Bills Digest No. 11 2005–06
Acts Interpretation Amendment (Legislative Instruments)
Bill 2005
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
Acts
Interpretation Amendment (Legislative Instruments)
Bill 2005
Date Introduced: 23 June 2005
House: Senate
Portfolio: Attorney-General
Commencement:
Sections 1 to 3 of the Act commence on assent, schedule 1 items
commence retrospectively from 1 January 2005.
The purpose of
the Bill is to introduce a new section 15AE to the Acts
Interpretation Act 1901 which defines what is meant by a
provision of a law that either describes an instrument as a
legislative instrument or as not being a legislative
instrument.
The Legislative Instruments Act 2003 (LIA) was assented
to on 17 December 2003.(1) The LIA commenced on 1
January 2005.
The purpose of the Legislative Instruments Act 2003 was
to establish a regime to reform and manage procedures for the
making, scrutiny and publication of Commonwealth legislative
instruments by
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establishing a Federal Register of Legislative Instruments
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encouraging rule-makers to undertake appropriate
consultation
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encouraging high standards in drafting legislative instruments
to promote their legal effectiveness, clarity and their
intelligibility to users
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providing public access to legislative instruments
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establishing improved mechanisms for Parliamentary scrutiny of
legislative instruments
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establishing sunsetting mechanisms to ensure periodic review of
legislative instruments and if they no longer have a continuing
purpose, to repeal them.(2)
All legislative instruments are now caught by the LIA unless
they are either declared not to be legislative instruments
or listed in the table appearing in section 7 of the LIA or in the
regulations. Other legislative instruments may fall within the
definition of section 6 of the LIA but be exempt from parliamentary
scrutiny if they appear in the table in section 44 or in the
regulations.
If an instrument is a legislative instrument for the purposes of
the LIA, the instrument will be registered on the Federal Register
of Legislative Instruments. The instruments will be publicly
available. They will then be subject to the provisions of the LIA
relating to parliamentary scrutiny. All legislative instruments
will be tabled and subject to disallowance procedures (unless
exempt) and to sunsetting procedures (unless exempt).
Prior to 2003, regulations were subject to parliamentary
scrutiny and disallowance under Part XII of the Acts
Interpretation Act 1901. Other instruments could be declared
to be disallowable instruments in accordance with section 46A of
the Acts Interpretation Act 1901. Section 46A has now been
repealed by the Legislative Instruments (Transitional
Provisions and Consequential Amendments) Act 2003 and Part XII
of the Acts Interpretation Act 1901 has been
substantially repealed to accord with the changes brought about by
the Legislative Instruments Act 2003.
The purpose of an Acts Interpretation Act is to assist in the
interpretation of words that appear in many Acts, or to remove the
need for repetition of common provisions relating to commencement
dates, computation of time and gender inclusive language.
(3) All jurisdictions in Australia have an
interpretation act and in the case of the Commonwealth, that act is
the Acts Interpretation Act 1901.
To avoid such repetition of words or terms, Acts Interpretation
Acts define the word or term concerned thereby removing the need to
define it each time it occurs in a piece of legislation. By placing
a definition in the Acts Interpretation Act, there is no need to
repeat the definition in each piece of legislation but rather
include an indication as to whether an instrument is a legislative
instrument or not.
Since the commencement of the Legislative Instruments Act
2003 in 2005, certain legislation has indicated whether a
particular legislative instrument is, or is not, an instrument for
the purposes of the Legislative Instruments Act 2003.
Amendments are proposed to the Acts Interpretation Act
1901 to simplify the language that must be used to identify an
instrument as being either a legislative instrument or as not being
a legislative instrument. Since the commencement of the LIA, a
longer form of words has been used in statutes. The form of words
usually employed in the case of legislative instruments is along
the lines of section 19 of the Superannuation Act
2005, which says:
A determination under item 3 or 5 of the table in
subsection (2) is a legislative instrument for the purposes of the
Legislative Instruments Act 2003.
As the Explanatory Memorandum points out, simplified drafting
will mean that legislation need only say something along the lines
of the Minister may, by legislative instrument, determine
(4)
Schedule 1 Item 1 introduces a new
subsection 15AE(1) to Part IV of the Acts
Interpretation Act 1901 to define what is meant by
instruments being described as legislative instruments in
provisions of a law. New subsection 15AE (1)
provides that the legislative instrument must be in writing and is
expressed to be a legislative instrument for the purposes of that
Act. New subsection 15AE (2) clarifies that
describing something as a legislative instrument does not mean it
is of a legislative character.
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Instruments may have a legislative character, an administrative
character or contain elements of both.
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An instrument may be described as a legislative instrument and
may actually have a legislative character
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Or, an instrument may be described as a legislative instrument
and may not necessarily have a legislative character
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However for the purposes of the Act s registration,
consultation, parliamentary scrutiny and sunsetting regimes, if an
instrument is described as a legislative instrument then
it will be treated as a legislative instrument under the
Act.
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For instruments described in legislation as not being
legislative instruments, new subsection
15AE (3) provides that they will not be legislative
instruments for the purposes of the LIA. However, that does not
mean that the instrument may not be of a legislative character
(new subsection 15AE(4)).
If a legislative instrument is so described, no inferences can
be drawn from the fact that other instruments in the same piece of
legislation or in other laws may be described as legislative
instruments or as not being legislative instruments (new
subsection 15AE(5)).
Items 2-5 amend subsections 46(1), 46AA(1), 46B(2) and
paragraph 46B(1)(a) of the Acts Interpretation Act
1901. The provisions relate to non-legislative instruments and
resolutions and how they are treated under that Act. This bill
seeks to amend the occurrences of within the meaning of in those
provisions to for the purposes of for consistency with new section
15 AE. Sections 46, 46AA and 46B were all new provisions inserted
into the Acts Interpretation Act 1901 by Legislative Instruments (Transitional
Provisions and Consequential Amendments) Act 2003 and that
commenced immediately after the commencement of the provisions of
the LIA Act.
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See Legislative
Instrument Bill 2003, Bills Digest No 26, 2003 04 and
Legislative
Instruments (Transitional Provisions and Consequential Amendments)
Bill 2003, Bills Digest No. 54, 2003 04.
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Legislative Instruments Bill 2003, Bills Digest No. 26, 2003 04,
at p. 1.
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385 185 Use of Interpretation Acts, Halsburys Laws of Australia,
Butterworths Online.
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Explanatory Memorandum, p. 3.
Moira Coombs
8 August 2005
Bills Digest Service
Information and Research Services
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ISSN 1328-8091
© Commonwealth of Australia 2005
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Published by the Parliamentary Library, 2005.
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