Bills Digest No. 54 2003-04
Legislative Instruments (Transitional Provisions and
Consequential Amendments) Bill 2003
WARNING:
This Digest was prepared for debate. It reflects the legislation as
introduced and does not canvass subsequent amendments. This Digest
does not have any official legal status. Other sources should be
consulted to determine the subsequent official status of the
Bill.
CONTENTS
Passage History
Purpose
Background
Main Provisions
Endnotes
Contact Officer & Copyright Details
Passage History
Legislative Instruments
(Transitional Provisions and Consequential Amendments) Bill
2003
Date Introduced:
26 June 2003
House: House of Representatives
Portfolio: Attorney-General
Commencement:
The formal provisions
commence on Royal Assent. The substantive provisions commence
immediately after the commencement of sections 3 to 62 of the
proposed Legislative Instruments Act
2003.(1)
To make transitional and consequential
amendments related to the proposed Legislative Instruments Act
2003. These amendments include:
-
repealing provisions in the Acts Interpretation Act
1901 that deal with disallowable instruments and regulations.
Legislative instruments will be covered in the proposed Legislative
Instruments Act.
-
inserting provisions in the Acts Interpretation Act to provide a
regime for the disallowance and construction of non-legislative
instruments
-
repealing the Statutory Rules Publication Act 1903. The
publication of statutory rules will be dealt with by the proposed
Legislative Instruments Act. The Amendments Incorporation Act
1905 will be amended to deal with the reprinting of statutory
rules, and
-
applying the proposed Legislative Instruments Act to rules of
court.
Background
As the Purpose section of this Digest
indicates, this Bill is companion legislation to the Legislative
Instruments Bill 2003. The Legislative Instruments Bill 2003 is
designed to establish a comprehensive regime for the registration,
tabling, scrutiny and sunsetting of Commonwealth legislative
instruments. (2) To quote further from the report of the
Senate Regulations and Ordinances Committee, it:
(a) defines a legislative instrument;
(b) establishes a Federal Register of Legislative
Instruments;
(c) encourages high standards in the drafting of
legislative instruments to promote their legal effectiveness,
clarity and intelligibility;
(d) encourages rule-makers to undertake
appropriate consultation;
(e) improves public accessibility;
(f) enhances parliamentary scrutiny; and
(g) establishes a ten-year sunsetting
regime.(3)
Further information about the Legislative
Instruments Bill 2003 can be found in Bills Digest
No. 26 of 2003-04.
Clauses 4 and 5 deal with
transitional matters. Transitional provisions are needed if, for
instance, a statute commences after the commencement of the
proposed Legislative Instruments Act 2003 but refers to legislation
which is repealed by that Act.(4) In such a case, the
transitional provisions will instead apply the relevant provisions
of the proposed Legislative Instruments Act.
Clause 5 enables the
Governor-General to make regulations dealing with transitional
matters. If made within 12 months, those regulations can have a
retrospective effect [subclause 5(2)].
Item 4 of Schedule
1 amends the definition of Proclamation in the Acts
Interpretation Act to include a reference to the Federal Register
of Legislative Instruments established under the Legislative
Instruments Act 2003 . Because Proclamations are legislative
instruments under the proposed Legislative Instruments Act they
will be entered on the Register. The amendment reflects this.
Item 6 repeals sections 46
and 46A of the Acts Interpretation Act which deal with the
construction of statutory instruments and with disallowable
instruments. In relation to legislative instruments, these matters
will be covered by the proposed Legislative Instruments Act.
Item 6 also inserts
proposed sections 46, 46AA and 46B. These new
sections will operate in relation to instruments that are neither
legislative instruments nor rules of court and will cover:
- how to construe such instruments in conformity with
meanings in the enabling legislation and so as not to exceed power
(proposed section 46).
As with existing section 46 of the Acts Interpretation Act,
where a statute gives an authority power to make an instrument that
specifies a matter or thing then the matter or thing can be
identified by reference to a class. Parliament may be interested to
know that in 1998 the Attorney-General s Department published a
review of the Acts Interpretation Act.(5) The review
expressed concern about whether the word thing includes a person or
animal and suggested that section 46 be amended to make this clear.
The suggestion has not been incorporated in the present Bill or in
the equivalent provision in the proposed Legislative Instruments
Act.(6)
-
how those instruments can incorporate other material by
reference such instruments can incorporate the provisions of
Commonwealth Acts or disallowable legislative instruments as in
force at the time of incorporation or from time to time. Such
instruments can also incorporate other material. Unless the
enabling legislation allows, other material can only be
incorporated as in force at the time of incorporation. Parliament
may wish to note that the incorporation of other material may raise
issues about transparency of and accessibility of the law
(proposed section 46AA).
-
disallowance proposed section 46B
contains a disallowance regime for instruments that are neither
legislative instruments nor rules of court if they are expressly
subjected to the regime. Thus, disallowable non-legislative
instruments that adversely impinge on rights or impose liabilities
cannot take effect until they are notified in the Gazette,
unless their enabling legislation provides to the contrary. Failure
to have copies of a disallowable non-legislative instrument
available to the public means that the responsible Minister must
table an explanation in Parliament as to why they were not
available. Disallowable non-legislative instruments must be tabled
within 6 sitting days of being made and cease to have effect if
they are not so tabled. And, with some exceptions, the disallowance
provisions of the proposed Legislative Instruments Act apply to
disallowable non-legislative instruments.
Item 7 repeals sections 48,
48A, 48B, 49, 49A and 50 of the Acts Interpretation Act. These
sections deal with matters such as the tabling and disallowance of
regulations, the requirement that regulations not be re-made during
the tabling or disallowance periods and the effect of the repeal of
regulations. In relation to legislative instruments, these matters
will be dealt with by the proposed Legislative Instruments Act.
The Explanatory Memorandum notes that the Bill
does not attempt to amend all Commonwealth legislation which
presently contains references to sections 48-50 of the Acts
Interpretation Act:
The operation and subject matter of the repealed
provisions will be covered by the 2003 Act where they relate to
legislative instruments, and by the Acts Interpretation Act as
amended by [the] Bill where they relate to non-legislative
instruments, thereby preserving the status quo.
There are, however, a number of pieces of
Commonwealth legislation that modify the operation of sections 48
to 50 of the Acts Interpretation Act in relation to instruments
made under that legislation. Where this is the case, this Bill
continues that modification by transitional provisions or by making
consequential amendments to the enabling legislation so that it
refers to the relevant part of the 2003 Act or the Acts
Interpretation Act.(7)
The Statutory Rules Publication Act deals with
the printing, numbering, gazettal and sale of rules, regulations
and by-laws. It also requires reprinted statutory rules to contain
all the amendments that have been made to the instrument and to
refer to the amending statutory instrument.
The Statutory Rules Publication Act is
repealed by item 33 of the Schedule because the
proposed Legislative Instruments Act will cover all legislative
instruments, including rules, regulations and by-laws. Requirements
about reprints of legislative instruments will be contained instead
in the Amendments Incorporation Act 1905 (item
9).
At present, rules of court made by federal
courts are subject to the notification, tabling and disallowance
provisions of the Acts Interpretation Act.(8)
Under the proposed Legislative Instruments
Act, rules of court are not legislative instruments. However, in
general, the proposed Act will apply to rules of court once the
relevant legislation for each federal court is amended. This will
mean that rules of court will be registered on the Register of
Legislative Instruments, subject to consultation requirements if
they affect business or restrict competition, disallowable by
either House of Parliament, and subject to sunsetting.
In order to effect these changes, the Bill
amends the Family Law Act 1975(9), the
Federal Court Act
1976(10), the Federal Magistrates Act
1999(11), and the Judiciary Act
1903(12) (relating to rules of court for the High
Court). The amendments will remove references to the Acts
Interpretation Act and substitute references applying relevant
provisions of the proposed Legislative Instruments Act.
Subsection 375(1) of the Commonwealth
Electoral Act 1918 enables the High Court to make rules of
court that apply when it sits as the Court of Disputed Returns.
Subsection 375(2) applies certain Acts Interpretation Act
provisions to those rules. Subsection 375(2) is repealed because
amendments to the Judiciary Act applying provisions of the proposed
Legislative Instruments Act will cover all rules made by the High
Court.(13)
The amendments also enable regulations to be
made altering the way in which the proposed Legislative Instruments
Act applies to rules of court.(14) However, the
application of Part 5 of the proposed Act, which deals with
parliamentary scrutiny, cannot be altered by way of regulation.
There may be a question of whether amendment of a primary statute
by regulation (a Henry VIII clause) is an appropriate delegation of
legislative power. Concerns about Henry VIII clauses were expressed
in relation to three provisions in the proposed Legislative
Instruments Act by the Senate Regulations and Ordinances Committee
in its report on the Legislative Instruments Bill 2003 and this
Bill.
Schedule 1 also makes
amendments to a number of other statutes. For instance, it:
-
removes references in some statutes to the Legislative
Instruments Act 1995 (items 8, 34 and 35), the
Legislative Instruments Act 1998 (item 27), and
the Legislative Instruments Act 1997 (item 28)
proposed legislation that was introduced into Parliament but never
enacted
-
adds references to the proposed Legislative Instruments Act 2003
in a number of statutes (items 10 and
11)
-
applies the Acts Interpretation Act as in force at the
commencement of the Legislative Instruments (Transitional
Provisions and Consequential Amendments) Act 2003 to the
Australian Securities and Investments Commission Act 2001
and the Corporations Act 2001 (items 12 and
15). At present, the Acts Interpretation Act s application
is frozen at 1 November 2000.
-
amends the defence of mistake or ignorance of subordinate
legislation found in the Criminal Code to include a reference to
the Legislative Instruments Register (in general terms, a person
charged with an offence found in subordinate legislation will have
a defence if the legislation is not appropriately published)
(item 16)
-
amends the Customs Act 1901 so that Tariff Concession
Orders can be revoked and replaced with retrospective effect. An
explicit amendment of this sort is needed because the proposed
Legislative Instruments Act provides that, unless the contrary
intention appears, legislative instruments which adversely affect
rights will not have a retrospective effect (items 17 and
18), and
-
provides that directions issued by
the Public Service Commissioner are disallowable non-legislative
instruments for the purposes of proposed section 46A of the Acts
Interpretation Act. This preserves the status of the directions as
disallowable instruments(15) (item
32).
-
These sections will commence on a date that is either a 1
January or 1 July and if not commenced within 12 months of Royal
Assent being given to the Act, will commence on the 1 January or 1
July that first occurs after the 12 months period.
-
Senate Regulations and Ordinances Committee,
Legislative Instruments Bill 2003. Legislative Instruments
(Transitional Provisions and Consequential Amendments) Bill 2003.
111th Report, October 2003, p. 7.
-
ibid., pp. 7 8.
-
Repealed legislation would include the Statutory Rules
Publication Act 1903 or section 46A of the Acts
Interpretation Act 1901 (which deals with disallowable
instruments).
-
Attorney-General s Department and Office of Parliamentary
Counsel,
Review of the Commonwealth Acts Interpretation Act 1901,
1998.
-
Proposed section 13, Legislative Instruments Bill 2003.
-
Explanatory Memorandum, p. 1.
-
The relevant Acts Interpretation Act sections are sections 48,
48A, 48B, 49, 49A and 50.
-
Items 19-22.
-
Items 23 and 24.
-
Items 25 and 25.
-
Items 29-31.
-
Items 13 and 14.
-
Proposed paragraphs 26E(c), 37A(14)(c), 123(2)(c) and
125(1)(baa) of the Family Law Act 1975; proposed paragraph
59(4)(c) and proposed section 59A of the Federal Court Act 1976;
proposed paragraph 81(3)(c) of the Federal Magistrates Act
1999 and proposed paragraphs 86(2)(c) and 88(cb) of the
Judiciary Act 1903.
-
They are currently disallowable instruments for the purposes of
existing section 46A of the Acts Interpretation Act.
Jennifer Norberry
28 October 2003
Bills Digest Service
Information and Research Services
This paper has been prepared for general distribution to
Senators and Members of the Australian Parliament. While great care
is taken to ensure that the paper is accurate and balanced, the
paper is written using information publicly available at the time
of production. The views expressed are those of the author and
should not be attributed to the Information and Research Services
(IRS). Advice on legislation or legal policy issues contained in
this paper is provided for use in parliamentary debate and for
related parliamentary purposes. This paper is not professional
legal opinion. Readers are reminded that the paper is not an
official parliamentary or Australian government document.
IRS staff are available to discuss the paper's
contents with Senators and Members and their staff but not with
members of the public.
ISSN 1328-8091
© Commonwealth of Australia 2003
Except to the extent of the uses permitted under the
Copyright Act 1968, no part of this publication may be
reproduced or transmitted in any form or by any means, including
information storage and retrieval systems, without the prior
written consent of the Parliamentary Library, other than by Members
of the Australian Parliament in the course of their official
duties.
Published by the Department of the Parliamentary Library,
2003.
Back to top