Legislation Act 2003

Chapter 1 - Introduction

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Part 2 - Key concepts for legislative instruments and notifiable instruments

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SECTION 7 Simplified outline of this Part

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What are legislative instruments?

Generally, the following are legislative instruments:

• an instrument described or declared by a law (including this Act) to be a legislative instrument;

• an instrument registered on the Federal Register of Legislation as a legislative instrument;

• an instrument made under a power delegated by the Parliament that determines the law or alters its content.

However, an instrument is not a legislative instrument if an Act (or a regulation under this Act) so provides.

What are notifiable instruments?

Generally, the following are notifiable instruments:

• an instrument described or declared by a law (including this Act or a regulation under this Act) to be a notifiable instrument;

• a commencement instrument;

• an instrument (other than a legislative instrument) that is registered on the Federal Register of Legislation as a notifiable instrument.

Generally, unlike legislative instruments, notifiable instruments are not subject to parliamentary scrutiny, nor are they subject to automatic repeal 10 years after registration.

Other key concepts

A legislative instrument or notifiable instrument commences on the day after the instrument is registered, or on another day provided by the instrument. Generally, the instrument does not apply retrospectively if that would adversely affect rights or impose liabilities.

Generally, the same rules apply to the interpretation of legislative instruments and notifiable instruments as apply to the interpretation of Acts. Some special rules also apply to the construction of instruments.

There are restrictions on the extent to which legislative instruments or notifiable instruments can incorporate matters by reference to external documents.

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History

S 7 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 7 formerly read:

SECTION 7 Instruments declared not to be legislative instruments
(1)
An instrument is not a legislative instrument for the purposes of this Act if:

(a) it is included in the table below; or

(b) it is made under an Act or a disallowable legislative instrument:

(i) that first authorised the making of the first-mentioned instrument on or after the commencing day; and

(ii) that declared the first-mentioned instrument not to be a legislative instrument for the purposes of this Act.

Table

Table

Instruments that are not legislative instruments for the purposes of the Act

Item Particulars of instrument

1 Instruments (other than regulations and other instruments that, immediately before the commencing day, are disallowable) made under the Air Navigation Act 1920 , or under the regulations made under that Act, relating to aviation security

2 Commissioner's orders under section 38 of the Australian Federal Police Act 1979

3 General Orders made under section 12 of the Australian Protective Service Act 1987

4 Guidelines under section 8A of the Australian Security Intelligence Organisation Act 1979

5 Ministerial directions to:

(a) a Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013 ; or

(b) a corporate Commonwealth entity within the meaning of that Act;

other than any such direction:

(c) (Repealed by No 20 of 2008)

(d) that is required to be laid before the Houses of the Parliament under the legislation that authorises the giving of the directions; or

(e) the full text of which is required to be published in the Gazette or elsewhere under that legislation

6 Instruments (other than regulations and other instruments that, immediately before the commencing day, are disallowable) that are made under the Corporations Act 2001 and that, in relation to:

(a) a specified person (other than a person specified by membership of a class) or to persons associated with that specified person; or

(b) a specified facility (other than a facility specified by membership of a class); or

(c) a specified financial product (other than a product specified by membership of a class);

have the effect of:

(d) exempting the person, facility or product from the rules under the Act; or

(e) modifying the operation of the rules under the Act in their application to the person, facility or product

7 Determinations made under section 273 of the Customs Act 1901

8 Instructions under section 9A of the Defence Act 1903

9 Determinations made under section 58B or 58H of the Defence Act 1903

10 Legal Services Directions issued under paragraph 55ZF(1)(b) of the Judiciary Act 1903

11 Schedules to the Murray-Darling Basin Agreement made under clause 50 or 134 of that Agreement (being the Agreement approved under section 5 of the Murray-Darling Basin Act 1993 )

12 Designations, or revocations of designations, made under section 11 of the Payment Systems (Regulation) Act 1998

13 Instruments made under section 72 of the Public Service Act 1999

14 Laws of a self-governing Territory, other than:

(a) Ordinances made under subsection 12(1) of the Seat of Government (Administration) Act 1910 that have not become enactments (as defined in the Australian Capital Territory (Self-Government) Act 1988 ); or

(b) Ordinances made under section 27 of the Norfolk Island Act 1979 ; or

(c) rules, regulations and by-laws made under Ordinances described in paragraph (a) or (b)

15 Instruments (other than regulations and other instruments that, immediately before the commencing day, are disallowable) that are made under the Superannuation Industry (Supervision) Act 1993 and that, in relation to:

(a) a specified person (other than a person specified by membership of a class) or to persons associated with that specified person; or

(b) a specified financial product (other than a product specified by membership of a class);

have the effect of:

(c) exempting the person or product from the rules under the Act; or

(d) modifying the operation of the rules under the Act in their application to the person or product

16 Private rulings given under the Taxation Administration Act 1953

17 Public rulings made under the Taxation Administration Act 1953

18 Fair work instruments (within the meaning of the Fair Work Act 2009 )

18A Transitional instruments (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 )

19 Decisions and orders of the Fair Work Commission

19A Orders made by the Australian Industrial Relations Commission in proceedings under the Workplace Relations Act 1996 or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009

19B Decisions of the Australian Fair Pay Commission

20 Instruments that relate to terms and conditions of employment of persons, or to the terms and conditions of service of persons, as members or special members of the Australian Federal Police, other than:

(a) regulations; or

(b) instruments that are declared to be disallowable instruments under the enabling legislation; or

(c) instruments that are made under section 23 or subsection 24(3) of the Public Service Act 1999 ; or

(d) instruments that are made under section 23 or subsection 24(3) of the Parliamentary Service Act 1999 ; or

(e) instruments that are required to be laid before the Parliament under subsection 7(7) of the Remuneration Tribunal Act 1973

21 Instruments that comprise, in their entirety, directions to delegates

22 Laws of a State or self-governing Territory that apply in a non-self-governing Territory and instruments made under those laws

23 Ordinances of the former Colony of Singapore that apply in a non-self-governing Territory and instruments made under those Ordinances

24 Instruments that are prescribed by the regulations for the purposes of this table

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History

S 7(1) amended by No 62 of 2014, s 3 and Sch 9 items 214 and 215, by substituting " the Public Governance, Performance and Accountability Act 2013 " for " section 34 of the Commonwealth Authorities and Companies Act 1997 " in para (a) of table item 5 and " corporate Commonwealth entity within the meaning " for " Commonwealth authority within the meaning of section 7 " in para (b) of table item 5, effective 1 July 2014.

S 7(1) amended by No 174 of 2012, s 3 and Sch 9 item 1281, by substituting " the Fair Work Commission " for " Fair Work Australia " in table item 19, effective 1 January 2013.

S 7(1) amended by No 54 of 2009, s 3 and Sch 5 item 42, by substituting table items 18, 18A, 19, 19A and 19B for table items 18, 18A and 19, effective 1 July 2009. Table items 18, 18A and 19 formerly read:

18 ... Awards and agreements under the Workplace Relations Act 1996

18A ... Decisions of the Australian Fair Pay Commission

19 ... Orders made by the Australian Industrial Relations Commission in proceedings under the Workplace Relations Act 1996

S 7 amended by No 20 of 2008, s 3 and Sch 2 item 4, by repealing para (c) in column 2 of table item 5, effective 1 July 2008. Para(c) in column 2 of table item 5 formerly read:

(c) ... that comprises a notification under section 28 or 43 of that Act; or

S 7 amended by SLI No 50 of 2006, reg 3 and Sch 39 item 1, by inserting table item 18A, effective 27 March 2006

(2)
The inclusion of an instrument in the table in subsection (1) does not imply that an instrument of that kind would, if it were not so included, be a legislative instrument under subsection (1).

(3)
If:

(a) the making of an instrument is authorised before the commencing day; and

(b) the instrument is of a kind included in the table in subsection (1) or is not otherwise a legislative instrument; and

(c) the instrument is required:

(i) to have its text, or particulars of its making, published in the Gazette ; or

(ii) to be laid before either or both of the Houses of the Parliament without provision for its disallowance;

that requirement is unaffected by this Act whether the instrument is made before, on or after the commencing day.

**Table**
Instruments that are not legislative instruments for the purposes of the Act
Item	Particulars of instrument
1	Instruments (other than regulations and other instruments that, immediately before the commencing day, are disallowable) made under the Air Navigation Act 1920 , or under the regulations made under that Act, relating to aviation security
2	Commissioner's orders under section 38 of the Australian Federal Police Act 1979
3	General Orders made under section 12 of the Australian Protective Service Act 1987
4	Guidelines under section 8A of the Australian Security Intelligence Organisation Act 1979
5	Ministerial directions to:
	(a)	a Commonwealth company within the meaning of the Public Governance, Performance and Accountability Act 2013 ; or
	(b)	a corporate Commonwealth entity within the meaning of that Act;
	other than any such direction:
	(c)	(Repealed by No 20 of 2008)
	(d)	that is required to be laid before the Houses of the Parliament under the legislation that authorises the giving of the directions; or
	(e)	the full text of which is required to be published in the Gazette or elsewhere under that legislation
6	Instruments (other than regulations and other instruments that, immediately before the commencing day, are disallowable) that are made under the Corporations Act 2001 and that, in relation to:
	(a)	a specified person (other than a person specified by membership of a class) or to persons associated with that specified person; or
	(b)	a specified facility (other than a facility specified by membership of a class); or
	(c)	a specified financial product (other than a product specified by membership of a class);
	have the effect of:
	(d)	exempting the person, facility or product from the rules under the Act; or
	(e)	modifying the operation of the rules under the Act in their application to the person, facility or product
7	Determinations made under section 273 of the Customs Act 1901
8	Instructions under section 9A of the Defence Act 1903
9	Determinations made under section 58B or 58H of the Defence Act 1903
10	Legal Services Directions issued under paragraph 55ZF(1)(b) of the Judiciary Act 1903
11	Schedules to the Murray-Darling Basin Agreement made under clause 50 or 134 of that Agreement (being the Agreement approved under section 5 of the Murray-Darling Basin Act 1993 )
12	Designations, or revocations of designations, made under section 11 of the Payment Systems (Regulation) Act 1998
13	Instruments made under section 72 of the Public Service Act 1999
14	Laws of a self-governing Territory, other than:
	(a)	Ordinances made under subsection 12(1) of the Seat of Government (Administration) Act 1910 that have not become enactments (as defined in the Australian Capital Territory (Self-Government) Act 1988 ); or
	(b)	Ordinances made under section 27 of the Norfolk Island Act 1979 ; or
	(c)	rules, regulations and by-laws made under Ordinances described in paragraph (a) or (b)
15	Instruments (other than regulations and other instruments that, immediately before the commencing day, are disallowable) that are made under the Superannuation Industry (Supervision) Act 1993 and that, in relation to:
	(a)	a specified person (other than a person specified by membership of a class) or to persons associated with that specified person; or
	(b)	a specified financial product (other than a product specified by membership of a class);
	have the effect of:
	(c)	exempting the person or product from the rules under the Act; or
	(d)	modifying the operation of the rules under the Act in their application to the person or product
16	Private rulings given under the Taxation Administration Act 1953
17	Public rulings made under the Taxation Administration Act 1953
18	Fair work instruments (within the meaning of the Fair Work Act 2009 )
18A	Transitional instruments (within the meaning of the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 )
19	Decisions and orders of the Fair Work Commission
19A	Orders made by the Australian Industrial Relations Commission in proceedings under the Workplace Relations Act 1996 or the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009
19B	Decisions of the Australian Fair Pay Commission
20	Instruments that relate to terms and conditions of employment of persons, or to the terms and conditions of service of persons, as members or special members of the Australian Federal Police, other than:
	(a)	regulations; or
	(b)	instruments that are declared to be disallowable instruments under the enabling legislation; or
	(c)	instruments that are made under section 23 or subsection 24(3) of the Public Service Act 1999 ; or
	(d)	instruments that are made under section 23 or subsection 24(3) of the Parliamentary Service Act 1999 ; or
	(e)	instruments that are required to be laid before the Parliament under subsection 7(7) of the Remuneration Tribunal Act 1973
21	Instruments that comprise, in their entirety, directions to delegates
22	Laws of a State or self-governing Territory that apply in a non-self-governing Territory and instruments made under those laws
23	Ordinances of the former Colony of Singapore that apply in a non-self-governing Territory and instruments made under those Ordinances
24	Instruments that are prescribed by the regulations for the purposes of this table

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