Acts and Instruments (Framework Reform) Act 2015 (10 of 2015)

Schedule 1   Acts, legislative instruments and notifiable instruments

Part 1   Definitions and key concepts

Legislative Instruments Act 2003

12   Sections 4 to 12

Repeal the sections, substitute:

4 The Dictionary

In this Act:

amend : see subsection 5(1).

approved website : see section 15C.

authorised version , of a registered law or explanatory statement: see section 15ZA.

commencement instrument , in relation to an Act, legislative instrument or notifiable instrument, means an instrument providing solely for the commencement of:

(a) the Act or instrument; or

(b) a provision of the Act or instrument.

Example: A Proclamation providing solely for the commencement of an Act.

compilation , of an Act, legislative instrument or notifiable instrument, is a document showing the text of the Act or instrument:

(a) as amended (if at all) and in force on a day (the compilation date ) stated in the document; or

(b) as the Act or instrument would be amended and in force on a day (the compilation date ) stated in the document, by amendments that have not commenced, if the document indicates that the amendments have not commenced; or

(c) as the Act or instrument is, or would be, modified by an Act or an instrument, and in force on a day (the compilation date ) stated in the document.

Note: See Part 2 of Chapter 2 for the registration of compilations.

compilation date : see the definition of compilation in this section.

disallowable legislative instrument means a legislative instrument to which section 42 applies.

Note: Section 42 provides for the parliamentary disallowance of legislative instruments. Section 42 does not apply to some legislative instruments (see section 44).

discretionary compilation event , for an Act, legislative instrument or notifiable instrument: see section 15Q.

editorial change , in relation to an Act, legislative instrument or notifiable instrument: see section 15X.

enabling legislation , in relation to a legislative instrument or notifiable instrument, means the primary law that authorises the making of the instrument.

explanatory statement for a legislative instrument: see section 15J.

Federal Register of Legislation means the register established and maintained under section 15A.

First Parliamentary Counsel means the person appointed to the position of First Parliamentary Counsel under subsection 4(1) of the Parliamentary Counsel Act 1970.

initial explanatory statement : see section 15J.

instrument means any writing or other document, and includes an instrument in electronic form.

legislative instrument : see section 8.

Note: This term has the same meaning when used in other Acts and instruments: see the definition of legislative instrument in section 2B of the Acts Interpretation Act 1901.

making , in relation to an instrument, means the signing, sealing or other endorsement of the instrument by the person or body empowered to make it.

modify : see subsection 5(2).

notifiable instrument : see section 11.

Note: This term has the same meaning when used in other Acts and instruments: see the definition in section 2B of the Acts Interpretation Act 1901.

Office of Parliamentary Counsel means the office established by subsection 2(1) of the Parliamentary Counsel Act 1970.

power delegated by the Parliament : an instrument made under a power delegated by the Parliament includes:

(a) an instrument made under a power delegated by the Parliament to a person or body and then, under the authority of the Parliament, further delegated by that person or body to another person or body; and

(b) an instrument that may be made under a power delegated by the Parliament as well as under a power given otherwise by law.

Example: An instrument made under an Act as well as a prerogative power.

primary law means an Act or an instrument made under an Act, or a provision of an Act or an instrument made under an Act.

register means register on the Federal Register of Legislation.

registered law or explanatory statement : see section 15Z.

repeal , in relation to an instrument or a provision of an instrument, includes revoke or rescind the instrument or provision.

Note: Section 5 defines amend , for a provision of an instrument, to include the repeal of a provision of the instrument.

replacement explanatory statement : see section 15J.

required compilation event , for an Act, legislative instrument or notifiable instrument: see section 15Q.

responsible person : see section 6.

rule-maker : see section 6.

rules means rules made by the First Parliamentary Counsel under section 61A.

Note: These rules are legislative instruments. Regulations may also be made for the purposes of this Act (see section 62).

supplementary explanatory statement : see section 15J.

text includes any writing.

Note: See the definition of writing in section 2B of the Acts Interpretation Act 1901.

5 Definitions of amend and modify

(1) In this Act, amend includes:

(a) for an Act or instrument - repeal, omit, insert, substitute, renumber or relocate a provision of the Act or instrument; and

(b) for a provision of an Act or instrument - any of the following:

(i) repeal or omit the provision (or a part of it);

(ii) substitute another provision for the provision (or a part of it);

(iii) insert another provision into the provision (or a part of it);

(iv) renumber the provision (or a part of it);

(v) relocate the provision (or a part of it); and

(c) for an Act or instrument, or a provision of an Act or instrument - amend by implication; and

(d) for an Act or instrument, or a provision of an Act or instrument - change its text in any other way.

Note 1: Repeal , in relation to a provision of an instrument, includes revoke or rescind the provision (see the definition of repeal in section 4).

Note 2: For the purposes of Part 2 of Chapter 2 (registration of compilations), an Act or instrument is amended by an Act or instrument, or a provision of an Act or instrument, when the amending Act or provision commences (see subsection 15Q(3)).

(2) In this Act, modify an Act or instrument means modify the operation of the Act or instrument without amending its text.

6 Definitions of rule-maker and responsible person

Rule-makers

(1) In this Act, rule-maker , for an instrument, means:

(a) for an instrument made by the Governor-General that is made under enabling legislation (whether or not it may also be made under any other power) - the Minister currently responsible for administering the provision of the enabling legislation under which the instrument is made; or

(b) for an instrument made by the Governor-General, in any other case - the Prime Minister, or a Minister prescribed by regulation for the purposes of this paragraph; or

(c) for an instrument made by a person other than the Governor-General - a person currently authorised to make the instrument.

Responsible persons

(2) In this Act, responsible person means:

(a) for an Act or a provision of an Act - the Minister currently responsible for administering the Act or provision; or

(b) for an instrument - the rule-maker for the instrument.

(3) If more than one Minister is currently responsible for administering an Act, or a provision of an Act:

(a) each of those Ministers is a responsible person for the Act or provision (as the case may be); and

(b) the performance of a function or duty under this Act (in relation to the Act or provision administered) by any of the Ministers discharges the function or duty.

Part 2 - Key concepts for legislative instruments and notifiable instruments

7 Simplified outline of this Part

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.

8 Definition of legislative instrument

(1) A legislative instrument is an instrument to which subsection (2), (3), (4) or (5) applies.

Note: Instruments that can be legislative instruments may be described by their enabling legislation in different ways, for example as regulations, rules, ordinances or determinations.

Primary law provides for something to be done by legislative instrument

(2) If a primary law gives power to do something by legislative instrument, then:

(a) if the thing is done, it must be done by instrument; and

(b) that instrument is a legislative instrument .

Example 1: A primary law provides that “The Minister may, by legislative instrument, determine licence conditions for the purposes of this section.”.

Example 2: A primary law provides as follows:

“(1) The Chief Executive may, by instrument, determine licence conditions.

(2) The Chief Executive may, by instrument, exempt a person from the requirement under this Act to hold a licence.

(3) An instrument made by the Chief Executive under subsection (1) or (2) is a legislative instrument.”.

Instruments registered on the Federal Register of Legislation

(3) An instrument made under a power delegated by the Parliament is a legislative instrument if it is registered as a legislative instrument.

Note: An instrument made under a power delegated by the Parliament may be a legislative instrument because it is registered as a legislative instrument, whether or not it is a legislative instrument because of another provision of this section.

Instruments that determine or alter the law etc.

(4) An instrument is a legislative instrument if:

(a) the instrument is made under a power delegated by the Parliament; and

(b) any provision of the instrument:

(i) determines the law or alters the content of the law, rather than determining particular cases or particular circumstances in which the law, as set out in an Act or another legislative instrument or provision, is to apply, or is not to apply; and

(ii) has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.

Instruments declared to be legislative instruments

(5) An instrument is a legislative instrument if it is declared by section 10 or 57A to be a legislative instrument.

Note: Section 10 declares regulations and some other instruments to be legislative instruments. Section 57A declares some instruments to be legislative instruments that were made under a power delegated by the Parliament before 1 January 2005, when the substantive provisions of this Act commenced.

Instruments that are not legislative instruments

(6) Despite subsections (4) and (5), an instrument is not a legislative instrument if it is:

(a) declared by an Act not to be a legislative instrument; or

(b) prescribed by regulation for the purposes of this paragraph.

(7) However, subsection (6) does not apply to an instrument that is a legislative instrument under subsection (3) by registration.

(8) Despite anything else in this section, the following are not legislative instruments, and cannot become legislative instruments under subsection (3) (by being registered as legislative instruments):

(a) an instrument that is a notifiable instrument because of subsection 11(1) (primary law gives power to do something by notifiable instrument);

(b) a commencement instrument;

(c) a compilation of a legislative instrument or notifiable instrument;

(d) rules of court, or a compilation of rules of court, for the High Court, the Federal Court of Australia, the Family Court of Australia or the Federal Circuit Court of Australia;

(e) an explanatory statement for a legislative instrument, or rules of court mentioned in paragraph (d).

Note: Rules of court are, however, registered under this Act, and are otherwise treated as if they were legislative instruments by their enabling legislation.

9 Inference of legislative character

No implication of legislative character (or otherwise)

(1) The fact that an instrument is a legislative instrument because of subsection 8(2), (3) or (5) does not imply that the instrument is, or must be, of legislative character (within the ordinary meaning of that term).

(2) The fact that an instrument is not a legislative instrument because of subsection 8(6) does not imply that the instrument is not, or must not be, of legislative character (within the ordinary meaning of that term).

No inference for other instruments

(3) In determining whether an instrument made under a provision of a primary law is a legislative instrument under subsection 8(4), no inference may be drawn from the fact that an instrument made under another provision of that primary law, or any other primary law, is a legislative instrument, or is not a legislative instrument.

Example: In determining whether a Ministerial direction under a provision of a primary law is a legislative instrument, no inference may be drawn from the fact that a Ministerial direction under another provision of the primary law is described as a legislative instrument.

10 Instruments declared to be legislative instruments

(1) For the purposes of subsection 8(5), each of the following is a legislative instrument:

(a) a regulation or Proclamation (other than a Proclamation that is a commencement instrument) made under a power delegated by the Parliament;

(b) a Territory Ordinance covered by subsection (2), or a regulation, rule or by-law under such an Ordinance;

(c) an instrument prescribed by regulation for the purposes of this paragraph;

(d) an instrument that includes a provision that amends or repeals another legislative instrument.

Note: Commencement instruments, which may be Proclamations, are notifiable instruments: see section 11.

(2) The following Territory Ordinances are covered by this subsection:

(a) an Ordinance made under a power delegated by the Parliament in an Act providing for the government of a non-self-governing Territory;

(b) an Ordinance made under subsection 12(1) of the Seat of Government (Administration) Act 1910 that has not become an enactment (as defined in the Australian Capital Territory (Self-Government) Act 1988);

(c) an Ordinance made under section 27 of the Norfolk Island Act 1979.

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.

12 Commencement of legislative instruments and notifiable instruments

When do legislative instruments and notifiable instruments commence?

(1) A legislative instrument or a notifiable instrument commences:

(a) at the start of the day after the day the instrument is registered; or

(b) so far as the instrument provides otherwise - in accordance with such provision.

Note: The instrument may provide for its commencement by enabling a commencement instrument to be made: see subsection (5).

Retrospective application

(2) A provision of a legislative instrument or notifiable instrument does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) if the provision commences before the day the instrument is registered, to the extent that as a result:

(a) the person’s rights as at that day would be affected so as to disadvantage the person; or

(b) liabilities would be imposed on the person in respect of anything done or omitted to be done before that day.

(3) However, subject to subsection (2), a legislative instrument or notifiable instrument may provide that a provision of the instrument commences before the day the instrument is registered.

(4) The effect of subsection (2) or (3) in relation to an instrument is subject to any contrary provision in an Act.

Commencement instruments

(5) Without limiting paragraph (1)(b), for the purposes of that paragraph, a legislative instrument or notifiable instrument may authorise the making of a commencement instrument in relation to the legislative instrument or notifiable instrument.