House of Representatives

Explanatory Memorandum

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

Notes on clauses

Part 1 - Preliminary

Clause 1: Short title

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

Clause 2: Commencement

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

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

Clause 3: Schedule(s)

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

Part 2 - Transitional provisions

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

Clause 4: Transitional Provisions

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

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

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

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

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

Clause 5: Transitional Regulations

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