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Purpose of guideline
This guideline provides a brief outline of the Senate Standing Committee for the Scrutiny of Delegated Legislation's expectations in relation to explanatory statements (ES) accompanying legislative instruments that amend or repeal another instrument1.
Background
Some Acts of Parliament, as well as empowering a relevant person to make an instrument, expressly provide that the instrument-maker may amend or repeal the instrument.
However, where the enabling legislation does not expressly confer a power to amend or repeal an instrument, subsection 33(3) of the Acts Interpretation Act 1901 will apply. Subsection 33(3) provides that the power to make a legislative instrument 'shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument'.
The committee's expectations
When an instrument repeals or amends another instrument and there is no express power in the enabling legislation to do so, the committee considers, in the interests of promoting clarity for users, that the ES should identify that the instrument-making power includes the power set out in subsection 33(3) of the Acts Interpretation Act 1901.
If, on the other hand, the enabling legislation expressly confers a power to amend or repeal the instrument, this should be referenced in the ES.
Example of a form of words to be included in Explanatory Statements
The committee provides the following example of a form of words which may be included in an ES where subsection 33(3) of the Acts Interpretation Act 1901 applies:
In addition to the power to make this instrument under [section x of the xx Act], subsection 33(3) of the Acts Interpretation Act 1901 provides that where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.
Further information
For further information please see Senate Standing Committee for the Scrutiny of Delegated Legislation, Delegated Legislation Monitors and in particular Delegated legislation monitor 8 of 2013, p. 511 and Appendix 3.
Contact:
Committee Secretary
Senate Scrutiny of Delegated Legislation Committee
Department of the Senate
PO Box 6100
Parliament House
Canberra ACT 2600
Australia
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