Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (140 of 2003)

Schedule 1   Amendment and repeals of other legislation

Acts Interpretation Act 1901

6   Sections 46 and 46A

Repeal the sections, substitute:

46 Construction of instruments

(1) If a provision confers on an authority the power to make an instrument that is neither a legislative instrument within the meaning of the Legislative Instruments Act 2003 nor a rule of court, then, unless the contrary intention appears:

(a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and

(b) expressions used in any instrument so made have the same meaning as in the enabling legislation; and

(c) any instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the authority.

(2) If any instrument so made would, but for subsection (1), be construed as being in excess of the authority’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.

(3) If a provision confers on an authority the power to make an instrument (that is not a legislative instrument or a rule of court):

(a) specifying, declaring or prescribing a matter or thing; or

(b) doing anything in relation to a matter or thing;

then, in exercising the power, the authority may identify the matter or thing by reference to a class or classes of matters or things.

Note: This provision has a parallel, in relation to legislative instruments, in section 13 of the Legislative Instruments Act 2003.

46AA Prescribing matters by reference to other instruments

(1) If legislation authorises or requires provision to be made in relation to any matter in an instrument that is neither a legislative instrument within the meaning of the Legislative Instruments Act 2003 nor a rule of court, that instrument may, unless the contrary intention appears, make provision in relation to that matter:

(a) by applying, adopting or incorporating, with or without modification, the provisions of any Act, or of any disallowable legislative instrument within the meaning of the Legislative Instruments Act 2003, as in force at a particular time or as in force from time to time; or

(b) subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at the time when the first-mentioned instrument takes effect.

(2) Unless the contrary intention appears, the instrument may not make provision in relation to that matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

Note: This provision has a parallel, in relation to legislative instruments, in section 14 of the Legislative Instruments Act 2003.

46B Disallowable non-legislative instruments

(1) This section applies to instruments:

(a) that are neither legislative instruments within the meaning of the Legislative Instruments Act 2003 nor rules of court; and

(b) that are made under a provision of an Act or legislative instrument (the enabling provision ); and

(c) that are expressly declared by the enabling provision or by another provision of the Act or instrument to be disallowable instruments for the purposes of this section.

(2) An instrument to which this section applies that is made on or after the commencing day within the meaning of the Legislative Instruments Act 2003, or a particular provision of such an instrument, takes effect from:

(a) the day specified in the instrument for the purposes of the commencement of the instrument or provision; or

(b) the day and time specified in the instrument for the purposes of the commencement of the instrument or provision; or

(c) the day, or day and time, of the commencement of an Act, or of a provision of an Act, or of the occurrence of an event, that is specified in the instrument for the purposes of the commencement of the instrument or provision; or

(d) in any other case - the first moment of the day next following the day of notification under subsection (5).

(3) If:

(a) an instrument to which this section applies is expressed to take effect before the day of its notification under subsection (5); but

(b) the instrument, or a provision of the instrument:

(i) would adversely affect the rights of a person (other than the Commonwealth or an authority of the Commonwealth) at a time before the instrument is notified; or

(ii) would result in the imposition of liabilities on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done, or omitted to be done, at a time before the instrument is notified;

the instrument or provision is taken to be of no effect in respect of the period before it is notified to the extent that it would have the effect described in subparagraph (b)(i) or (ii).

(4) The effect of subsections (2) and (3) on an instrument is subject to any contrary provision for commencement of the instrument in the enabling legislation for the instrument if the enabling legislation is an Act or a provision of an Act.

(5) An instrument to which this section applies must be notified in the Gazette and, if the instrument is not so notified by being published in full in the Gazette, a notice in the Gazette of the instrument’s having been made, and of the place or places where copies of it can be purchased, is sufficient compliance with that requirement.

(6) If a notice of the making of an instrument is published in accordance with subsection (5), copies of the instrument must, at the time of publication of the notice or as soon as practicable thereafter, be made available for purchase at the place, or at each of the places, specified in the notice.

(7) If, on the day of publication of a notice referred to in subsection (5), there are no copies of the instrument to which the notice relates available for purchase at the place, or at one or more of the places, specified in the notice, the Minister administering the enabling provision must cause to be laid before each House of the Parliament, within 15 sitting days of that House after that day, a statement that copies of the instrument were not so available and the reason why they were not so available.

(8) Failure to comply with a requirement of subsection (6) or (7) in relation to any instrument does not constitute a failure to comply with subsection (5).

(9) A copy of an instrument to which this section applies must be laid before each House of the Parliament not later than 6 sitting days of that House after the instrument is made and, for that purpose, must be delivered to the House by the person or body authorised to make the instrument.

(10) If a copy of an instrument is not laid before each House of the Parliament in accordance with subsection (9), it thereupon ceases to have effect.

(11) Unless the law otherwise provides, Part 5 of the Legislative Instruments Act 2003, other than sections 38, 39 and 40, applies in relation to an instrument to which this section applies as if:

(a) references to legislative instruments or to a legislative instrument were references to an instrument to which this section applies; and

(b) references to enabling legislation were references to the enabling provision; and

(c) references to repeal were references to revocation; and

(d) references in subsection 45(2) of the Legislative Instruments Act 2003 to another legislative instrument included references to a provision of another non-legislative instrument made under the enabling provision.