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Attorney-General's Department --- "The Legislative Instruments Act 2003: Well Worth the Wait Attorney-General's Department" [2004] ALRCRefJl 14; (2004) 84 Australian Law Reform Commission Reform Journal 59


Reform Issue 84 Autumn 2004

This article appeared on pages 59 – 61 of the original journal.

The Legislative Instruments Act 2003: Well worth the wait

In its 1992 report Rule Making by Commonwealth Agencies, the Administrative Review Council noted that the framework of principles and procedures for making delegated legislative instruments at the Commonwealth level was patchy, dated and obscure.

The Council proposed a Legislative Instruments Act to govern the making, publication and parliamentary scrutiny of all delegated instruments that are legislative in character, on the basis that the class of legislative instrument should no longer be the controlling factor over the principles and procedures applied.

In 1993, the House of Representatives Standing Committee on Legal and Constitutional Affairs’ report, Clearer Commonwealth Law, endorsed and developed a number of the Council’s recommendations. The Committee was particularly concerned about how to make laws easier to understand and it emphasised better consultation as a key mechanism to ensure this.

The first Legislative Instruments Bill was introduced into the Parliament in 1994, but lapsed when Parliament was prorogued prior to the 1996 election. A further Bill was introduced in 1996 but was not debated until late 1997. Senate amendments made to that Bill were rejected by the House of Representatives. The Bill returned to the Senate but agreement on the amendments could not be achieved. A Bill was reintroduced in the same form in 1998 and the Senate again amended it. While this raised the interesting prospect of the Bill being a double dissolution trigger, the House had not considered the Senate’s amendments when the Parliament was again prorogued.

After substantial revisions, the Legislative Instruments Bill 2003 was introduced into the Parliament on 26 June 2003 and passed on 2 December 2003. It received Royal Assent on 17 December 2003.

While there are two possible commencement dates for the Act, it is likely that it will commence on the latter date, namely, 1 January 2005. This is because, before the substantive provisions of the Act commence, the Federal Register of Legislative Instruments has to be developed, agencies must be trained in the requirements of the Act, and any necessary regulations will need to be made.

The Federal Register of Legislative Instruments

The Legislative Instruments Act establishes the Federal Register of Legislative Instruments, comprising a database of legislative instruments, explanatory statements and compilations. The Register is currently being developed by the Office of Legislative Drafting in the Attorney-General’s Department and will be publicly accessible via the Internet.

Community and business users will benefit in having full access to all Commonwealth legislative instruments in an authoritative form. Of particular value will be access to compilations of legislative instruments. These will incorporate all the amendments to a particular instrument.

The Act also deals with the legal status of the Register and extracts from it. For example, the Register is, for all purposes, to be taken to be a complete and accurate record of all legislative instruments it includes. Compilations will be taken to be complete and accurate, unless the contrary is proven.

Legislative instruments made on or after the commencement of the Act must be registered or they will not be enforceable. Legislative instruments made before the commencement day must also be registered or they will be treated as having been repealed. Generally, registration is required within 12 months (for those that were made within five years before commencement of the Act) or within three years (for instruments made before then).

Consultation on legislative instruments

The Act encourages those responsible for making legislative instruments (called “rule makers” in the Act) to undertake appropriate consultation before legislative instruments are made.

It is not compulsory to consult and, in some cases, consultation may be unnecessary or inappropriate. The Act gives, as examples of this, where the instrument is of a minor or machinery nature, where it is required urgently or as a matter of national security, and where it relates to employment.

The explanatory statement to each instrument needs to include a description of the consultation undertaken or an explanation as to why no consultation has occurred. The explanatory statement is subject to Parliamentary scrutiny (see below) and is included in the Register, so the description of the consultation undertaken, or reason why no consultation has occurred, will be publicly available information.

The Act also obliges the Secretary of the Attorney-General’s Department to cause steps to be taken to promote the quality of legislative instruments.

Parliamentary scrutiny and disallowance

A comprehensive regime is provided for Parliamentary scrutiny and disallowance of registered instruments. This regime replaces the tabling and disallowance regime currently provided under the Acts Interpretation Act 1901. Consequential amendments to replace and amend the regime in the Acts Interpretation Act are made by the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003.

Under the Legislative Instruments Act, all registered legislative instruments must be tabled in Parliament within six sitting days after registration or they will cease to have effect. Each instrument is then subject to a disallowance regime unless specifically exempted from that regime. This reverses the current default position, where an instrument is not a disallowable instrument unless the enabling legislation says so.

As at present, the disallowance process involves the giving of a notice of motion of disallowance in either House of the Parliament within 15 sitting days of the instrument being laid before the Parliament. If that notice is not withdrawn or otherwise disposed of at the end of the 15 sitting days, the instrument (or provision in the instrument which is specified in the motion) is disallowed and ceases to have effect.

Sunsetting provisions

The Act also provides for the sunsetting of most legislative instruments after a period of approximately 10 years after they commence or are required to be registered. This ensures that legislative instruments remain up to date.

The Attorney-General must table a list of the instruments or provisions of instruments due to sunset within 18 months before the sunsetting day and either House may then pass a resolution indicating which instruments or provisions it considers should remain in force. The selected instruments and provisions then continue in force as if they were remade on the date they would otherwise have ceased. The Attorney-General may also issue a certificate which delays sunsetting for a limited period and such a certificate must be laid before the Parliament within six sitting days after issue.

What is a legislative instrument?

The Act defines a legislative instrument as an instrument in writing that is of a legislative character, and that is or was made in the exercise of a power delegated by the Parliament. An instrument is “taken to be of a legislative character” if:

(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and

(b) it 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.

The Act also provides that some instruments are automatically treated as legislative instruments. These include regulations, statutory rules, proclamations and any instruments that are currently declared to be disallowable for the purposes of s 46A of the Acts Interpretation Act 1901.

In most cases, resolving whether an instrument is a legislative instrument will be easy. A rule maker who is unsure about whether an instrument is a legislative instrument can seek legal advice to help to decide whether the instrument is legislative. Legal advice on such questions can be obtained from the Office of Legislative Drafting in the Attorney-General’s Department or from other legal advisers. If, after obtaining that advice, the matter is still uncertain, the rule maker may choose to resolve any doubt:

• by seeking to register the instrument, because the Act provides that an instrument that is registered is taken to be a legislative instrument despite anything else the Act says; or

• by seeking an amendment to the Act which empowers the making of the instrument, or through the making of a regulation under the Legislative Instruments Act, to expressly exclude the instrument from the operation of the Legislative Instruments Act or from the operation of a particular part of the Act.

If neither of these options is appropriate, the agency can seek a certificate from the Attorney-General that an instrument is, or is not, a legislative instrument. The Attorney-General’s certificate is judicially reviewable.

Exemptions from the Act

The Legislative Instruments Act provides three types of exemptions.

First, instruments that are declared not to be legislative instruments are completely exempted from the Act’s operation. There is a list of these instruments in s 7 of the Act. The instruments in that list were included either because they are not legislative instruments but there was some doubt, for example private and public rulings under the Taxation Administration Act 1953; or because they are legislative instruments but their exclusion is required for policy reasons, for example instruments (other than regulations and other disallowable instruments) made under the Air Navigation Act 1920, or under the regulations made under that Act, relating to aviation security. Other instruments may be exempted in future by regulations made under s 7.

Second, exemptions from the disallowance regime. There is a list of these in s 44 of the Act. The instruments in this list were included for a variety of reasons including that the instrument already provided an alternative role for the Parliament such as that in relation to instruments under s 128 of the Broadcasting Service Act 1992 where certain broadcasting standards can be directly amended by a House of Parliament; instruments relating to employment; instruments which are intended to be under Executive control such as Ministerial directions to any person or body; and instruments where disallowance might create commercial uncertainty. Other instruments may be exempted in future by regulations made under s 44.

Third, exemptions from the sunsetting regime. There is a list of these in s 54 of the Act. The instruments in this list were included for a variety of reasons including that the rule maker has been given a statutory role independent of government, for example statutes made under the Australian National University Act 1991 or rules or orders made under those statutes. Other exemptions cover instruments which were designed to be enduring or where commercial certainty would be undermined by sunsetting; instruments which operate in more than one jurisdiction or which are part of a scheme involving legislation in two or more jurisdictions, for example declarations made by Ministers under s 32 of the Mutual Recognition Act 1992. Other instruments may be exempted in future by regulations made under s 54.

This article was contributed by the Civil Justice Division of the Australian Government's Attorney-General's Department.


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