Supplementary Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)Notes on amendment
Schedule 1, page 4 (after line 20)
This amendment adds three new items at the end of the Schedule.
This item amends subsection 46B(11) of the Acts Interpretation Act 1901 (the AIA) to provide that section 44 of the Legislative Instruments Act 2003 (the LIA) does not apply to disallowable non-legislative instruments.
Section 44 of the LIA describes those legislative instruments which are not subject to disallowance under section 42 of the LIA. Subsection 44(2) contains a table of instruments which are not subject to section 42 of the LIA unless they are subject to disallowance under their enabling legislation or by means of some other Act.
It is clear that section 44 could not have any application to disallowable non-legislative instruments as section 44 is expressed to apply to legislative instruments. Further, disallowable non-legislative instruments are instruments that are expressly declared by their enabling provision or by another provision of an Act or instrument to be disallowable non-legislative instruments for the purposes of section 46B of the AIA. However, since subsection 46B(11) of the AIA does not specifically exclude section 44 of the LIA from application to disallowable non-legislative instruments, this may create uncertainty for some users of the LIA and the AIA. The amendment will simply confirm that section 44 has no application to disallowable non-legislative instruments.
This item amends subsection 46B(11) of the AIA to clarify the application of section 37 of the LIA to disallowable non-legislative instruments.
Section 37 sets out the purpose of Part 5 of the LIA, being to facilitate the parliamentary scrutiny of, and set out the circumstances for and manner of disallowance of, registered legislative instruments.
Paragraph 46B(11)(a) of the AIA says that, for the purposes of applying relevant provisions of Part 5 of the LIA to disallowable non-legislative instruments, references in Part 5 of the LIA to a legislative instrument or instruments should be read as references to a disallowable non-legislative instrument or instruments. However, as section 37 of the LIA refers to legislative instruments as 'registered', it is not clear whether paragraph 46B(11)(a) of the AIA applies so that the reference in section 37 of the LIA to 'registered legislative instruments' can be read as a reference to 'disallowable non-legislative instruments'.
The proposed amendment will insert a new paragraph 46B(11)(aa) in subsection 46B(11) of the AIA to provide that, for the purposes of disallowable non-legislative instruments, section 37 of the LIA should be read as if the word 'registered' was omitted. The amendment is specific to section 37 because the phrase 'registered legislative instruments' does not appear in any other provision of Part 5 which is applicable to disallowable non-legislative instruments. The amendment made by new paragraph 46B(11)(ca) to be inserted by new item 8 is a companion measure.
The proposed amendment will also provide, for the purposes of disallowable non-legislative instruments, that section 37 of the LIA should be read as if the note to that section were repealed. The note alerts the reader to the fact that certain legislative instruments may not be subject to disallowance. As discussed above, in the explanation for item 6, disallowable non-legislative instruments are not caught by section 44 of the LIA, and so cannot be exempt from disallowance.
The amendment does not have any effect of substance as the purpose of Part 5, outlined in section 37 of the LIA, does not affect the status of the instruments which are subject to the procedures in Part 5. The amendment merely clarifies that all aspects of Part 5 relevant to disallowable non-legislative instruments apply to those instruments.
This item inserts three new paragraphs after paragraph 46B(11)(c) of the AIA.
Proposed paragraph 46B(11)(ca) will provide that, for the purposes of applying relevant provisions of Part 5 of the LIA to disallowable non-legislative instruments, references in Part 5 of the LIA to 'registered' should be read as if they were references to 'made'.
Prior to the commencement of the LIA and the repeal of sections 48, 48A, 48B, 49, 49A and 50 of the AIA by the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 , the key date for disallowable instruments was the date of making. This was the point from which time was measured to determine certain things such as when an instrument needed to be tabled.
As the key date for legislative instruments is the date of registration, Part 5 of the LIA uses this as the starting point for determining when certain things must be done, such as when legislative instruments must be tabled. However, the date of registration is not meaningful for disallowable non-legislative instruments as they are not registered.
The date of making is already recognised by the AIA as the date from which certain periods are measured for disallowable non-legislative instruments. For example, subsection 46B(9) of the AIA uses the date an instrument is made as the starting point for determining the period in which a disallowable non-legislative instrument must be laid before each House of the Parliament. The amendment will clarify the meaning of 'registered' in Part 5 of the LIA when applied to disallowable non-legislative instruments for the benefit of users of the AIA.
Proposed paragraphs 46B(11)(cb) and (cc) will provide that, for the purposes of disallowable non-legislative instruments, cross-references in Part 5 of the LIA to section 38 of the LIA should be read as references to subsections 46B(9) and (10) of the AIA.
Subsection 46B(11) of the AIA provides that section 38 of the LIA does not apply to disallowable non-legislative instruments. Section 38 of the LIA sets out the tabling requirements for legislative instruments as well as the consequences of failure to table. The tabling requirements for disallowable non-legislative instruments differ slightly from those applicable to legislative instruments. The tabling requirements for disallowable non-legislative instruments are contained in subsections 46B(9) and (10) of the AIA.
Sections 45 and 46 of the LIA currently contain cross-references to section 38 of the LIA but do not also acknowledge the equivalent provisions in the AIA for disallowable non-legislative instruments. The amendment will clarify the operation of sections 45 and 46 of the LIA and will ensure that the meaning of the cross-references in sections 45 and 46 of the LIA to section 38 of the LIA is clear when applied to disallowable non-legislative instruments.