Senate

Replacement Explanatory Memorandum

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

General outline

The Legislative Instruments Act 2003 established a comprehensive regime for the registration, tabling, parliamentary scrutiny and sunsetting (automatic repeal) of Commonwealth legislative instruments. It also established an authoritative, complete and accessible register of those instruments, including compilations (the electronic equivalent of up-to-date reprints) and explanatory statements.

A statutory review of the Legislative Instruments Act was conducted in 2008 by a committee comprising Mr Anthony Blunn AO, Mr Ian Govey and Professor John McMillan AO. The committee consulted a broad range of stakeholders through the release of an issues paper and a series of meetings. It produced the report titled 2008 Review of the Legislative Instruments Act 2003. The committee found that the Legislative Instruments Act had been successful in providing a repository of legislative instruments, improving public access to legislative instruments and facilitating parliamentary scrutiny of legislative instruments.

The committee found that the Legislative Instruments Act had:

...fundamentally changed the way in which Commonwealth legislative instruments are made, published and reviewed. It gives effect to important principles of access to the law and review of executive action which underpin open and accountable government.

The committee also made a number of recommendations to enhance the Register, and to improve the clarity and operation of the legislation that governs it.

Following the review and in response to the recommendations, a number of measures have been taken. This includes work to manage the sunsetting of legislative instruments across the Commonwealth, including through the introduction of a regulation-making power to enable the repeal of spent instruments. Technical enhancements have been made to the Register to ensure a high level of performance and useability, and to support the sunsetting of instruments. The Office of Parliamentary Counsel has updated the Legislative Instruments Handbook to provide more detailed guidance to help Commonwealth rule-makers and agencies to manage their legislative instruments efficiently, effectively and in accordance with the law.

As a result of other recommendations of the committee and the passage of time, the scheme now requires reform to enhance the accessibility of Commonwealth instruments and to improve the efficiency and operability of the scheme.

PURPOSE

The Bill implements a number of the outstanding recommendations of the 2008 Review of the Legislative Instruments Act 2003. The Bill makes a number of other amendments to improve the operation and clarity of legislative frameworks for Commonwealth Acts and instruments and contribute to the Government's deregulation agenda by creating administrative efficiencies across government and enhancing the public accessibility of Commonwealth laws.

Schedule 1

The Bill consolidates the frameworks for the publication of Commonwealth Acts and the registration of legislative and other instruments by repealing the Acts Publication Act 1905 and incorporating the requirements for publishing Commonwealth Acts into the Legislative Instruments Act.

To reflect this change, the Legislative Instruments Act will be renamed the Legislation Act 2003. The existing Acts database established under the Acts Publication Act and the existing Federal Register of Legislative Instruments (both are accessible by ComLaw) will be integrated into a single register called the Federal Register of Legislation (the Register). The Register may contain other relevant documents and information likely to be useful to users of the Register.

These changes will not alter the processes for the development and passage of legislation through the Parliament. They will not substantially alter the way in which Acts are handled under the existing publication regime. There will be some minor changes to the interpretation of legislation through amendments in the Bill relating to the Acts Interpretation Act 1901 (set out below).

The Bill also establishes a new category of instruments called notifiable instruments, which will be able to be registered in authoritative form. Notifiable instruments will not be legislative in character, and as such they will not be made subject to parliamentary scrutiny or sunsetting.

The new category of notifiable instruments is designed to cover instruments that are not appropriate to register as legislative instruments, but for which public accessibility and centralised management is desirable. Instruments may become notifiable instruments by being registered, by being prescribed by regulation under the Legislation Act, or by being declared as notifiable instruments in the enabling legislation. Registration will satisfy any existing publication requirements for the instrument (for example, gazettal).

The Register will be the central authoritative repository of Commonwealth Acts and registered instruments. It will provide access to authorised versions of Acts, legislative instruments, notifiable instruments, compilations of Acts and instruments, and explanatory statements for legislative instruments. The Register will align processes for registration, compilations, editorial changes and authorised versions. This will produce administrative efficiencies across government.

The Bill repeals transitional and spent provisions in the Legislative Instruments Act dealing with legislative instruments made before the commencement of that Act (1 January 2005), and will, as far as possible, remove references to such instruments.

The new framework will involve moving some content from the Legislative Instruments Act to amended Regulations (currently the Legislative Instruments Regulations 2004). Currently, sections 7, 44 and 54 of the Legislative Instruments Act allow for regulations to be made to exempt instruments from registration, disallowance by the Parliament and sunsetting (automatic ceasing), as well as specifying exemptions in tables in the provisions themselves. The Bill removes the exemption tables and the current exemptions will be prescribed in the Regulations. This change will make it easier for users to access information on exemptions.

The Bill also provides for the First Parliamentary Counsel to make legislative instruments known as rules to address matters relating to the Register and registration, such as the keeping of that Register, giving unique identifiers to registered Acts and instruments, lodgement and registration, the compilation of Acts and instruments and authorised versions of registered laws or documents. Given the technical nature of such matters, it is appropriate that it be dealt with in rules rather than regulations.

Schedule 2

Further, the Bill amends the Acts Interpretation Act to clarify provisions relating to references to Ministers, Departments and other government authorities, and to broaden and strengthen existing provisions relating to machinery of government changes.

Schedule 3

Finally, the Bill makes amendments to a wide range of Acts to update references to provisions that currently provide for legislative instruments to be made by referring to repealed provisions of the Acts Interpretation Act and the Statutory Rules Publication Act 1905 (which has already been repealed).

FINANCIAL IMPACT

The Bill will have a nil or insignificant financial impact on government Departments and agencies.

The amendments in this Bill impact on the publication of Commonwealth instruments, and in some cases may require the registration (publication) of instruments on the new Register that were not previously subject to registration requirements on the Federal Register of Legislative Instruments. The financial impact is expected to be nil or insignificant as instruments that are not subject to these registration requirements are generally subject to other publication processes that involve administrative overheads.

The amendments in the Bill are expected to create administrative efficiencies across government overall and enhance the public accessibility of Commonwealth laws.