House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

General outline and financial impact

GENERAL OUTLINE

1. This Bill makes amendments to various Acts, including the Legislation Act 2003 ('Legislation Act') and the Acts Interpretation Act 1901 ('Acts Interpretation Act'), to implement those recommendations of the Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003 ('Sunsetting Review Report') that require legislative action.

2. This Bill also makes other minor and technical amendments to the Legislation Act and the Acts Interpretation Act to clarify their operation and resolve inconsistencies between provisions.

3. The purpose of the sunsetting framework, as provided under section 49 of the Legislation Act, is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed. Its operation ensures that legislative instruments (subject to some exceptions) are reviewed at least every 10 years to determine whether they are fit-for-purpose and should be remade, or are redundant and can be repealed. Sunsetting is an important mechanism for reducing red tape, delivering clearer laws and aligning existing legislation with current government policy.

4. The Sunsetting Review Report was the outcome of a review undertaken in accordance with section 60 of the Legislation Act, which requires the Attorney-General to appoint persons to a body to review the operation of the sunsetting framework set out in Part 4 of Chapter 3 of that Act. In March 2017, the then Attorney-General appointed three senior Commonwealth officials to a Committee to conduct that review ('Committee').

5. The Committee found that the sunsetting framework is, in general, fulfilling its stated purpose, and recommended that the framework should not be extended to primary legislation and that the 10-year sunsetting period should be maintained. The Committee made 45 recommendations, which are set out in the Sunsetting Review Report, aimed at improving and streamlining the operation of the sunsetting framework and related provisions of the Legislation Act. The Sunsetting Review Report was tabled in the House of Representatives on 23 October 2017 and in the Senate on 13 November 2017.

6. In preparing the Sunsetting Review Report, the Committee consulted with and considered the views of a broad range of stakeholders. A Consultation Paper was made publicly available and the Committee invited both government and non-government stakeholders to provide submissions. In total, the Committee received 25 submissions to the Consultation Paper.

7. A number of stakeholders were also consulted in the development of this Bill. The Office of Parliamentary Counsel was consulted on all aspects of this Bill. The Department of the Prime Minister and Cabinet and the Clerks of the House of Representatives and of the Senate were consulted on the definition of 'sitting day' for the purposes of the disallowance provisions of the Legislation Act and provisions relating to parliamentary scrutiny including the First Parliamentary Counsel's rectification power. The Criminal Law Section and the Human Rights Unit of the Attorney-General's Department were also consulted on the Statement of Compatibility with Human Rights.

8. Schedule 1 makes amendments to various Acts to, primarily, implement the recommendations of the Sunsetting Review Report that can only be achieved by legislative change. These amendments:

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broaden the scope of the Attorney-General's discretion to issue certificates of deferral of sunsetting and declarations of alignment of sunsetting, and provide for greater parliamentary scrutiny of the exercise of these discretions

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remove the time restriction on Parliament's power to roll over the sunsetting date of a legislative instrument

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provide that rules of court are not subject to the sunsetting framework

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clarify that references to 'intergovernmental bodies or schemes' include those involving the Commonwealth and one or more Territories

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define the meaning of 'sitting day' as it applies to the disallowance provisions of the Legislation Act and in any other Act

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clarify the interaction between the disallowance, tabling and automatic repeal provisions of the Legislation Act, and

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makes minor amendments to a number of provisions to better reflect current drafting practice.

9. Schedule 2 makes minor and technical amendments to the Legislation Act and Acts Interpretation Act to clarify the operation of those Acts, resolve inconsistencies between provisions, and simplify language. In particular, these amendments clarify:

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that a legislative or notifiable instrument can commence before the instrument is registered despite any rule or principle of common law

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that a legislative or notifiable instrument may apply, adopt or incorporate a version of another instrument or writing that may not be the version that is actually in force when the legislative or notifiable instrument commences, but was in force at some time prior to that commencement

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the limits of the First Parliamentary Counsel's power to rectify an error on the Federal Register of Legislation and the application of the parliamentary scrutiny mechanisms to instruments that have been rectified under this power, and

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that, where an Act refers to a provision of another Act or State or Territory law, and that provision is repealed and re-enacted, a reference to the repealed provision extends to the re-enacted provision even if it is differently numbered.

FINANCIAL IMPACT

10. This Bill does not have a financial impact.

Statement of compatibility with human rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018

11. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

12. An overview of measures in the Bill and their human rights implications are below.

Overview of the Bill

13. Section 60 of the Legislation Act 2003 ('Legislation Act') requires the Attorney-General to appoint persons to a body to review the operation of the sunsetting framework set out in Part 4 of Chapter 3 of that Act. In March 2017, the then Attorney-General appointed three senior Commonwealth officials to a body ('Committee') to conduct that review. The final report of the Committee, Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003 ('Sunsetting Review Report'), was tabled in both Houses of Parliament in late 2017.

14. The purpose of the sunsetting framework, as provided under section 49 of the Legislation Act, is to ensure that legislative instruments are kept up to date and only remain in force for as long as they are needed. Its operation ensures that legislative instruments (subject to some exceptions) are reviewed approximately 10 years after registration to determine whether they are fit-for-purpose and should be remade, or have become redundant and can be repealed.

15. Schedule 1 primarily implements the recommendations of the Sunsetting Review Report that can only be achieved by legislative amendment. In particular, Schedule 1:

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broadens the scope of the Attorney-General's discretion to issue certificates of deferral of sunsetting and declarations of alignment of sunsetting, and provides for greater parliamentary scrutiny of the exercise of these discretions

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provides that rules of court are not subject to the sunsetting framework

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removes the time restriction on Parliament's power to roll over the sunsetting date of a legislative instrument

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clarifies that references to 'intergovernmental bodies or schemes' include those involving the Commonwealth and one or more Territories

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defines the meaning of 'sitting day' as it applies to the disallowance provisions of the Legislation Act and in any other Act

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clarifies the interaction between the disallowance, tabling and automatic repeal provisions of the Legislation Act, and

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makes minor amendments to a number of provisions to better reflect current drafting practice.

16. Schedule 2 makes amendments to the Legislation Act and Acts Interpretation Act 1901 ('Acts Interpretation Act') that clarify the operation of those Acts, resolve inconsistencies between provisions, and simplify language. In particular, Schedule 2 clarifies:

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that a legislative or notifiable instrument can commence before the instrument is registered, despite any rule or principle of common law

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that a legislative or notifiable instrument may apply, adopt or incorporate a version of another instrument or writing that may not be the version that is actually in force when the legislative or notifiable instrument commences, but was in force at some time prior to that commencement

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the limits of the First Parliamentary Counsel's power to rectify an error on the Federal Register of Legislation and the application of the parliamentary scrutiny mechanisms to instruments that have been rectified under this power, and

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that, where an Act refers to a provision of another Act or State or Territory law, and that provision is repealed and re-enacted, a reference to the repealed provision extends to the re-enacted provision even if it is differently numbered.

Human rights implications

Prohibition on retrospective criminal laws

17. Article 15 of the International Convention on Civil and Political Rights creates a prohibition on retrospective criminal laws. This right provides that laws must not impose liability for acts that were not criminal offences at the time they were committed. This flows from the principle that the criminal law should be sufficiently precise to enable persons to know in advance whether their conduct would be criminal.

18. The Legislation Act is an Act of general application that applies to subordinate legislation including legislative instruments and notifiable instruments.

New subsection 12(1A) - Retrospective commencement and application of legislative instruments and notifiable instrument

19. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers ('Guide') generally discourages authorising subordinate legislation to impose criminal offences. Further, the Guide recommends that, where there is a demonstrated need to delegate offence content to subordinate legislation, it should be delegated to regulations (rather than other kinds of subordinate instruments) and accompanied by appropriate safeguards. Regulations that contain offences should not be authorised to impose fines exceeding 50 penalty units for an individual and 250 penalty units for a body corporate.

20. New subsection 12(1A) of the Legislation Act, as inserted by item 5 of Schedule 2, clarifies that a legislative instrument or notifiable instrument may provide that the instrument or a provision of the instrument can commence retrospectively, despite any principle or rule of common law. This is a provision of general application that would include legislative instruments containing offence provisions. However, while the operation of new subsection 12(1A) opens up the possibility that an instrument that prescribes a Commonwealth criminal offence may commence retrospectively, there are safeguards in place to prevent this from occurring.

21. Subsection 12(2) of the Legislation Act acts as a safeguard on the operation of new subsection 12(1A) by displacing the retrospective commencement of a legislative instrument or notifiable instrument to the extent that the retrospective operation would negatively affect the rights of, or impose liabilities on, a person other than the Commonwealth. This prevents an instrument from retrospectively imposing a criminal sanction on an act that was not a criminal offence at the time it was committed.

22. Item 6 of Schedule 2 makes minor amendments to subsection 12(2) that are consequential to the insertion of new subsection 12(1A) and do not change its substance.

23. Subsection 12(4) of the Legislation Act provides that the prohibition on retrospective laws prescribed by subsection 12(2) can only be overridden by express provision in an Act. As a consequence, any Act that purports to allow retrospective criminal laws by displacing subsection 12(2) will be subject to parliamentary oversight and scrutiny. The human rights impact of those Acts will be individually assessed, including through the requirement to prepare Statements of Compatibility with Human Rights. Any subordinate legislation made under those Acts that impose retrospective criminal sanctions will also be subject to parliamentary scrutiny through the disallowance process.

24. Items 7 and 8 of Schedule 2 make minor amendments to subsection 12(4) that are consequential to the insertion of new subsection 12(1A) and do not change its substance.

New sections 15D and 15DA - Rectification of the Federal Register of Legislation

25. New section 15D of the Legislation Act provides that if the First Parliamentary Counsel becomes aware that the Register contains certain kinds of errors, the First Parliamentary Counsel must arrange for the Register to be altered to rectify the error as soon as possible.

26. The kinds of errors covered by that section are the following:

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the text of an Act as it appears in the Register is not the same as the text of the Act as assented to

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the text of a legislative instrument or notifiable instrument as it appears in the Register is not the same as the text of the instrument as made by the rule-maker

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a compilation as it appears in the Register does not represent the state of the law that it purports to represent, or

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the text of any other document on the Register as it appears in the Register is not the same as the text of the original document.

27. One result of section 15D is to allow an error on the Register to be rectified where the text of the instrument lodged for registration on the Register is not the same text as made by the rule-maker, without requiring the rule-maker to repeal and remake the instrument.

28. Legislative instruments are required by section 38 of the Legislation Act to be tabled in each House of the Parliament within six sitting days of registration. The instrument can then be disallowed under section 42 of the Legislation Act if a notice of motion to disallow is moved within 15 sitting days of tabling, and that motion is passed within 15 sitting days of the giving of the notice.

29. Where the First Parliamentary Counsel exercises the rectification power under new section 15D in relation to a legislative instrument that was previously registered (the 'originally tabled version'), it is replaced by another version (the 'correct version'). In relation to disallowable legislative instruments, new section 15DA requires that, if the originally tabled version had been laid before either House of the Parliament, then the correct version must be tabled again in each House of the Parliament and is subject to a new period of disallowance that commences on the day it is tabled (unless the originally tabled version had already been disallowed in full). The requirement for a new disallowance period does not otherwise affect the time at which the instrument is registered.

30. As such, if the commencement of the instrument is expressed to commence on the day after registration, the correct version is taken to have commenced on the day after the registration of the originally tabled version (see note to subsection 15D(4)), even if the correct version was tabled at a time after that day. It is therefore possible that new section 15D could operate to allow an instrument that includes a Commonwealth criminal offence to commence retrospectively if, as a result of administrative error, the offence provisions were omitted from the originally tabled version.

31. New subsection 15D(3) acts as a safeguard on the operation of section 15D by providing that any rectification made in the exercise of this power does not affect any right or privilege that was acquired or accrued, nor impose or increase any obligation or liability that was incurred, in reliance on the originally tabled version.

32. New subsection 15D(3) is therefore consistent with the prohibition on retrospective criminal laws by ensuring that, if an administrative error resulted in the omission of an offence provision from the originally tabled version that was later tabled in Parliament in the correct version, a person would not be subject to criminal sanctions for doing an act that would have otherwise triggered that provision in the period between the registration of the originally tabled version and the tabling of the correct version. This ensures that legislative instruments do not, as a result of administrative error, impose liability for acts that were not criminal offences at the time they were committed.

Conclusion

33. This Bill is compatible with the human rights and freedoms listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 by promoting the prohibition on retrospective criminal laws, and ensuring that any proposal to retrospectively impose a criminal liability will be subject to parliamentary oversight and scrutiny.

Notes on clauses

Preliminary

Clause 1 - Short title

34. This clause provides for the short title of the Act to be the Legislation Amendment (Sunsetting Review and Other Measures) Act 2018.

Clause 2 - Commencement

35. This clause provides for the commencement of each provision in the Act, as set out in the table.

36. Item 1 in the table provides that sections 1 to 3, which concern the formal aspects of the Act, as well as anything in the Act not elsewhere covered by the table, will commence on the day on which the Act receives Royal Assent.

37. Item 2 in the table provides that Schedule 1 will commence on the day after the Act receives Royal Assent.

38. Item 3 in the table provides that Division 1 of Part 1 of Schedule 2 will commence on the day after the Act receives Royal Assent.

39. Item 4 in the table provides that Division 2 of Part 1 of Schedule 2 will commence on a single day to be fixed by Proclamation, or on the day after the end of 6 months beginning on the day the Act receives Royal Assent, whichever occurs earlier. This is to allow sufficient time for administrative and system changes to be made before the amendments take effect.

40. Item 5 in the table provides that Part 2 of Schedule 2 will commence on the day after the Act receives Royal Assent.

41. Item 6 in the table provides that Part 3 of Schedule 2 will commence on the day after the Act receives Royal Assent, unless Schedule 1 to the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (the Espionage and Foreign Interference Act) commences on or before that time. This is because item 4 of Schedule 1 to the Espionage and Foreign Interference Act repeals the provision of the Criminal Code Act 1995 amended by Part 3 of Schedule 2.

Clause 3 - Schedules

42. Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule and any other item in a Schedule has effect according to its terms. This is a technical provision to give operational effect to the amendments contained in the Schedules.

Schedule 1 - Sunsetting review

Acts Interpretation Act 1901

Item 1 - Section 2B

43. Section 2B of the Acts Interpretation Act sets out definitions that are relevant to the operation of the Acts Interpretation Act. This item inserts a new definition of 'sitting day' into section 2B, which will be defined by reference to new section 2M (inserted by item 2 of Schedule 1).

Item 2 - Definition of 'sitting day

44. This item inserts new section 2M into the Acts Interpretation Act to provide a definition of 'sitting day'. This reflects recommendation 45 of the Sunsetting Review Report.

45. New subsection 2M(1) provides that a sitting day, in relation to a House of the Parliament, is a day on which that House actually sits.

46. New subsection 2M(2) provides that, if a House sits without adjourning on a previous day, the period during which the House continues to sit, with or without a suspension, on a later day is taken to be part of that previous day. This includes adjournments in the normal course of the business of each House.

47. In addition to the examples set out under subsection 2M(2), further examples of how new section 2M would operate in practice are set out below.

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The Senate begins sitting at 9 am on Thursday and extends (with or without a suspension of the sitting) until it is adjourned at 3 pm on Saturday. The period from 9 am Thursday to 3 pm Saturday is a single sitting day for the Senate.

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The House of Representatives begins sitting at 9 am on Wednesday and extends (with or without a suspension of the sitting) until it is adjourned at 1 am on Thursday. The House of Representatives then starts sitting again at 10 am on Thursday and adjourns at 3 pm on Thursday. The period from 9 am Wednesday to 1 am Thursday is a single sitting day for the House of Representatives. The period from 10 am Thursday until 3 pm Thursday is a separate sitting day for the House of Representatives.

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The House of Representatives begins sitting at 9 am on Thursday and is adjourned at 1 pm the same day. The House of Representatives then starts sitting again at 3 pm on same day and adjourns again at 6 pm that day. The period from 9 am Thursday to 6 pm Thursday is a single sitting day for the House of Representatives.

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The Senate begins sitting at 9 am on Wednesday and extends (with or without a suspension of the sitting) until it is adjourned at 1 am on Thursday. The Senate then starts sitting again at 10 am on Thursday and adjourns at 1 am on Friday. The period from 9 am Wednesday to 1 am Thursday is a single sitting day for the Senate. The period from 10 am on Thursday until 1 am on Friday is a separate sitting day for the Senate.

48. New subsection 2M(3) provides that for the purposes of this section, a House is taken to have adjourned if the Parliament is prorogued, that House is dissolved, or that House (if it is the House of Representatives) expires. The purpose of new subsection 2M(3) is to clarify the circumstances in which a House is also taken to have adjourned, in addition to the ordinary concept of adjournment.

Item 3 - Subparagraph 46AA(1)(a)(ii)

49. This item omits the word 'or' from subparagraph 46AA(1)(a)(ii) of the Acts Interpretation Act to reflect the insertion of new subparagraph 46AA(1)(a)(iii) by item 4 of Schedule 1.

Item 4 - At the end of paragraph 46AA(1)(a)

50. Section 46AA of the Acts Interpretation Act provides for an instrument, other than a legislative instrument, a notifiable instrument or a rule of court, to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. This section also allows instruments to apply, adopt or incorporate any matter contained in any other material in the form that exists at the time the instrument commences.

51. Section 46AA ensures that only legislation that has been scrutinised by the Parliament can be incorporated in a form that may vary from time to time. Since the Federal Register of Legislation provides an authoritative source of all Acts and legislative instruments, section 46AA is also consistent with the general principle of access to justice that materials incorporated by reference in legislation should be freely accessible to the public.

52. This item inserts new subparagraph 46AA(1)(a)(iii) to clarify that an instrument may apply, adopt or incorporate the provisions of rules of court as in force at a particular time or as in force from time to time.

53. This amendment is consequential to the amendments made by items 6 to 21 of Schedule 1, which provide that rules of court (which are not legislative instruments) are exempt from the sunsetting framework in Part 4 of Chapter 3 of the Legislation Act but remain subject to the other requirements of that Act, including registration, publication and disallowance. This amendment ensures that section 46AA applies to rules of court in the same way as any other disallowable legislative instrument by allowing instruments to incorporate provisions of rules of court in the same way as provisions of a disallowable legislative instrument.

54. The amendment made by this item is consistent with amendments made to section 14 of the Legislation Act by items 23 and 24 of Schedule 1 that deal with incorporation of material in legislative instruments and notifiable instruments.

Item 5 - Application provision

55. This item contains an application provision for item 4 of Schedule 1, with the effect that the amendment to section 46AA of the Acts Interpretation Act applies to instruments made on or after the commencement of this item (even if the enabling provision for the instrument exists at commencement). This ensures the amendment does not apply retrospectively.

Items 6 to 21 - Amendments to the Family Law Act 1975 , the Federal Circuit Court of Australia Act 1999 , the Federal Court of Australia Act 1976 and the Judiciary Act 1903

56. Recommendations 34 and 35 of the Sunsetting Review Report are that rules of court should not be subject to sunsetting, but should be subject to the registration and publication requirements of the Legislation Act.

57. Paragraph 8(8)(d) of the Legislation Act provides that rules of court are not legislative instruments. As such, the default position is that rules of court are not subject to any of the provisions of the Legislation Act.

58. However, certain provisions of the enabling legislation of each federal court (together, the Federal Court Acts) provide that the Legislation Act - other than section 8 (which defines 'legislative instrument'), section 9 (which provides that no inference of legislative character can be drawn from whether an instrument is a legislative instrument), section 10 (which declares certain classes of instruments to be legislative instruments), and section 16 (which requires the First Parliamentary Counsel to cause steps to be taken to promote high drafting standards) - applies to rules made by the federal courts as if they were legislative instruments. These provisions are:

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subsection 86(2) of the Judiciary Act 1903 ('Judiciary Act'), for rules made by the High Court of Australia

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subsection 59(4) of the Federal Court of Australia Act 1976 ('FCA Act'), for rules made by the Federal Court of Australia

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section 26E and subsections 37A(14) and 123(2) of the Family Law Act 1975 ('Family Law Act'), for rules made by the Family Court of Australia, and

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subsection 81(3) of the Federal Circuit Court of Australia Act 1999 ('FCCA Act'), for rules made by the Federal Circuit Court of Australia.

59. As such, despite paragraph 8(8)(d) of the Legislation Act, rules made by each of the federal courts are subject to the provisions of the Legislation Act, including the sunsetting framework.

60. Items 6 to 21 of Schedule 1 amend the aforementioned provisions of the Federal Court Acts to ensure that rules made by each of the federal courts are not subject to the sunsetting framework set out in Part 4 of Chapter 3 of the Legislation Act, but continue to be subject to the remaining aspects of the Legislation Act, including the registration and publication requirements in Chapter 2. This reflects recommendations 34 and 35 of the Sunsetting Review Report.

61. The purpose of the sunsetting framework, as set out in section 49 of the Legislation Act, is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed. Rules of court already undergo constant and detailed scrutiny and review by subject area experts, frequently with the benefit of argument by external subject area experts. Decisions about the operation of those rules in individual circumstances are often published publicly and are sometimes subject to judicial review or appeal. As such, it would not be inappropriate to exempt rules of court from the operation of the sunsetting framework, as there are already numerous mechanisms in place to ensure that they remain fit-for-purpose, relevant and required.

62. It is appropriate that rules of court remain subject to the registration and publication requirements of the Legislation Act. This means that rules of court, their accompanying explanatory statements, and any compilations of the rules will continue to be registered and published on the Federal Register of Legislation. This promotes access to justice by ensuring that an authoritative record of rules of court will continue to be freely accessible to the public from a central repository.

63. Details about each of items 6 to 21 of Schedule 1 are set out in the following paragraphs. Family Law Act 1975

Item 6 - Section 26E

64. Section 26E of the Family Law Act provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made under sections 26B and 26C of the Family Law Act.

65. This item amends section 26E to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made under sections 26B and 26C.

Item 7 - Paragraph 26E(a)

66. This item amends paragraph 26E(a) of the Family Law Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made under sections 26B and 26C, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

67. Subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act provide for legislative and notifiable instruments to make provision in relation to a matter by applying, adopting or incorporating the provisions of a disallowable legislative instrument at a particular time or as in force from time to time.

68. The effect of this item is to clarify that a rule of court made under sections 26B and 26C can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time. As legislative instruments are required to be registered and published on the Federal Register of Legislation, this item is consistent with the general principle that materials incorporated by reference should be freely accessible to the public.

Item 8 - Subsection 37A(14)

69. Section 37A of the Family Law Act provides for the Judges to make rules of court delegating to the Registrars all or any of the powers of the Court. Subsection 37A(14) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made under section 37A.

70. This item amends subsection 37A(14) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made under section 37A.

Item 9 - Paragraph 37A(14)(a)

71. This item amends paragraph 37A(14)(a) of the Family Law Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made under section 37A, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

72. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made under section 37A can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 10 - Subsection 123(2)

73. Section 123 of the Family Law Act provides for the Judges to make rules of court relating to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under the Family Law Act. Subsection 123(2) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under section 123 or any other Act.

74. This item amends subsection 123(2) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court.

Item 11 - Paragraph 123(2)(a)

75. This item amends paragraph 123(2)(a) of the Family Law Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made under section 123, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

76. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 12 - Application provision

77. This item contains an application provision for items 6 to 11 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report.

Federal Circuit Court of Australia Act 1999

Item 13 - Subsection 81(3)

78. Section 81 of the FCCA Act provides for the Judges to make rules of court relating to the practice and procedure to be followed in the Court, and prescribing any other matters required or permitted to be prescribed. Subsection 81(3) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under the FCCA Act or another Act.

79. This item amends subsection 81(3) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court under the FCCA Act or another Act.

Item 14 - Paragraph 81(3)(a)

80. This item amends paragraph 81(3)(a) of the FCCA Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made by the Court, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

81. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 15 - Application provision

82. This item contains an application provision for items 13 and 14 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report.

Federal Court of Australia Act 1976

Item 16 - Subsection 59(4)

83. Section 59 of the FCA Act provides for the Judges to make rules of court relating to the practice and procedure to be followed in the Court, and any other matter necessary or convenient to be prescribed for the conduct of any business of the Court. Subsection 59(4) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under the FCA Act or another Act.

84. This item amends subsection 59(4) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court under the FCA Act or another Act.

Item 17 - Paragraph 59(4)(a)

85. This item amends paragraph 59(4)(a) of the FCA Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made by the Court, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

86. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 18 - Application provision

87. This item contains an application provision for items 16 and 17 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report.

Judiciary Act 1903

Item 19 - Subsection 86(2)

88. Section 86 of the Judiciary Act provides for the Justices to make rules of court necessary or convenient to be made for carrying into effect the provisions of the Judiciary Act or so much of the provisions of any other Act as confers jurisdiction on the High Court, or that relate to the practice or procedure of the High Court. Subsection 86(2) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under the Judiciary Act or another Act.

89. This item amends subsection 86(2) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court under the Judiciary Act or another Act.

Item 20 - Paragraph 86(2)(a)

90. This item amends paragraph 86(2)(a) of the Judiciary Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made by the Court, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

91. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 21 - Application provision

92. This item contains an application provision for items 19 and 20 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report. Legislation Act 2003

Item 22 - Section 3A

93. Section 3A of the Legislation Act sets out a simplified outline of the key elements of the Legislation Act.

94. This item amends section 3A by omitting the phrase 'after their commencement'. This reflects the amendments made to the automatic repeal provisions in Division 1 of Part 3 of Chapter 3 by items 42 to 60 of Schedule 1.

Item 23 - Subparagraph 14(1)(a)(ii)

95. This item omits the word 'or' from subparagraph 14(1)(a)(ii) of the Legislation Act to reflect the insertion of new subparagraph 14(1)(a)(iii) by item 24 of Schedule 1.

Item 24 - At the end of paragraph 14(1)(a)

96. Section 14 of the Legislation Act provides for a legislative instrument or a notifiable instrument to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. This section also allows instruments to apply, adopt or incorporate any matter contained in any other material in the form that exists at the time the instrument commences.

97. Section 14 ensures that only legislation that has been scrutinised by Parliament can be incorporated in a form that may vary from time to time. Since the Federal Register of Legislation provides an authoritative source of all Acts and legislative instruments, section 14 is also consistent with the general principle of access to justice that materials incorporated by reference in legislation should be freely accessible to the public.

98. This item inserts new paragraph 14(1)(a)(iii) to clarify that a legislative or notifiable instrument may apply, adopt or incorporate the provisions of rules of court as in force at a particular time or as in force from time to time.

99. This item is intended to remove any doubt that section 14 applies to rules of court in the same way as it does to any other disallowable legislative instrument by explicitly providing that legislative and notifiable instruments can apply, adopt or incorporate a rule of court or a provision of a rule of court as in force at a particular time or from time to time. This is consequential to the amendments made by items 6 to 21 of Schedule 1, which provide that rules of court are exempt from the sunsetting framework in Part 4 of Chapter 3 of the Legislation Act but remain subject to the other requirements of that Act, including registration, publication and disallowance.

100. The amendment made by this item is consistent with amendments made to section 46AA(1)(b) of the Acts Interpretation Act by items 3 and 4 of Schedule 1 to this Bill that deal with incorporation of material in instruments that are not legislative instruments nor notifiable instruments.

Item 25 - Subsection 38(3)

101. Subsection 38(3) of the Legislation Act provides that a legislative instrument ceases to have effect if it is not laid before each House of the Parliament within six sitting days of registration. This item amends subsection 38(3) by replacing the phrase 'ceases to have effect' with 'is repealed'.

102. This amendment is intended to clarify that legislative instruments that have not been laid before Parliament in accordance with section 38 are removed from the statute book, rather than simply ceasing to have effect. This use of language is consistent with current drafting practice.

Item 26 - Subsection 38(3) (note)

103. This item repeals the Note under subsection 38(3) of the Legislation Act as a consequence of the repeal of subsection 45(1) by item 36 of Schedule 1.

Items 27 to 33 - Amendments to section 4

104. Section 42 of the Legislation Act provides for parliamentary scrutiny of legislative instruments by setting out the process by which a legislative instrument (or a provision thereof) is disallowed or deemed to have been disallowed. Specifically, subsections 42(1) and (2) provide that a legislative instrument is disallowed if:

•

a notice of a motion to disallow is moved within 15 sitting days of a House of the Parliament after the instrument was laid before that House, and

•

either:

•

the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision, within 15 sitting days of the giving of that notice, or

•

the notice of motion is not withdrawn or otherwise dealt with at the end of 15 sitting days after it is given.

105. Subsection 42(3) deals with circumstances in which a notice of motion to disallow has been given in a House of the Parliament before the end of the 15 sitting day period, but the House of Representatives is dissolved or expires, or the Parliament is prorogued, before that notice of motion can be dealt with.

106. Items 27, 30 and 33 amend paragraphs 42(1)(a), (2)(b), (2)(a), (2)(b), (3)(a) and (3)(b) to insert the phrase 'beginning on the first sitting day' after each reference to '15 sitting days of that House'. The purpose of these amendments is to put beyond doubt when a 15 sitting day period commences after an instrument is laid before a House of the Parliament. These amendments are consistent with the current practice of the Parliament and the Executive in relation to the calculation of a period of sitting days.

107. Item 28 amends subsection 42(1) to replace the phrase 'then ceases to have effect' with 'is repealed immediately after the passing of that resolution'. This clarifies that a legislative instrument that is disallowed under subsection 42(1) is removed from the statute book immediately at the time the resolution is passed, rather than simply ceasing to have effect. This use of language is consistent with current drafting practice.

108. Item 31 amends subsection 42(2) to replace the phrase 'ceases at that time to have effect' with 'is repealed at that time'. This clarifies that a legislative instrument that is deemed to have been disallowed in accordance with subsection 42(2) is removed from the statute book, rather than simply ceasing to have effect. This use of language is consistent with current drafting practice.

109. Items 29 and 32 repeal the Notes under subsection 42(1) and (2) as a consequence of the repeal of subsection 45(1) by item 36 of Schedule 1.

Item 34 - Paragraph 44(1)(a)

110. Subsection 44(1) of the Legislation Act provides that a legislative instrument is not subject to disallowance if the enabling legislation for the instrument (other than the Corporations Act 2001):

•

facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States; and

•

authorises the instrument to be made by the body or for the purposes of the body or scheme.

111. Subsection 44(1) was inserted into the then-Legislative Instruments Act 2003 in recognition of the argument that the Commonwealth Parliament should not be able to unilaterally disallow instruments that have been made for the purposes of a multi-jurisdictional body or scheme and would therefore affect jurisdictions other than the Commonwealth.

112. This item inserts the phrase 'or Territories' into paragraph 44(1)(a) to clarify that subsection 44(1) also applies in relation to intergovernmental bodies or schemes involving the Commonwealth and one or more States or Territories. This reflects recommendation 36 of the Sunsetting Review Report.

113. Subsection 54(1) is set out in similar terms, and item 71 of this Schedule makes corresponding amendments to that provision.

Items 35 to 38 - Amendments to section 45

114. Section 45 of the Legislation Act provides that, where a legislative instrument ('repealing instrument') or provision of a legislative instrument ('repealing provision') wholly or partly repeals another legislative instrument or law ('affected instrument'), but the repealing instrument or repealing provision has itself ceased because of the operation of subsection 38(3) (where the instrument has not been laid before the Parliament as required) or subsections 42(1) or (2) (where the instrument has been disallowed), then the affected instrument or provision revives from the time of cessation.

115. Item 35 replaces the existing heading to section 45 of the Legislation Act with the new heading 'Reviving a legislative instrument, law or provision'. This amendment clarifies the operation of section 45 and is consequential to the amendments made by items 36 to 38 of Schedule 1.

116. Item 36 repeals subsection 45(1), as its effect is already covered by subsection 45(2) (as amended by items 37 and 38 of Schedule 1).

117. Item 37 replaces current paragraph 45(2)(a) with a new paragraph 45(2)(a) to clarify that the effect of the operation of subsections 38(2), 42(1) and 42(2) is that the repealing instrument or repealing provision is repealed and therefore removed from the statute book, rather than merely ceasing to have effect.

118. In addition, the current reference to sections 48A and 48C in subparagraph 45(2)(a)(ii) does not exist in new paragraph 45(2)(a). This is consequential to the amendments of section 48A and 48C by items 42 to 54 of Schedule 1, which will mean that it is generally not possible for a repealing instrument or repealing provision to have already been repealed by sections 48A or 48C before it can be repealed by the operation of subsections 38(3), 42(1) or 42(2).

119. Item 38 amends subsection 45(2) to replace the phrase 'the repealed instrument, law or provision revived from the cessation time' with 'the instrument, law or provision repealed by the repealing instrument or repealing provision revives from the repeal time'. Similarly to item 37, this is intended to clarify that subsections 38(2), 42(1) and 42(2) operate to repeal an instrument or provision and therefore remove it from the statute book.

120. The amendments made by items 36, 37 and 38 are clarifying in nature only and do not change the substantive effect of section 45.

Items 39 and 40 - Section 4

121. Section 47 of the Legislation Act provides that if a notice of motion to disallow an instrument (or a provision thereof) has been given in a House of the Parliament within 15 sitting days after that instrument has been laid before that House, an instrument or provision that is the same in substance must not be remade unless certain conditions are met.

122. These items amend subsection 47(1) and paragraph 47(2)(b) to clarify that the 15 sitting day period commences on the first sitting day of a House after the instrument is laid before that House. As with the amendments made by items 27, 30 and 33 of Schedule 1, the purpose of these amendments is to put beyond doubt when a 15 sitting day period commences after an instrument is laid before a House of the Parliament. These amendments are consistent with the current practice of the Parliament and the Executive in relation to the calculation of a period of sitting days.

Item 41 - Section 48A

123. Section 48AA of the Legislation Act sets out a simplified outline of Part 3 of Chapter 3 of the Legislation Act.

124. This item amends section 48AA by omitting the phrase 'after it has achieved this effect'. This reflects the amendments made to the automatic repeal provisions in Division 1 of Part 3 of Chapter 3 by items 42 to 60 of Schedule 1.

Items 42 to 60 - Amendments to sections 48A, 48C, 48

125. Sections 48A, 48C and 48D of Division 1 of Part 3 of Chapter 3 of the Legislation Act ('the automatic repeal provisions') provide that the following instruments are automatically repealed once the instrument has commenced, the capacity for any further provisions to take effect has been exhausted, or the instrument is registered, whichever occurs later:

•

a legislative or notifiable instrument ('amending or repealing instrument') whose only legal effect is to amend or repeal another legislative or notifiable instrument (section 48A)

•

a legislative or notifiable instrument that contains a provision ('amending or repealing provision') whose only legal effect is to amend or repeal another legislative or notifiable instrument, or to amend the instrument containing the provision (section 48C), and

•

a legislative or notifiable instrument, other than a commencement instrument, that contains a provision ('commencement provision') whose only legal effect is to provide for the commencement of an instrument or an Act (section 48D).

126. The operation of the automatic repeal provisions does not prevent the amending and repealing instrument, or the instrument containing the amending and repealing provision or commencement provision, from being subject to disallowance. As a consequence, these instruments are often automatically repealed before the disallowance period for that instrument has concluded.

127. The Sunsetting Review Report considered that this interaction between the automatic repeal provisions and the disallowance mechanism creates unnecessary confusion when members or senators are considering possible disallowance of such an instrument, as it may seem counter-intuitive that an automatically repealed instrument can still be disallowed.

128. The amendments made by items 42 to 60 of Schedule 1 reflect recommendation 44 of the Sunsetting Review Report that Division 1 of Part 3 of Chapter 3 be amended to provide that a disallowable legislative instrument is automatically repealed at either the end of the disallowance period for that instrument, when the instrument has fully taken effect, or when the capacity for any further provisions to commence has been exhausted, whichever occurs later.

129. These amendments do not affect the ability of another Act to expressly override the Legislation Act by providing for a shorter or longer disallowance period for instruments made under that Act. Should an enabling Act prescribe a shorter or longer disallowance period than that prescribed under section 42 of the Legislation Act, then any instruments falling under sections 48A, 48C or 48D would be automatically repealed at the end of the shorter or longer disallowance period.

130. Details about each of these items are set out in the following paragraphs.

131. Item 42 amends subsection 48A(1) to replace 'This' with 'Subject to subsection (2), this'. This clarifies that the operation of section 48A is subject to subsection 48A(2), as amended by items 43 to 46 of Schedule 1.

132. Item 43 amends subsection 48A(2) to provide that an amending or repealing instrument is automatically repealed in accordance with that subsection unless it is repealed earlier by subsection 38(3) (if the instrument has not been laid before the Parliament as required) or subsection 42(1) or (2) (if the instrument has been disallowed).

133. Item 44 inserts new paragraph 48A(2)(aa) to provide that an amending or repealing instrument that is a disallowable legislative instrument is automatically repealed at either the end of the disallowance period for that instrument, when the instrument has fully commenced, or when the capacity for any further provisions to commence has been exhausted, whichever occurs later.

134. Item 45 amends paragraph 48A(2)(a) to provide that the time of the automatic repeal, as set out in paragraph 48A(2)(a), applies to any legislative or notifiable instrument.

135. Item 46 amends paragraph 48A(2)(b) to provide that an amending or repealing instrument that is a legislative instrument that is exempt from disallowance, or is a notifiable instrument, is automatically repealed when the instrument has fully commenced, the capacity for any further provisions to commence has been exhausted, or the instrument is registered, whichever occurs later.

136. Item 47 repeals subsection 48A(4), as it is made redundant by subsection 48A(2) as amended by item 43 of Schedule 1.

137. Item 48 amends subsection 48C(1) to replace 'This' with 'Subject to subsection (2), this'. This clarifies that the operation of section 48C is subject to subsection 48C(2), as amended by items 49 to 53 of Schedule 1.

138. Item 49 amends subsection 48C(2) to provide that an amending or repealing provision is automatically repealed in accordance with that subsection unless it is repealed earlier by subsection 38(3) (if the instrument containing the amending or repealing provision has not been laid before the Parliament as required) or subsection 42(1) or (2) (if the instrument has been disallowed).

139. Item 50 inserts new paragraph 48C(2)(aa) to provide that an amending or repealing provision is automatically repealed at either the end of the disallowance period for the amending or repealing provision or the disallowable legislative instrument containing the provision, or when the amending or repealing provision has commenced or can no longer commence, whichever occurs later.

140. Item 51 amends paragraph 48C(2)(a) to provide that the time of the automatic repeal, as set out in paragraph 48C(2)(a), applies to any amending or repealing provision that is in a legislative or notifiable instrument.

141. Item 52 amends paragraph 48C(2)(b) to provide that an amending or repealing provision contained in a legislative instrument that is exempt from disallowance, or in a notifiable instrument, is automatically repealed when the amending or repealing provision has commenced or can no longer commence, or when the instrument is registered, whichever occurs later.

142. Item 53 amends paragraph 48C(2)(b) to omit the phrase 'containing the provision', which becomes redundant as a consequence of the amendment made by item 52 of Schedule 1.

143. Item 54 repeals subsection 48C(4), as it is made redundant by subsection 48C(2) as amended by item 49 of Schedule 1.

144. Item 55 amends subsection 48D(1) to replace 'This' with 'Subject to subsection (2), this'. This clarifies that the operation of section 48D is subject to subsection 48D(2), as amended by items 56 to 60 of Schedule 1.

145. Item 56 amends subsection 48D(2) to provide that a commencement provision is automatically repealed in accordance with that subsection unless it is repealed earlier by subsection 38(3) (if the instrument containing the commencement provision has not been laid before the Parliament as required) or subsections 42(1) or (2) (if the instrument has been disallowed).

146. Item 57 inserts new paragraph 48D(2)(aa) to provide that a commencement provision contained in a disallowable legislative instrument is automatically repealed at either the end of the disallowance period for that instrument, or when the commencement provision has taken effect or can no longer take effect, whichever occurs later.

147. Item 58 amends paragraph 48D(2)(a) to provide that time of the automatic repeal, as set out in paragraph 48C(2)(a), applies to any commencement provision that is in a legislative or notifiable instrument.

148. Item 59 amends paragraph 48D(2)(b) to provide that a commencement provision contained in a legislative instrument that is exempt from disallowance, or in a notifiable instrument, is automatically repealed when the commencement provision has taken effect or can no longer take effect, or when the instrument is registered, whichever occurs later.

149. Item 60 amends paragraph 48D(2)(b) to omit the phrase 'containing the commencement provision', which becomes redundant as a consequence of the amendment made by item 59 of Schedule 1.

Items 61 and 63 - Amendments to subsection 51(1

150. Subsection 51(1) of the Legislation Act provides that the Attorney-General may issue a certificate deferring the sunsetting day of a legislative instrument ('certificate of deferral') if she or he is satisfied, on written application by the rule-maker, that:

•

the instrument is likely to cease to be in force within 12 months after the sunsetting day (subparagraph 51(1)(b)(i))

•

an instrument proposed to be made in substitution for the instrument will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen and avoided (subparagraph 51(1)(b)(ii)), or

•

the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed (subparagraph 51(1)(b)(ii)).

151. Paragraph 51(1)(c) provides that the sunsetting day of a legislative instrument may be deferred to a day that is six or 12 months after its original sunsetting day. Item 63 repeals and replaces paragraph 51(1)(c) to provide that the Attorney-General may defer the sunsetting day of a legislative instrument to a day that is six, 12, 18 or 24 months after its original sunsetting day. This item reflects recommendation 10 of the Sunsetting Review Report.

152. Item 61 amends the criterion in subparagraph 51(1)(b)(i) to require the Attorney-General to be satisfied, on application by a rule-maker, that an instrument is likely to cease to be in force within 24 months, rather than 12 months, after its original sunsetting day. This is consequential to the amendment made by item 63. It contemplates that the Attorney-General may be satisfied that the instrument is likely to cease to be in force within six, 12, 18 or 24 months after its original sunsetting day, and to determine the most appropriate period of deferral based on that satisfaction.

153. These amendments confer upon the Attorney-General the discretion to grant a longer deferral in circumstances where delaying the original sunsetting day by 12 months may be insufficient. This often occurs where the remaking of a legislative instrument is contingent upon proposed legislation that is being considered by Parliament or that is intended to be introduced into Parliament within 24 months. In those circumstances, a deferral would avoid the need to remake the instrument in substantially the same form for the short period before it ceases to have effect, or is repealed and replaced, as a consequence of the commencement of new legislation.

Item 62 - At the end of paragraph 51(1)(b)

154. This item inserts new subparagraph 51(1)(b)(iii) in the Legislation Act to provide that the Attorney-General may also defer the sunsetting day of a legislative instrument on the basis that she or he has given approval to exempt that instrument from the sunsetting framework in Part 4 of Chapter 3. This reflects recommendation 13 of the Sunsetting Review Report.

155. This item allows the Attorney-General to prevent the unintended sunsetting of an instrument that she or he considers should be exempt from sunsetting, but where extenuating circumstances may prevent the exemption from coming into force before that instrument would have sunset.

Item 64 - Subsection 51(2)

156. Existing subsection 51(2)(b) of the Legislation Act requires the Attorney-General to cause a copy of the certificate of deferral, which is a legislative instrument, to be laid before each House of the Parliament within six sitting days of the issuing of the certificate. This is different to the tabling requirement for other legislative instruments under subsection 38(1) of the Legislation Act, which requires the instrument to be laid before each House of the Parliament within six sitting days of the registration of the instrument.

157. This item repeals paragraph 51(2)(b) to align the tabling requirements for certificates of deferral with those of other legislative instruments, by requiring certificates of deferral to be laid before each House within six sitting days of registering the certificate in accordance with subsection 38(1) of the Legislation Act. This is appropriate, as deferring the sunsetting day of an instrument is a significant matter of which the Parliament should be advised. This amendment reflects recommendation 16 of the Sunsetting Review Report.

158. This item also repeals paragraph 51(2)(a), which prescribes the requirement for certificates of deferral to include a statement of reasons. This repeal is consequential to the insertion of new subsection 51(5) by item 65 of Schedule 1.

Item 65 - At the end of section 51

159. This item inserts new subsections 51(4) and (5) into the Legislation Act.

Subsection 51(4)

160. Currently, a certificate of deferral issued under paragraph 51(1)(c) of the Legislation Act is a legislative instrument by virtue of subsection 51(3), but is not subject to disallowance by virtue of item 19 of section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (LEOMR).

161. New subsection 51(4) provides that a certificate of deferral is exempt from disallowance if it defers the sunsetting day of an instrument by up to 12 months, meaning that a certificate of deferral that defers the sunsetting of a legislative instrument by 18 or 24 months will be subject to disallowance. This is because a certificate purporting to defer the sunsetting of a legislative instrument by 18 or 24 months is a significant matter that should be subject to parliamentary scrutiny. This reflects recommendation 11 of the Sunsetting Review Report.

162. Item 19 of section 10 of the LEOMR becomes redundant upon the commencement of new subsection 51(4) and will be repealed in due course.

Subsection 51(5)

163. Currently, paragraph 51(2)(a) of the Legislation Act requires that the Attorney-General include in certificates of deferral issued under paragraph 51(1)(c) a statement of the reasons for the issue of the certificate.

164. New subsection 51(5) would require the statement of reasons for the issue of the certificate to be contained in the explanatory statement for the certificate, rather than the certificate itself. This reflects recommendation 18 of the Sunsetting Review Report.

165. An explanatory statement is an important aid to interpreting and understanding the purpose and operation of a legislative instrument. As such, it is more appropriate for a statement of the reasons for the issue of the certificate to be contained in the explanatory statement.

Item 66 - Paragraph 51A(1)(b)

166. Section 51A of the Legislation Act provides that the Attorney-General may issue a declaration (a 'sunset-altering instrument') aligning the sunsetting days of two or more legislative instruments to the 1 April or 1 October of a year that is up to five years later. The Attorney-General must be satisfied, on application by the rule-maker, that:

•

the instruments are or will be the subject of a single review (often referred to as a 'thematic review') (paragraph 51A(1)(a)), and

•

the making of the declaration will facilitate the undertaking of the review and the implementation of its findings (paragraph 51A(1)(b)).

167. This item omits 'and' and substitutes 'or' in paragraph 51A(1)(b). This amendment allows the Attorney-General to align the sunsetting days of two or more instruments if she or he is satisfied that to do so would facilitate either the undertaking of a review or the implementation of the findings of a completed review.

168. The objective of section 51A, which was inserted by the Legislative Instruments Amendment (Sunsetting Measures) Act 2012, was to encourage robust reviews of current legislative instruments which might include engagement and consultation with business and other stakeholders. Noting that the participation of business and other stakeholders in consultation processes can be hampered by large volumes of legislative reviews, an alignment of sunsetting dates facilitates the undertaking of a single thematic review of legislation and reduces the burden of multiple consultation processes.

169. The implementation of a review's findings is an essential step in the undertaking of a review of the legislation. The amendment to section 51A made by this item provides flexibility and incentivises the implementation of the findings of a completed review, regardless of whether the review was instigated for reasons other than the sunsetting process. Since the implementation of the findings is an essential step in the process of undertaking a thematic review, this amendment is consistent with the objective of section 51A. It also reflects recommendation 19 of the Sunsetting Review Report.

170. As legislative instruments, sunset-altering instruments are subject to the parliamentary scrutiny mechanisms in Part 2 of Chapter 3 of the Legislation Act, including section 42 (disallowance).

Item 67 - At the end of section 51A

171. This item inserts new subsection 51A(4) in the Legislation Act to require that the explanatory statement for a sunset-altering instrument made under section 51A include a statement of the reasons for the making of the instrument. This reflects recommendation 18 of the Sunsetting Review Report.

172. Unlike certificates issued under paragraph 51(1)(c), there is no current requirement that declarations issued under section 51A must contain include a statement of reasons, either in the declaration itself or in the explanatory statement for the declaration.

173. This amendment would resolve the inconsistency between section 51 and 51A. It would also promote transparency and encourage greater accountability in undertaking robust reviews by publicising the details of proposed thematic reviews.

Items 68 to 70 - Amendments to section 5

174. Section 53 of the Legislation Act allows either House of the Parliament to pass a resolution to defer the sunsetting day of a legislative instrument for a further 10 years (a 'parliamentary roll over'). The resolution must be passed within six months after the instrument is mentioned in either a certificate laid before a House of the Parliament under section 51 ('certificate of deferral') or in a list laid before a House of the Parliament under section 52 ('sunsetting list').

175. The existence of the parliamentary roll over mechanism recognises the Parliament's ultimate authority over delegated legislation, including preventing the sunsetting of delegated legislation.

176. Items 68 and 70 amend subsection 53(1) to remove the requirement that a parliamentary roll over resolution must be passed within six months after the instrument in question is mentioned in a certificate of deferral or a sunsetting list. The effect of the amendments is that the Parliament may pass a resolution to roll over a legislative instrument at any time after that instrument is mentioned in a sunsetting list or a certificate of deferral and before its sunsetting day. This recognises that the six-month time limit was an inappropriate restriction on Parliament's authority and reflects recommendation 25 of the Sunsetting Review Report.

177. Item 69 amends subparagraph 53(1)(a)(i) to reflect that, as a consequence of the repeal of paragraph 51(2) by item 64, certificates of deferral will be laid before a House of the Parliament in accordance with section 38 (which prescribes tabling requirements for all legislative instruments) rather than under section 51.

Item 71 - Paragraph 54(1)(a)

178. Subsection 54(1) of the Legislation Act provides that the sunsetting framework in Part 4 of Chapter 3 does not apply to a legislative instrument if the enabling legislation for the instrument (other than the Corporations Act 2001):

•

facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States; and

•

authorises the instrument to be made by the body or for the purposes of the body or scheme.

179. Subsection 54(1) was inserted into the then-Legislative Instruments Act 2003 because instruments that are part of a multilateral agreement should not be subject to a unilateral sunsetting process which would cause them to cease to exist in only one of the jurisdictions that are party to the agreement.

180. This item inserts the phrase 'or Territories' into paragraph 54(1)(a) to clarify that subsection 54(1) also applies in relation to intergovernmental bodies or schemes involving the Commonwealth and one or more States or Territories. This reflects recommendation 36 of the Sunsetting Review Report.

181. Subsection 44(1) is set out in similar terms, and item 34 of this Schedule makes corresponding amendments to that provision.

Item 72 - Section 55

182. This item amends the simplified outline in section 55 of the Legislation Act to provide that a review of the sunsetting framework set out under Part 4 of Chapter 3 will be conducted in 2027. This is consequential to the amendments made by item 73 of Schedule 1.

Item 73 - Subsection 60(1) and (4)

183. Section 60 of the Legislation Act requires a review to be undertaken of the operation of Part 4 of Chapter 3 (which deals with sunsetting) in 2017. This item amends section 60 to require a review of the operation of Part 4 of Chapter 3 to be undertaken in 2027. This reflects recommendation 3 of the Sunsetting Review Report.

184. Because the substantive provisions of the then-Legislative Instruments Act 2003 commenced on 1 January 2005, older legislative instruments made before 1 January 2005 were registered in bulk on that day. As such, the operation of the sunsetting framework could not be fully assessed until 1 April 2015 when the first group of legislative instruments began to sunset.

185. In that sense, the sunsetting framework was still in the relatively early stages of operation at the time of the 2017 review into the operation of the sunsetting framework. As such, it is appropriate to undertake a further review of the sunsetting provisions at a later date when more evidence of their operation can be gathered.

Item 74 - Application and saving provisions

186. This item contains application and saving provisions relating to amendments made by Schedule 1.

Subitem 74(1)

187. Subitem 74(1) provides that the amendments of paragraph 14(1)(a) of the Legislation Act, which provide that a legislative or notifiable instrument may apply, adopt or incorporate the provisions of rules of court as in force at a particular time or as in force from time to time, apply to application, adoption or incorporations of provisions by an instrument made on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendments do not have retrospective effect.

Subitem 74(2)

188. This subitem provides that the amendment of section 38 of the Legislation Act, which provides that a legislative instrument is repealed if it is not laid before each House of the Parliament within six sitting days of registration, apply in relation to a legislative instrument that is registered on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendment does not have retrospective effect.

Subitem 74(3)

189. This subitem provides that the amendments of section 42 of the Legislation Act, which clarify the effect of disallowance and the period during which a motion for disallowance can be moved or passed, apply in relation to a legislative instrument that is laid before a House of the Parliament on or after the commencement of item 74. This ensures the amendments do not have retrospective effect.

Subitem 74(4)

190. This subitem provides that the amendment of paragraph 44(1)(a) of the Legislation Act, which clarifies that subsection 44(1) also applies to intergovernmental schemes between the Commonwealth and one or more Territories, applies in relation to a legislative instrument that is made on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendment does not have retrospective effect.

Subitems 74(5), (6) and (7)

191. Subsection 45(1) of the Legislation Act provides that an instrument that ceases to have effect because it was not laid before Parliament within six sitting days of registration (under subsection 38(3)) or because it was disallowed or deemed to be disallowed (under subsections 42(1) or (2)) has the same effect as if that instrument was repealed.

192. Subitem 74(5) provides that subsection 45(1), which is repealed by item 36, nonetheless continues to apply on and after the commencement of this item in relation to a legislative instrument that was registered or was laid before a House of the Parliament before the commencement of item 74.

193. Subitem 74(6) provides that the amendments of subsection 45(2) of the Legislation Act, which clarify that the effect of the operation of subsections 38(2), 42(1) and 42(2) is that the repealing instrument or repealing provision is repealed rather than merely ceasing to be in force, apply in relation to a legislative instrument or a provision of a legislative instrument that is repealed by subsection 38(3) or 42(1) or (2) of that Act on or after the commencement of item 74.

194. Subitem 74(7) provides that subsection 45(2) continues to apply on or after the commencement of this item in relation to a legislative instrument that was registered or was laid before a House of the Parliament before the commencement of item 74.

195. The repeal of subsection 45(1) and the amendments to subsection 45(2) by items 37 and 38 do not change the substance of existing section 45. As such, subitems 74(5), (6) and (7) are merely intended to ensure that there is certainty in relation to instruments to which subsections 45(1) and (2) would have applied before their repeal or amendment.

Subitem 74(8)

196. This subitem provides that the amendments of sections 48A, 48C and 48D of the Legislation Act, which clarify the operation of the provisions relating to automatic repeal of spent instruments, apply in relation to a legislative or notifiable instrument that is made on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendments do not have retrospective effect.

Subitems 74(9) and (10)

197. These subitems provide that the amendments of section 51 of the Legislation Act, which relate to the scope of the Attorney-General's discretion to issue certificates of deferral and impose a requirement for a statement of reasons to be included in the explanatory statement, apply in relation to a certificate issued under section 51 on or after the commencement of item 74 (even if the enabling provision for the certificate exists at commencement). This ensures the amendments do not have retrospective effect.

Subitem 74(11)

198. This subitem provides that the amendments of section 51A of the Legislation Act, which clarifies the circumstances in which section 51A can apply and impose a new requirement for a statement of reasons to be included in the explanatory statement, apply in relation to an instrument made under section 51A on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendments do not have retrospective effect.

Subitem 74(12)

199. This subitem provides that the amendments of section 53 of the Legislation Act apply in relation to a legislative instrument where the relevant certificate of deferral or sunsetting list is laid before a House of the Parliament before, on or after the commencement of this item.

200. The amendments of section 53 recognise the principle that Parliament should have ultimate authority over delegated legislation by ensuring that Parliament may pass a resolution to roll over a legislative instrument at any time after that instrument is mentioned in a sunsetting list or a certificate of deferral. Consistent with this principle, the effect of subitem 74(12) is that a House of the Parliament will be able to move such a resolution in relation to any instrument that has been mentioned in a certificate of deferral or a sunsetting list that has been laid before that House at any time.

Subitem 74(13)

201. This subitem provides that the amendment of paragraph 54(1)(a) of the Legislation Act, which clarifies that subsection 54(1) also applies to intergovernmental schemes between the Commonwealth and one or more Territories, applies in relation to a legislative instrument that is made on or after the commencement of item 74 and to a legislative instrument in force immediately before the commencement of item 74. This ensures that the Commonwealth does not unilaterally sunset an instrument that is already in force and part of a multilateral agreement with a Territory. It also puts beyond doubt that the amendment of paragraph 54(1)(a) does not operate to re-enliven an instrument that has already sunset.

Schedule 2 - Other measures

Part 1 - Main amendment

Division 1 - Amendments commencing on the day after Royal Assent

Acts Interpretation Act 1901

Items 1 and 2 - Paragraphs 10(c) and 10A(c)

202. Sections 10 and 10A of the Acts Interpretation Act concern references to amended or re-enacted Acts and amended or re-enacted laws of States and Territories respectively. Paragraphs 10(c) and 10A(c) provide, respectively, that where an Act contains a reference to a provision of another Act or to a provision of a law of a State or Territory, and that provision is repealed and re-enacted (or the other Act or State or Territory law is repealed and re-enacted), the reference to the repealed provision extends to any corresponding re-enacted provision.

203. Paragraphs 10(c) and 10A(c) were inserted by the Acts Interpretation Amendment Act 2011 to ensure the continuation and effectiveness of a cross-reference to a provision in situations where a particular provision or provisions are repealed and re-enacted, as opposed to an entire Act. The operation of these provisions ensures that if, for example, the hypothetical 'Dogs Act 2000' were repealed and re-enacted as the 'Dogs Act 2010', any reference to section 10 of the 2000 Act may be read as a reference to section 10 of the new 2010 Act.

204. According to the Explanatory Memorandum to the Acts Interpretation Amendment Act 2011, paragraphs 10(c) and 10A(c) also ensure that, for example, if section 5A of the hypothetical 'Pears Act 2005' is re-enacted as section 6, a reference to former section 5A can be read as a reference to the new section 6. However, this is not clear from the text of paragraphs 10(c) and 10A(c).

205. Items 1 and 2 insert the phrase '(whether or not the re-enacted provision has the same number as the repealed provision)' at the end of paragraphs 10(c) and 10A(c) to clarify that these provisions also apply to circumstances where a particular provision is re-enacted as a differently numbered provision, consistent with the original intention behind those provisions.

206. This also clarifies that paragraphs 10(c) and 10A(c) apply to re-enacted provisions no matter how they are described (for example, by a combination of numbers, letters and hyphens). For example, if section 126 of an Act were re-enacted as section 126A, any reference to section 126 could thereafter be read as a reference to section 126A. Similarly, if section 10 of an Act were repealed and replaced by section 10-5, any reference to section 10 could thereafter be read as a reference to section 10-5.

Item 3 - Paragraph 46AA(1)(b)

207. Paragraph 46AA(1)(a) of the Acts Interpretation Act provides for an instrument, other than a legislative instrument, a notifiable instrument or a rule of court, to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. Paragraph 46AA(1)(b) allows an instrument to apply, adopt or incorporate any matter contained in any other instrument or writing in the form that exists at the time the instrument commences.

208. Item 3 repeals and replaces paragraph 46AA(1)(b) to clarify that an instrument may apply, adopt or incorporate any matter contained in another instrument or writing that is in force or existing at either:

•

the time when the first-mentioned instrument commences, or

•

a time before the first-mentioned instrument commences even if the other instrument or writing is not in force or existing when the first-mentioned instrument commences.

209. The purpose of item 3 is to clarify that an instrument may apply, adopt or incorporate a matter contained in another instrument or writing which, although not the version in force at the time the instrument commences, was in force at some time prior to that commencement and continues to be readily identifiable and accessible. This puts beyond doubt that an instrument may make provision in relation to a matter by applying, adopting or incorporating a matter contained in a version of a document that is no longer current at the time of its incorporation. This ensures that Parliament has an opportunity to be aware of the content of the instrument even though it is no longer in force.

210. The amendment made by this item is consistent with new paragraph 14(1)(b) of the Legislation Act, as repealed and substituted by item 9 of Schedule 2, which deals with incorporation of material in legislative and notifiable instruments.

Item 4 - Application provision

211. Item 4 contains an application provision for item 3 of Schedule 2, with the effect that the repeal and substitution of paragraph 46AA(1)(b) of the Acts Interpretation Act applies to application, adoption or incorporation of provisions by an instrument made on or after the commencement of this item, whether the legislation authorising or requiring the instrument was made before, on or after that commencement. This ensures the amendment does not apply retrospectively.

Legislation Act 2003

Items 5 to 8 - Amendments to section 12

212. Section 12 of the Legislation Act provides for the commencement of legislative and notifiable instruments. Subsection 12(3) provides that a provision of a legislative or notifiable instrument may commence before the day on which the instrument is registered. This is subject to the caveat in subsection 12(2) that any such provision does not apply in relation to a person (other than the Commonwealth) to the extent that the retrospective application would affect the person's rights so as to disadvantage them or impose liabilities on them.

213. Items 5 to 8 make various amendments to put beyond doubt that section 12 of the Legislation Act authorises the making of a legislative or notifiable instrument that commences retrospectively under any enabling legislation. The amendments are intended to explicitly displace the common law position that express legislative power is required under the enabling legislation to authorise retrospective commencement of regulations and other legislative instruments. The ability for an instrument to commence retrospectively may be displaced by a contrary provision under subsection 12(4).

214. Item 5 inserts new subsection 12(1A) to allow a legislative or notifiable instrument to provide that the instrument or a provision of the instrument commences before it is registered on the Federal Register of Legislation, despite any principle or rule of common law. This includes circumstances where an instrument or provision of an instrument is expressed to commence at the start of a particular day, but is not registered and published on the Register until later that day.

215. Item 6 repeals and substitutes a new subsection 12(2) that is expressed in substantially the same terms as the repealed provision, with minor changes to reflect the insertion of new subsection 12(1A). New subsection 12(2) operates in the same way as the repealed subsection 12(2), by displacing the effect of new subsection 12(1A) to the extent that the retrospective commencement adversely affects the rights or liabilities of a person other than the Commonwealth. This renders an instrument or provision of an instrument ineffective only to the extent that it has a retrospective adverse effect on a person, rather than rendering it ineffective in relation to all people both prospectively and retrospectively merely because the rights or liabilities of one person have been adversely affected by the retrospectivity.

216. Item 6 also repeals subsection 12(3), as it is made redundant by new subsection 12(1A).

217. Item 7 prescribes a new subheading of 'Retrospective commencement or application subject to contrary provision' before subsection 12(4).

218. Item 8 makes consequential amendments to subsection 12(4) to reflect the insertion of new subsection 12(1A) and the repeal of subsection 12(3).

219. New subsection 12(4) provides that an enabling Act can displace the effect of both new subsections 12(1A) and 12(2) by an express provision in that Act.

Item 9 - Paragraph 14(1)(b)

220. Paragraph 14(1)(a) of the Legislation Act provides for a legislative or notifiable instrument to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. Paragraph 14(1)(b) allows a legislative or notifiable instrument to apply, adopt or incorporate any matter contained in any other instrument or writing in the form that exists at the time the instrument commences.

221. Item 9 repeals and replaces paragraph 14(1)(b) to clarify that a legislative or notifiable instrument may apply, adopt or incorporate any matter contained in another instrument or writing that is in force or existing at either:

•

the time when the first-mentioned instrument commences, or

•

a time before the first-mentioned instrument commences even if the other instrument or writing is not in force or existing when the first-mentioned instrument commences.

222. The purpose of item 9 is to clarify that a legislative or notifiable instrument may apply, adopt or incorporate a matter contained in another instrument or writing which, although not the version in force at the time the instrument commences, was in force at some time prior to that commencement and continues to be readily identifiable and accessible. This puts beyond doubt that an instrument may make provision in relation to a matter by applying, adopting or incorporating a matter contained in a version of a document that is no longer current at the time of its incorporation.

223. The amendment made by this item is consistent with new paragraph 46AA(1)(b) of the Acts Interpretation Act, as repealed and substituted by item 3 of Schedule 2, which deals with incorporation of material in instruments other than legislative instruments, notifiable instruments and rules of court.

Item 10 - Application provisions

224. Subitem 10(1) provides that the amendments made to section 12 of the Legislation Act by items 5 to 8 of Schedule 2 apply to instruments made on or after the commencement of this item, regardless of whether the enabling legislation for the instrument was made before, on or after that commencement. This ensures the amendments do not apply retrospectively.

225. Subitem 10(2) provides that the repeal and substitution of paragraph 14(1)(b) by item 9 of Schedule 2 applies to application, adoption or incorporation of provisions by an instrument made on or after the commencement of this item, whether the enabling legislation for the instrument was made before, on or after that commencement. This ensures the amendment does not apply retrospectively.

Division 2 - Amendments commencing on Proclamation

Legislation Act 2003

Item 11 - Rectification of the Federal Register of Legislation

226. This item repeals section 15D of the Legislation Act and substitutes new sections 15D and 15DA to clarify the limits of the First Parliamentary Counsel's power to rectify errors on the Federal Register of Legislation. The power to rectify errors ensures that the text of the law on the Register accurately reflects the law as passed by the Parliament or as made by a rule-maker. It does not give the First Parliamentary Counsel any power to correct errors that are in the original text of the law as passed by the Parliament or as made by a rule-maker.

New section 15D: Federal Register of Legislation-rectification of Register

227. New subsection 15D(1) provides that, if the First Parliamentary Counsel becomes aware that the Register contains an error, she or he must arrange for the error in the Register to be rectified as soon as possible.

228. For the purposes of this section, an error is defined by new paragraph 15D(1)(b) to be that:

•

the text of an Act as it appears in the Register is not the same as the text of the Act as assented to

•

the text of a legislative or notifiable instrument as it appears in the Register is not the same as the text of the instrument as made by the rule-maker

•

a compilation as it appears in the Register does not represent the state of the law that it purports to represent, or

•

the text of another document on the Register as it appears in the Register is not the same as the text of the original document.

229. This ensures that administrative errors, such as lodgement of the incorrect version of an instrument or compilation for publication on the Register, can be rectified easily by the First Parliamentary Counsel.

230. New subsection 15D(2) requires that, where the First Parliamentary Counsel has exercised her or his power to rectify the Register under this section, she or he must include in the Register a brief outline of the rectification that has been made.

231. New subsection 15D(3) operates as a safeguard by providing that the effect of a rectification is displaced to the extent that it would affect any rights or privileges acquired or accrued by reason of reliance on the Register before the rectification, or to the extent that it would impose or increase any obligation or liability that was incurred before the rectification was made. This ensures that a person or entity is not adversely affected by mistakes on the Register that may have arisen from administrative error.

232. New subsection 15D(4) clarifies that the rectification of an instrument under new subsection 15D(1) does not affect the time at which that instrument is taken to have been registered. For example, the rectification of an instrument does not change the commencement of the instrument if the instrument is specified to commence on the day after registration.

New section 15DA: Requirement for re-tabling and new disallowance period after rectification of Register

233. New subsection 15DA(1) provides that this section applies if:

•

the First Parliamentary Counsel has rectified an error where the text of a disallowable legislative instrument in the Register is not the same as the text of the instrument as made by the rule-maker

•

the error is rectified by replacing the version of the instrument that was previously registered ('the originally tabled version') with another version ('the correct version'), and

•

at the time of the rectification, the originally tabled version has already been laid before either or both Houses of the Parliament in accordance with section 38 of the Legislation Act.

234. The effect of this subsection is that new section 15DA would not operate where an error in the text of a disallowable legislative instrument is identified and rectified before that instrument is tabled in the Parliament.

235. New subsection 15DA(2) requires the First Parliamentary Counsel to arrange for the correct version to be laid before each House of the Parliament within six sitting days of that House after the rectification. This ensures that the Parliament is made aware of any changes to the text of an instrument that has already been tabled by requiring the correct version to be re-tabled.

236. New subsection 15DA(3) prescribes the mechanisms for retaining parliamentary oversight of instruments for which a correct version has been re-tabled in each House of the Parliament in accordance with subsection 15DA(2). This is subject to new subsection 15DA(4), which excludes the operation of subsection 15DA(3) for instruments that have already been disallowed in full at the time the correct version is delivered to a House of the Parliament for re-tabling.

237. New paragraph 15DA(3)(a) provides that an instrument is taken to have been laid before a House of the Parliament in accordance with subsection 38(1) of the Legislation Act when the correct version is delivered to be laid in accordance with new subsection 15DA(2). However, new paragraph 15DA(3)(a) does not affect the operation of subsection 39(2), which ensures that the explanatory statement that was laid before each House of the Parliament in conjunction with the originally tabled version does not need to be re-tabled with the correct version.

238. New paragraph 15DA(3)(b) provides that the instrument becomes subject to the disallowance mechanism in Part 2 of Chapter 3 of the Legislation Act from the date on which the correct version is laid before each House of the Parliament. This ensures that administrative error does not prevent the Parliament from retaining full oversight over delegated legislation, particularly where the correct version of an instrument is substantively different from the originally tabled version.

239. New paragraph 15DA(3)(c) provides that section 46 of the Legislation Act applies as if instrument had been registered at the time it was rectified. Section 46 provides that, during the period between the registration of a legislative instrument and seven days after the later of the days on which the instrument is laid before each House of the Parliament, no legislative instrument that is the same in substance as the first-mentioned instrument may be made without the prior agreement of both Houses of the Parliament.

240. The purpose of section 46 is to prevent the theoretical possibility that a rule-maker could avoid parliamentary scrutiny indefinitely by repeatedly making an instrument, failing to table it and repealing and remaking it during or immediately upon the expiration of the period prescribed by section 38. Consistent with this purpose, new paragraph 15DA(3)(c) ensures that the prohibition in section 46 applies to the instrument from the time of the rectification.

241. New paragraph 15DA(3)(d) provides that, if the disallowance period for the originally tabled version has ended, the fact that the instrument (or a provision thereof) has been automatically repealed under section 48A (automatic repeal of amending and repealing instruments) or section 48C (automatic repeal of amending and repealing provisions) of the Legislation Act (as modified by items 42 to 54 of Schedule 1) is taken not to have occurred for all purposes.

242. The commencement of a new disallowance period upon the laying of the correct version before each House of the Parliament removes the disallowance period relating to the originally tabled version and most consequences flowing from that disallowance period. This includes the automatic repeal of an instrument at the end of the instrument's original disallowance period. If the instrument has already been automatically repealed at the end of the original disallowance period, it would instead be taken to have been automatically repealed at the end of the later disallowance period that begins the sitting day after the correct version is tabled. (However, as prescribed by new paragraphs 15DA(3)(e) and (f), this does not remove the effect of any extant notices of motion to disallow that instrument or the effect of any disallowance of a provision of that instrument.)

243. New paragraph 15DA(3)(e) operates to continue the effect of a notice of motion to disallow that is already on foot at the time the correct version is tabled. It provides that, where a notice of motion to disallow the instrument (or a provision thereof) has already been given in a House of the Parliament at the time the correct version is laid before that House in accordance with new subsection 15DA(2), and that notice has not been withdrawn or disposed of, then the notice is taken to have been given on the sitting day after the correct version is tabled. This ensures that the rectification of an error will not operate to override a decision of a House of the Parliament to move a notice of motion to disallow the instrument, and that each House will have the full 15 sitting day period in which to consider the correct version that has been re-tabled.

244. New paragraph 15DA(3)(f) provides that, where a provision of an instrument has already been disallowed, that provision remains disallowed despite the re-tabling of the correct version in accordance with new subsection 15DA(2). However, new subsection 15DA(3) will still otherwise apply to the remainder of the instrument. In particular, the remainder of the instrument will still become subject to the disallowance mechanism in Part 2 of Chapter 3 of the Legislation Act from the date on which the correct version is laid before each House of the Parliament.

245. Where the disallowed provision appears in identical form in both the originally tabled version and the correct version, the correct version that is re-tabled in each House of the Parliament would include the disallowed provision to represent the instrument as made by the rule-maker.

246. Where the disallowed provision is different between the originally tabled version and the correct version, the correct version that is re-tabled in each House of the Parliament would include the disallowed provision as it should have appeared. However, that provision would still be taken to have been disallowed. This is consistent with the treatment of an instrument that has been disallowed in its entirety before the correct version can be re-tabled. In both cases, the fact of administrative error does not remove the effect of the disallowance.

247. New subsection 15DA(4) provides that the new subsection 15DA(3) does not apply to instruments that have already been disallowed in full at the time the correct version is re-tabled in each House of the Parliament. This ensures that the rectification of an error will not operate to override a decision of a House of the Parliament to disallow the affected instrument.

248. New subsection 15DA(5) clarifies that the laying before a House of the Parliament of an instrument under new subsection 15DA(2) does not affect the time at which that instrument is taken to have been registered, except as otherwise provided for by paragraph 15DA(3)(c). This means that the re-tabling of the correct version would not change the commencement of the instrument if the instrument is specified to commence on the day after registration.

Item 12 - Subparagraph 15L(1)(e)(i)

249. Section 15L of the Legislation Act requires responsible persons for registered Acts, registered legislative instruments or registered notifiable instruments to notify the First Parliamentary Counsel of certain events that affect the currency or accuracy of the Register. Subparagraph 15L(1)(e)(i) further provides that such an event includes where a responsible person becomes aware of an error in the Register to which subsection 15D(1) may apply.

250. This item replaces the description of subsection 15D(1) in the brackets, which is '(correction of registration errors)', with '(Federal Register of Legislation-rectification of Register)'. This reflects the amendments made by item 11 of Schedule 2.

Item 13 - Application provision

251. Item 13 contains an application provision for item 11 of Schedule 2, with the effect that the repeal and substitution of section 15D of the Legislation Act applies in relation to errors rectified on or after the commencement of this item. This ensures that new section 15D does not apply retrospectively.

Part 2 - Consequential amendments

Excise Act 1901

Item 14 - Subsection 164A(2)

252. This item amends subsection 164A(2) of the Excise Act 1901 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Excise Tariff Act 1921

Item 15 - Subsection 6CA(1A) (note)

253. This item amends the Note under subsection 6CA(1A) of the Excise Tariff Act 1921 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Income Tax Assessment Act 1997

Item 16 - Subsections 293-115(7) and 293-145(2A)

254. This item amends subsections 293-115(7) and 293-145(2A) of the Income Tax Assessment Act 1997 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Independent Contractors Act 2006

Item 17 - Subsection 42(4)

255. This item amends subsection 42(4) of the Independent Contractors Act 2006 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Taxation Administration Act 1953

Item 18 - Subsection 133-130(4) in Schedule 1

256. This item amends subsection 133-130(4) in Schedule 1 to the Taxation Administration Act 1953 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Part 3 - Contingent amendments

Criminal Code Act 1995

Item 19 - Subsection 80.1AA(2A) of the Criminal Code

257. This section amends subsection 80.1AA(2A) of the Criminal Code Act 1995 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

258. This item is contingent upon the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 not having commenced at the time this item commences. This is because item 4 of Schedule 1 to that Act repeals the provision amended by this item.