18(2)

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

PART 6 - REFERENCES TO THE LEGISLATIVE INSTRUMENTS ACT 2003

Item 166 - References to the Legislative Instruments Act 2003

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

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

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

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

·
references to the Legislative Instruments Act are to be read as references to the Legislation Act
·
references to Part 5 of the Legislative Instruments Act (parliamentary scrutiny of legislative instruments) are to be read as references to Part 2 of Chapter 3 of the Legislation Act
·
references to Part 6 of the Legislative Instruments Act (sunsetting) are to be read as references to Part 4 of Chapter 3 of the Legislation Act, and
·
references to any other provision of the Legislative Instruments Act are to be read as references to the corresponding provision of the Legislation Act, whether or not the number of the provision is the same.

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

·
editorial changes in the preparation of compilations of Acts and legislative instruments, using the new powers given to the First Parliamentary Counsel in the amendments in the Bill (new section 15V)
·
omnibus technical amendments by Statute Law Revision Bills or portfolio legislation amendments of Acts or instruments, and
·
omnibus technical amendments to legislative instruments using the new regulation-making power under the Legislation Act (item 87).

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

PART 7 - APPLICATION, SAVINGS AND TRANSITIONAL

Part 7 contains application, savings and transitional provisions.

Item 167 - Application of amendments to instruments - general

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

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

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

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

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

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

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

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

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

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

Item 170 - Application of amendments - incorporation of material in instruments

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

Item 171 - Application of amendments to instruments - general

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

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

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

Item 173 - Transitional - Federal Register of Legislation

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

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

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

Item 174 - Application of amendments - gazettal and other publication requirements

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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