Explanatory Memorandum(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)
1. The Bill makes amendments to Commonwealth legislation consequential to the Acts and Instruments (Framework Reform) Act 2015.
2. The Act received Royal Assent on 5 March 2015 and will commence on 5 March 2016 or earlier by Proclamation. Once the Acts and Instruments (Framework Reform) Act commences, it will amend the Legislative Instruments Act 2003 to improve the usability and efficiency of the legislative instruments framework as well as bring the registration and publication of Commonwealth Acts into that framework. It will also amend the Acts Interpretation Act 1901 to clarify provisions relating to references to ministers, departments and other government authorities, and to broaden and strengthen existing provisions relating to machinery of government changes.
3. This Bill assists in implementing these reforms by amending various Acts to:
- update references to the Legislative Instruments Act to refer to the Legislation Act 2003 (as it will be renamed by the Acts and Instruments (Framework Reform) Act)
- update references to parts of the Legislative Instruments Act to refer to the corresponding parts of the Legislation Act
- update provisions which deal with the application of the Legislative Instruments Act to reflect amendments to that Act. For example, it updates the drafting of provisions dealing with the application of section 12 of the Legislative Instruments Act, relating to retrospective operation of legislative instruments, to reflect amendments to that section in the Legislation Act. These amendments do not change the legal effect of the provisions, and
- update references to the Federal Register of Legislative Instruments to refer to the Federal Register of Legislation, as it will be renamed by the Acts and Instruments (Framework Reform) Act.
4. The Bill removes references to certain sunsetting (automatic ceasing) and disallowance exemptions for legislative instruments from a range of enabling Acts. Some of these exemptions are covered by provisions of the Legislative Instruments Act, and their legal effect will be preserved in the Legislation Act. Other exemptions will be added to the Legislative Instruments Regulation 2004 (the Regulations) prior to commencement of the Acts and Instruments (Framework Reform) Act, where this is necessary to preserve their legal effect. These amendments will not alter the disallowance and sunsetting requirements that apply to instruments made under the enabling Acts.
5. Minor amendments are also made to the Legislation Act and the Acts Interpretation Act (as amended by the Acts and Instruments (Framework Reform) Act) to clarify the application of their requirements to forms. These amendments clarify that section 14 of the Legislation Act (incorporation of material into instruments by reference) does not apply to forms, regardless of whether those forms are themselves subject to publication requirements.
6. The Bill also makes amendments to the definition of legislative instrument in the Legislation Act (or in the alternative, the Legislative Instruments Act, depending on the time at which Schedule 2 of the Bill commences) to clarify the status of court rules of states and territories. These amendments put beyond doubt that court rules of states and territories are not legislative instruments for the purposes of the Legislation Act.
7. The Bill also makes minor amendments to the Family Law Act 1975. These amendments make clear that certain provisions of the Family Law Act which set out how the Legislative Instruments Act applies to rules of the Family Court apply to those rules whether they are made under the Family Law Act or another Act. This removes an inconsistency between the Family Law Act and other enabling legislation for federal courts.
8. The Bill also makes other minor consequential amendments to Commonwealth Acts, repeals several spent provisions, and makes minor technical corrections to the Legislation Act.
9. This Bill will have a nil or insignificant financial impact on government departments and agencies. The amendments in Schedule 1 to this Bill make minor technical amendments to various Acts which are consequential on the amendments made by the Acts and Instruments (Framework Reform) Act. They facilitate the implementation of the reforms made by the Acts and Instruments (Framework Reform) Act. These amendments are expected to have nil or insignificant financial impact as they generally do not alter the effect of the law.
10. Schedule 2 makes amendments relating to rules of courts which will not have any financial impact.
11. Schedule 3 makes amendments to provisions of Acts relating to the incorporation of administrative forms into instruments. These amendments will not have any financial impact.