House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)

Schedule 3 - Amendments relating to forms and technical matters

GENERAL OUTLINE

747. Schedule 3 makes amendments to provisions of the Legislation Act and Acts Interpretation Act (as amended by the Acts and Instruments (Framework Reform) Act). It amends section 14 of the Legislation Act (incorporation of material in instruments) and section 46AA of the Acts Interpretation Act (incorporation of material in instruments other than legislative or notifiable instruments) to modify the way in which those provisions apply to forms. Consequential to these changes, Schedule 3 also repeals unnecessary application provisions of the Acts and Instruments (Framework Reform) Act. Schedule 3 also makes minor technical corrections to the Legislation Act.

PART 1 - Amendments

Acts and Instruments (Framework Reform) Act 2015

Item 1 - Items 170 and 178 of Schedule 1

748. Item 1 repeals items 170 and 178 of Schedule 1 to the Acts and Instruments (Framework Reform) Act. These items deal with the application of amendments made by that Act to section 14 of the Legislative Instruments Act (incorporation of material in instruments) and section 46AA of the Acts Interpretation Act (incorporation of material in instruments which are not legislative or notifiable instruments). The result of the amendments made by items 2 and 3 in this Schedule will be that the general rules in sections 14 and 46AA will no longer be changed by the Acts and Instruments (Framework Reform) Act, so it is not necessary to provide for the application of amendments to those provisions. The application of the amendments of those sections made by items 2 and 3 in this Schedule in relation to forms is dealt with in item 6 of this Schedule.

Acts Interpretation Act 1901

Item 2 - Subsection 46AA(4)

749. Item 2 repeals subsection 46AA(4) of the Acts Interpretation Act (as amended by the Acts and Instruments (Framework Reform) Act 2015) and substitutes a new subsection 46AA(4). Section 46AA deals with incorporation of material in instruments which are not legislative or notifiable instruments. Section 46AA (as amended by the Acts and Instruments (Framework Reform) Act) provides that such instruments may incorporate the provisions of Acts or disallowable legislative instruments as in force from time to time. Other types of instruments may not be incorporated as in force from time to time unless this is expressly provided for in the enabling legislation. Subsection 46AA(4) is also amended by the Acts and Instruments (Framework Reform) Act to provide that despite these general rules, instruments may authorise or require specific forms to be used, but only on the condition that those forms are either notifiable instruments (which are required to be registered) or are otherwise required to be made publicly available.

750. The new subsection 46AA(4), as substituted by item 2 of this Schedule, provides unconditionally that if an instrument provides for a form to be used, the general rules in section 46AA do not apply to the form. This means that instruments may effectively incorporate forms, whether or not those forms are themselves required to be made publicly available. Because forms are administrative frameworks for the provision of information, and do not contain substantive legal content, it is not necessary that the forms themselves be made publicly available.

Legislation Act 2003

Item 3 - Subsection 14(4)

751. Item 3 repeals subsection 14(4) of the Legislation Act (as amended by the Acts and Instruments (Framework Reform) Act) and substitutes a new subsection 14(4). Section 14 deals with incorporation of material in legislative and notifiable instruments. Section 14 (as amended by the Acts and Instruments (Framework Reform) Act) provides that such instruments may incorporate the provisions of Acts or disallowable legislative instruments as in force from time to time. Other types of instruments may not be incorporated as in force from time to time unless this is expressly provided for in the enabling legislation. Subsection 14(4) is also amended by the Acts and Instruments (Framework Reform) Act) to provide that despite these general rules, instruments may authorise or require specific forms to be used, but only on the condition that those forms are either notifiable instruments (which are required to be registered) or are otherwise required to be made publicly available.

752. The new subsection 14(4), as substituted by item 3 of this Schedule, provides unconditionally that if an instrument provides for a form to be used, the general rules in section 14 do not apply to the form. This means that legislative and notifiable instruments may effectively incorporate forms, whether or not those forms are themselves required to be made publicly available. Because forms are administrative frameworks for the provision of information, and do not contain substantive legal content, it is not necessary that the forms themselves be made publicly available.

Item 4 - Paragraph 15A(3)(b)

753. Item 4 makes a technical correction to paragraph 15A(3)(b) of the Legislation Act (as inserted by the Acts and Instruments (Framework Reform) Act) to insert a missing parenthesis.

Item 5 - Subsection 15H(1)

754. Item 5 makes a technical correction to subsection 15H(1) of the Legislation Act (as inserted by the Acts and Instruments (Framework Reform) Act) to remove an unnecessary reference to 'document'.

PART 2 - Application of Amendments

Item 6 - Application of amendments relating to forms

755. Item 6 provides for the application of the amendments relating to forms in this Schedule. It makes clear that the amendments apply, on or after the commencement of the amendments, to forms made before or after the commencement of the Schedule, whether the instrument providing for the form to be used is itself made before or after commencement. Item 6 also makes clear that the amendments in this Schedule do not affect the interpretation of section 46AA of the Acts Interpretation Act or section 14 of the Legislation Act, as applying before the commencement of the amendments, to forms made before that commencement. Such interpretation might otherwise have resulted in an inference that, before that commencement, sections 46AA and 14 had an application in relation to forms that it is not considered they necessarily did have (in the absence of that inference).