Chapter 1
-
Introduction
History
Ch 1 heading inserted by No 10 of 2015, s 3 and Sch 1 item 2, effective 5 March 2016. See note under the title of the Act.
Part 2
-
Key concepts for legislative instruments and notifiable instruments
History
Pt 2 heading inserted by No 10 of 2015, s 3 and Sch 1 item 12, effective 5 March 2016. See note under the title of the Act.
SECTION 11
Definition of
notifiable instrument
What is a notifiable instrument?
(1)
If a primary law gives power to do something by notifiable instrument, then:
(a)
if the thing is done, it must be done by instrument; and
(b)
that instrument is a
notifiable instrument
.
Example 1:
A primary law provides that
"
The Minister may, by notifiable instrument, approve a form for the purposes of this section.
"
.
Example 2:
A primary law provides as follows:
"
(1) The Chief Executive may, by instrument, appoint an inspector for the purposes of section [X].
(2) The Chief Executive may, by instrument, approve a form for the purposes of section [Y].
(3) An instrument made by the Chief Executive under subsection (1) or (2) is a notifiable instrument.
"
.
(2)
Each of the following is a
notifiable instrument
:
(a)
a commencement instrument for an Act, legislative instrument or notifiable instrument, or for a provision of an Act or such an instrument;
(b)
an instrument, other than a legislative instrument, prescribed by regulation for the purposes of this paragraph;
(c)
an instrument, other than a legislative instrument, that is registered as a notifiable instrument, if the instrument is made under a power delegated by the Parliament or another power given by law;
(d)
an instrument, other than a legislative instrument, that includes a provision that amends or repeals another notifiable instrument.
Note:
The effect of paragraph (c) is that an instrument (other than a legislative instrument) may be a notifiable instrument because it is registered as a notifiable instrument, even if it would not otherwise be a notifiable instrument because of this section. For a corresponding provision relating to legislative instruments, see subsection
8(3)
.
Modification of the operation of this Act
(3)
The enabling legislation for a notifiable instrument, or a regulation under this Act in relation to a notifiable instrument, may modify the operation of this Act in relation to the instrument.
Example:
Such a regulation may provide that a provision of this Act about explanatory statements that is expressed to apply in relation to legislative instruments is also to apply to a particular class of notifiable instruments.
Registration to satisfy other publication or notification requirements
(4)
If an Act or an instrument requires an instrument (other than a legislative instrument), or the particulars of the instrument
'
s making, to be published or notified in the Gazette or in any other way, then, unless the contrary intention appears, the requirement is taken to be satisfied if the instrument is registered as a notifiable instrument.
History
S 11 substituted by No 10 of 2015, s 3 and Sch 1 item 12, effective 5 March 2016. See note under the title of the Act. S 11 formerly read:
SECTION 11 Reconsideration and review of Attorney-General
'
s certificate
(1)
If:
(a)
the Attorney-General issues a certificate under section
10
to the effect that a particular instrument is, or is not, or that an instrument of a particular kind will be, or will not be, a legislative instrument; and
(b)
the decision to issue the certificate is subsequently reviewed:
(i)
by the Federal Court of Australia or the Federal Circuit Court of Australia under the ADJR Act; or
(ii)
by the Federal Court of Australia under section
39B
of the
Judiciary Act 1903
; or
(iii)
by the High Court of Australia under paragraph 75(v) of the Constitution;
and an order is made by that court to quash or to set aside the decision;
the Attorney-General must reconsider the matter and issue a replacement certificate.
History
S 11(1) amended by No 13 of 2013, s 3 and Sch 2 item 2, by substituting
"
Federal Circuit Court of Australia
"
for
"
Federal Magistrates Court
"
in para (b)(i), effective 12 April 2013.
(2)
Despite any provision in a law of the Commonwealth to the contrary, the order of a court referred to in paragraph (1)(b) to quash or set aside the decision to issue a certificate under this section takes effect only from the time immediately before the issue of the replacement certificate.
(3)
If the Attorney-General decides, on reconsideration of the matter:
(a)
that an instrument that he or she has certified to be a legislative instrument is not such an instrument; or
(b)
that an instrument of a kind that he or she has certified will be a legislative instrument will not be such an instrument;
then, except in relation to an instrument to which subsection 5(3) applies:
(c)
that instrument, or an instrument of that kind made after the issue of the original certificate, that would, but for its registration, have been required to be notified in the
Gazette
, must be so notified as soon as practicable but not later than 3 working days after the issue of the replacement certificate; and
(d)
if the instrument is so notified, it is taken for all purposes always to have been notified as required; and
(e)
any act or thing done in accordance with the instrument, whether before or after its notification, is validly done.
(4)
If the Attorney-General decides, on reconsideration of the matter:
(a)
that an instrument that he or she certified not to be a legislative instrument is such an instrument; or
(b)
that an instrument of a kind that he or she has certified will not be a legislative instrument will be such an instrument;
then:
(c)
that instrument, or an instrument of that kind made after the issue of the original certificate, must be registered:
(i)
if Division
3
of Part 4 is applicable to the instrument
-
by the last day for lodgment for registration under that Division; or
(ii)
if that Division is not applicable or that day has already passed
-
as soon as practicable but not later than 3 working days after the issue of the replacement certificate; and
(d)
if the instrument is so registered, it is taken, for all purposes of this Act, to have been so registered within the time required by this Act for its registration; and
(e)
any act or thing done in accordance with, or in reliance on, the instrument, whether before or after its registration, is taken to have been validly done.
(5)
If the Attorney-General decides, on reconsideration of the matter:
(a)
that an instrument that he or she has certified to be a legislative instrument is such an instrument; or
(b)
that an instrument of a kind that he or she has certified will be a legislative instrument will be such an instrument;
then:
(c)
the requirement for registration of that instrument or of an instrument of that kind is unaffected; and
(d)
any registration of that instrument or of an instrument of that kind that is already effected remains effective.
(6)
If the Attorney-General decides, on reconsideration of the matter:
(a)
that an instrument that he or she has certified not to be a legislative instrument is not a legislative instrument; or
(b)
that an instrument of a kind that he or she has certified will not be a legislative instrument will not be such an instrument;
then:
(c)
any requirement for notification in the
Gazette
of the making of that instrument or of an instrument of that kind is unaffected; and
(d)
any notification in the
Gazette
of the making of that instrument or of an instrument of that kind that is already effected remains effective.
(7)
In any case where a court referred to in paragraph (1)(b) makes an order quashing or setting aside a decision to issue a certificate under section 10, the Attorney-General must:
(a)
as soon as practicable after that order is made, notify the person or body having authority to make the instrument, in writing, of the court
'
s decision; and
(b)
as soon as practicable after the issue of a replacement certificate
-
give a copy of the replacement certificate to the applicant for the original certificate and to the person or body having authority to make the instrument.
(8)
A replacement certificate issued under this section is a legislative instrument and, as such, is required under Part
4
to be registered.
(9)
Subsection (1) applies in respect of a decision to issue a replacement certificate in the same manner as it applies to the original decision to issue a certificate under section
10
.
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