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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using information available at the time of production. The views expressed
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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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