House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Daryl Williams AM QC MP)

Outline and financial impact

Outline

This Bill deals with certain transitional and consequential matters arising from the enactment of the Legislative Instruments Act 2003 (the 2003 Act). These matters include:

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applying the 2003 Act to rules of court;

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repealing sections 46 and 46A of the Acts Interpretation Act 1901 and replacing them with provisions dealing with the construction and disallowance of non-legislative instruments;

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repealing sections 48, 48A, 48B, 49, 49A and 50 of the Acts Interpretation Act; and

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repealing the Statutory Rules Publication Act 1903.

While the repeal of sections 48 to 50 of the Acts Interpretation Act will mean that existing references to those provisions in Commonwealth legislation will be redundant, this Bill does not purport to amend all Commonwealth legislation to remove those references. The operation and subject matter of the repealed provisions will be covered by the 2003 Act where they relate to legislative instruments, and by the Acts Interpretation Act as amended by this Bill where they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.

The Bill includes a retrospective regulation-making power in relation to transitional issues raised by this Bill (including the need to address any saving or application provisions).

Financial impact statement

The amendments by the Legislative Instruments (Transitional Provisions and Consequential Amendments) Bill 2003 have no significant financial impact.

The Financial Impact issues associated with the introduction of the Legislative Instruments Act 2003 and the establishment of the Federal Register of Legislative Instruments are set out in the Explanatory Memorandum for the Legislative Instruments Act 2003.

Notes on clauses

Part 1 - Preliminary

Clause 1: Short title

The short title of this Act is the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003.

Clause 2: Commencement

This clause provides that clauses 1, 2 and 3 of the Bill and any other provision that is not specifically mentioned in this commencement provision, commence on the day on which the Act receives the Royal Assent.

This clause also provides that clauses 4 and 5, which contain transitional provisions, and Schedule 1, which contains consequential amendments to other legislation, commence immediately after the commencement of sections 3 to 62 of the Legislative Instruments Act 2003 (the 2003 Act). Those sections of the 2003 Act contain the provisions establishing regimes for registering, tabling, disallowance and sunsetting of legislative instruments.

Clause 3: Schedule(s)

This clause provides that each Act that is specified in a Schedule is amended as set out in that Schedule.

Part 2 - Transitional provisions

The purpose of this Part is to deal with the situation where legislation commences after the 2003 Act and which purports to apply the Statutory Rules Publication Act 1903 or section 46A of the Acts Interpretation Act to instruments made under it. The Part provides for the translation of those instruments to the 2003 Act notwithstanding the repeal of the Statutory Rules Publication Act and section 46A of the Acts Interpretation Act. The Part also covers translating to the 2003 Act any legislation that modifies the operation of subsection 48(2) of the Acts Interpretation Act and translating to the Acts Interpretation Act (as amended by this Bill) any legislation that contains disallowance provisions for non-legislative instruments.

Clause 4: Transitional Provisions

Subclause 4(1) provides that where legislation, which is introduced into Parliament before the commencement of the 2003 Act but which commences either on the same day as or after that Act, provides that an instrument be published as a statutory rule under the Statutory Rules Publication Act, then that instrument is to be taken to be an instrument referred to in paragraph 6(b) of the 2003 Act. This means that the instrument is a legislative instrument for the purposes of the 2003 Act notwithstanding the repeal of the Statutory Rules Publication Act.

Subclause 4(2) provides for a similar translation to the 2003 Act for instruments made under legislation (that has been introduced but that has not commenced) that expressly provides that an instrument is a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act. Those instruments will be taken to be legislative instruments for the purposes of the 2003 Act.

Subclause 4(3) deals with the situation where legislation, which is introduced into Parliament before the commencement of the 2003 Act but which commences either on the same day as or after that Act, modifies the effect of subsection 48(2) of the Acts Interpretation Act such that delegated legislation made under that legislation may commence retrospectively notwithstanding its adverse effect on rights. The effect of the clause is that references to subsection 48(2) are to be taken to be references to subsection 12(2) of the 2003 Act thereby maintaining the status quo.

Subclause 4(4) provides transitional provisions for instruments that are not covered by the 2003 Act and which are disallowable via the application of Part XII of the Acts Interpretation Act (with or without modification). This includes legislative instruments that are expressly excluded from the operation of the 2003 Act as well as instruments that are non-legislative in character. (The subclause expressly excludes instruments that are declared to be disallowable instruments for the purposes of section 46A of the Acts Interpretation Act. There is no requirement to address these instruments in the transitional provisions because they are legislative instruments for the purposes of the 2003 Act (see subparagraph 6(d)(i) of that Act) and none are expressly excluded from the 2003 Act.)

The effect of this subclause is that instruments, which are not legislative instruments for the purposes of the 2003 Act but which are disallowable under the terms of the enabling legislation, will be disallowable instruments for the purposes of new section 46B of the Acts Interpretation Act. To ensure that the status quo is maintained, the subclause also provides that section 46B may be modified to ensure that it operates in the same way that the provisions of Part XII of the Acts Interpretation Act operated. This subclause is necessary to ensure that such non-legislative instruments continue to be subject to a disallowance regime, as was intended by the enabling legislation made before the commencement of the 2003 Act.

Clause 5: Transitional Regulations

This clause allows the Governor-General to make regulations in relation to matters of a transitional nature which, provided they are made within a year of the commencement of this clause, may commence retrospectively (but not earlier than the commencement of this clause).

Schedule 1 - Amendments and repeals of other legislation

Aboriginal and Torres Strait Islander Commission Act 1989

Items 1 and 2

These items repeal subclause 28(2) of Schedule 4 of the Aboriginal and Torres Strait Islander Commission Act 1989 (ATSIC Act) and insert a note referring to sections in the Federal Court of Australia Act 1976.

Subclause 28(1) provides that Federal Court judges may make rules of court in relation to the determination of electoral disputes under the ATSIC Act. Subclause 28(2) provides that section 48, 48A, 48B, 49 and 50 of the Acts Interpretation Act apply to those rules of court as if references in those sections to regulations were references to rules of court. This had the effect of applying the tabling and disallowance regime for regulations to such rules as if they were regulations. Those provisions of the Acts Interpretation Act will be repealed (see item 7) and replaced with equivalent provisions in the 2003 Act.

A consequential amendment to the Federal Court Act (see items 23 and 24) will apply the majority of the provisions of the 2003 Act to all rules of court made by Federal Court judges; therefore there is no requirement for a provision in the ATSIC Act to the same effect. As a result, subclause 28(2) of Schedule 4 of the ATSIC Act is no longer required, but is replaced by a note referring to the Federal Court Act provisions.

Acts Interpretation Act 1901

Item 3

This item repeals subsection 4(6) of the Acts Interpretation Act, which deals with the application of section 4 of that Act (exercise of certain powers between passing and commencement of an Act) to rules, regulations and by-laws, and replaces it with a new provisions which will apply section 4 of the Acts Interpretation Act to all instruments of a legislative character. This recognises that not all instruments of a legislative character are rules, regulation or by-laws, and that there may be a need to make such instruments after the enactment of the enabling legislation but before its commencement.

Item 4

This item amends the definition of Proclamation in paragraph 17(j) of the Acts Interpretation Act, to include a Proclamation by the Governor-General that is registered on the Federal Register of Legislative Instruments in addition to those published in the Gazette. Proclamations are legislative instruments for the purpose of the 2003 Act (see paragraph 6(e) of the 2003 Act) and therefore, after the commencement of the 2003 Act, will be registered on the Federal Register of Legislative Instruments. The definition of Proclamation needs to reflect this manner of publication.

Item 5

This item makes a consequential amendment to the heading to Part XI of the Acts Interpretation Act by replacing the reference to "Instruments and resolutions" with a reference to "Non-legislative instruments and resolutions". The amendment reflects the change in scope of the Part: provisions dealing with legislative instruments will be in the 2003 Act and provisions dealing with non-legislative instruments will be included in this part of the Acts Interpretation Act as amended by this Bill (see item 6).

Item 6

This item repeals sections 46 and 46A of the Acts Interpretation Act, which deal with the construction of rules, regulations and by-laws and the application of certain provisions of the Acts Interpretation Act to disallowable instruments, and replaces them with new sections 46, 46AA and 46B which relate to non-legislative instruments. The amendments are consequential on the commencement of the 2003 Act, which deals with legislative instruments.

46 Construction of instruments

Proposed section 46 deals with the construction of instruments that are not legislative instruments for the purposes of the 2003 Act and which are not rules of court.

Proposed subsection 46(1) provides that the Acts Interpretation Act will apply to a non-legislative instrument as if it were an Act and as if each provision of the instrument were a section of an Act; that expressions in the instrument have the same meaning as within the enabling legislation; and instruments are not to exceed the power of the authority. Proposed subsection 46(2) provides that where the making of an instrument exceeds the power conferred, then to the extent that the instrument is within power it is valid. Proposed subsection 46(3) provides that where instruments require identification of matters or things those matters or things may be identified by referring to a class or classes.

The equivalent provision for legislative instruments is section 13 of the 2003 Act.

46AA Prescribing matters by reference to other instruments

Proposed section 46AA deals with instruments, which are not legislative instruments for the purposes of the 2003 Act or rules of court, and which incorporate material by reference.

Proposed section 46AA enables non-legislative instruments to make provision for matters by applying, adopting or incorporating (with or without modification) the provisions of any Commonwealth Act, or disallowable legislative instrument as in force at the time of incorporation or from time to time. The clause also enables non-legislative instruments to make provision for matters by applying, adopting or incorporating (with or without modification) the provisions of any other instrument or writing which is in force at the time of incorporation. Subclause 46(2) makes it clear that unless the enabling legislation allows instruments in this latter category to be incorporated "from time to time", then they may only be incorporated in the form that exists as at the date of incorporation.

The equivalent provision for legislative instruments is section 14 of the 2003 Act.

Section 46B - Disallowable non-legislative instruments

Proposed section 46B deals with commencement and disallowance of non-legislative instruments. Proposed section 46B standardises the method of determining when a non-legislative instrument commences with that used for legislative instruments. The equivalent provision for legislative instruments is section 12 of the 2003 Act.

Proposed subsection 46B(1) defines the instruments to which the section applies. This includes instruments that are not legislative instruments for the purposes of the 2003 Act or rules of court, and that are declared by the legislation under which they are made to be a disallowable instrument for the purposes of this section.

Proposed subsection 46B(2) provides the mechanism for determining the commencement day of such an instrument. It provides that an instrument or a provision of an instrument takes effect from a date specified in the instrument (this may be by reference to the commencement of an Act or a provision of an Act, or of the occurrence of an event). If no specification is made then the instrument will take effect from the first moment of the day next following the day when it is notified in the Gazette.

Proposed subsection 46B(3) provides that an instrument, which would adversely impact on the rights of a person other than the Commonwealth or an authority of the Commonwealth, has no effect if it would otherwise take effect before the date when it is notified in the gazette. However, under proposed subsection 46B(4), an instrument is able to operate retrospectively and have an adverse impact on rights if the enabling legislation disapplies the effect of proposed subsections 46B(2) and (3).

Proposed subsections 46B(5)-(8) refer to requirements for the gazettal and sale of instruments to which subsection 46B applies.

Proposed subsections 46B(9)-(10) refer to tabling requirements for instruments to which subsection 46B applies.

Proposed subsection 46(11) provides that Part 5 (Parliamentary scrutiny of legislative instruments) of the 2003 Act will apply to an instrument to which subsection 46B applies in the same way as to legislative instruments, except the provisions in the 2003 Act which relate to the tabling of legislative instruments (sections 38, 39 and 40). Proposed subsections 46B(9)-(10) refers to the tabling requirements for instruments to which subsection 46B applies.

Item 7

This item repeals the following section from the Acts Interpretation Act:

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sections 48 (Regulations);

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48A (Regulations not to be re-made while required to be tabled);

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48B (Regulations not to be re-made while subject to disallowance);

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49 (Disallowed regulations not to be re-made unless resolution rescinded or House approves);

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49A (prescribing matter by reference to other instruments); and

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50 (Effect of repeal of regulations).

The sections relate to regulations, in particular the requirements for gazettal, tabling, disallowance, and the effect of repeal of regulations. Proposed sections 46, 46AA and 46B of the Acts Interpretation Act (see item 6) will address these issues for non-legislative instruments while the 2003 Act contains the equivalent provisions for legislative instruments.

Corporations Act 2001

Item 15

This item repeals section 5C of the Corporations Act 2001, which freezes the Acts Interpretation Act in its application to the Corporations Act as at 1 November 2000. This was needed to prevent any unintended amendments to the Corporations Act (brought about by changes to the Acts Interpretation Act) in recognition of the agreement between the States and the Commonwealth in relation to the Corporations Act.

The proposed amendment will insert a new section 5C in the Corporations Act to provide that the Acts Interpretation Act as amended by this Bill will apply to the Corporations Act as at the date of commencement of this Bill, but any later amendments to the Acts Interpretation Act will not apply.

Criminal Code Act 1995

Item 16

This item repeals paragraph 9.4(2)(c) of the Criminal Code and substitutes a new paragraph. Under the repealed provision, a person had a defence to a criminal charge if the offence was made or varied by subordinate legislation that was not publicly available. The new provisions recognise the 2003 Act and provide that the defence will only be available if, at the time of the conduct, the subordinate legislation has not been made available to the public (by means of being registered under the 2003 Act or otherwise) and has not otherwise been made available to persons likely to be affected by it in such a way that the person would have become aware of its contents by exercising due diligence. That is, ignorance of the law will not be an excuse in relation to subordinate legislation that is publicly available.

Customs Act 1901

Item 17

This item amends section 269SC of the Customs Act 1901 by adding a new subsection (8). Subsections 269SC(6) and 269SC(7) provide that tariff concession orders are to be revoked retrospectively in certain circumstances. New subsection 269SC(8) preserves the operation of these provisions, notwithstanding section 12 of the 2003 Act which provides against any retrospective commencement that has an adverse impact on a person's rights.

Item 18

This item amends section 269SD of the Customs Act 1901 by adding a new subsection (6). Section 269D provides for the revocation of tariff concession orders retrospectively in certain circumstances. New subsection 269SD(6) preserves the operation of these provisions, notwithstanding section 12 of the 2003 Act which provides against any retrospective commencement that has an adverse impact on a person's rights.

Income Tax Assessment Act 1936

Item 27

This item replaces subsection 109N(4) of the Income Tax Assessment Act 1936, which provides that Regulations made for the purposes of subsection (2) may apply, adopt or incorporate a rate published in an instrument after they are made or take effect, or a rate contained in an instrument from time to time, despite subsection 49A(1) of the Acts Interpretation Act; and paragraph 11(b) of the Legislative Instruments Act 1998 (which never commenced).

The proposed amendments will maintain the status quo by ensuring that the Regulations may continue to incorporate instruments from time to time despite provisions in any other Act.