Legislation Act 2003

Chapter 1 - Introduction  

Part 2 - Key concepts for legislative instruments and notifiable instruments  

SECTION 8   Definition of legislative instrument  

(1)  
A legislative instrument is an instrument to which subsection (2), (3), (4) or (5) applies.

Note:

Instruments that can be legislative instruments may be described by their enabling legislation in different ways, for example as regulations, rules, ordinances or determinations.

Primary law provides for something to be done by legislative instrument

(2)  
If a primary law gives power to do something by legislative instrument, then:


(a) if the thing is done, it must be done by instrument; and


(b) that instrument is a legislative instrument .

Example 1:

A primary law provides that " The Minister may, by legislative instrument, determine licence conditions for the purposes of this section. " .

Example 2:

A primary law provides as follows:

  • " (1) The Chief Executive may, by instrument, determine licence conditions.
  • (2) The Chief Executive may, by instrument, exempt a person from the requirement under this Act to hold a licence.
  • (3) An instrument made by the Chief Executive under subsection (1) or (2) is a legislative instrument. " .
  • Instruments registered on the Federal Register of Legislation

    (3)  
    An instrument made under a power delegated by the Parliament is a legislative instrument if it is registered as a legislative instrument.

    Note:

    An instrument made under a power delegated by the Parliament may be a legislative instrument because it is registered as a legislative instrument, whether or not it is a legislative instrument because of another provision of this section.

    Instruments that determine or alter the law etc.

    (4)  
    An instrument is a legislative instrument if:


    (a) the instrument is made under a power delegated by the Parliament; and


    (b) any provision of the instrument:


    (i) determines the law or alters the content of the law, rather than determining particular cases or particular circumstances in which the law, as set out in an Act or another legislative instrument or provision, is to apply, or is not to apply; and

    (ii) 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.
    Instruments declared to be legislative instruments

    (5)  
    An instrument is a legislative instrument if it is declared by section 10 or 57A to be a legislative instrument.

    Note:

    Section 10 declares regulations and some other instruments to be legislative instruments. Section 57A declares some instruments to be legislative instruments that were made under a power delegated by the Parliament before 1 January 2005, when the substantive provisions of this Act commenced.

    Instruments that are not legislative instruments

    (6)  
    Despite subsections (4) and (5), an instrument is not a legislative instrument if it is:


    (a) declared by an Act not to be a legislative instrument; or


    (b) prescribed by regulation for the purposes of this paragraph.

    (7)  
    However, subsection (6) does not apply to an instrument that is a legislative instrument under subsection (3) by registration.

    (8)  
    Despite anything else in this section, the following are not legislative instruments, and cannot become legislative instruments under subsection (3) (by being registered as legislative instruments):


    (a) an instrument that is a notifiable instrument because of subsection 11(1) (primary law gives power to do something by notifiable instrument);


    (b) a commencement instrument;


    (c) a compilation of a legislative instrument or notifiable instrument;


    (d) rules of court or a compilation of rules of court;


    (e) an explanatory statement for a legislative instrument, or rules of court mentioned in paragraph (d).

    Note:

    Rules of court may, however, be registered under this Act, and may be otherwise treated as if they were legislative instruments by their enabling legislation.


     

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