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2004-2005
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
SENATE
ACTS INTERPRETATION AMENDMENT
(LEGISLATIVE INSTRUMENTS) BILL 2005
EXPLANATORY MEMORANDUM
(Circulated by the authority of the Attorney-General,
the Honourable Philip Ruddock MP)
ACTS INTERPRETATION AMENDMENT (LEGISLATIVE INSTRUMENTS)
BILL 2005
General Outline
The main purpose of this Bill is to insert a new interpretive provision, section 15AE, into the Acts
Interpretation Act 1901. This provision explains what is meant by the expression `legislative
instrument'. It will make clear that wherever the term `legislative instrument' appears in legislation,
it has a particular meaning, that is, that instruments that are described in legislation as legislative
instruments must be in writing and are legislative instruments for the purposes of the Legislative
Instruments Act 2003.
Including the new provision in the Acts Interpretation Act will preclude the need to define the term
`legislative instrument' every time it is used in legislation. The amendment was proposed, and is
supported, by the Office of Parliamentary Counsel.
The Bill also contains a small number of consequential amendments to the Acts Interpretation Act.
None of the amendments makes any change to the substance of the law.
Financial Impact
The Bill will have no financial impact.
Notes on clauses
Clause 1--Short title
1. Clause 1 provides for the Act to be cited as the Acts Interpretation Amendment (Legislative
Instruments) Act 2005.
Clause 2--Commencement
2. Clause 2 provides for the commencement of the Act. Subclause 2(1) provides that each
provision of the Act specified in column 1 of the table commences, or is taken to have commenced,
as specified in column 2 of the table.
3. There are three items in the table in subclause 2(1).
(a) Item 1 explains that the short title, the commencement provisions and section 3, which
provides for the Schedule to the Act, will all commence on Royal Assent.
(b) Item 2 explains that Schedule 1, item 1, commences immediately after the commencement of
the Legislative Instruments Act 2003 which, as explained in column 3 of the table, commenced
on 1 January 2005.
(c) Item 3 explains that Schedule 1, items 2 to 5, commence immediately after the
commencement of the Legislative Instruments (Transitional Provisions and Consequential
Amendments) Act 2003 which, as explained in column 3 of the table, commenced on 1 January
2005. Items 2 to 5 of the Schedule amend provisions in the Acts Interpretation Act as
amended by the Legislative Instruments (Transitional Provisions and Consequential
Amendments) Act. Item 3 of subclause 2(1) is a separate item from item 2 of subclause 2(1)
to reflect the order of commencement of the Legislative Instruments Act and the Legislative
Instruments (Transitional Provisions and Consequential Amendments) Act. Both Acts
commenced on the same day but the commencement provision in the Legislative Instruments
(Transitional Provisions and Consequential Amendments) Act provided that it commenced
immediately after the Legislative Instruments Act.
Clause 3--Schedule
2. Clause 3 provides for the Schedule to the Act. It provides that the provisions of the Acts
Interpretation Act 1901 specified in the Schedule are amended as set out in that Schedule. While
only one Act is amended by the Schedule, clause 3 appears to indicate that more than one Act is
amended. This is because clause 3 is a standard covering clause for Schedules adopting the Office of
Parliamentary Counsel's drafting practice whereby, to avoid error, the clause is never modified for a
particular case.
3. The amendment made by item 1 of the Schedule inserts a new section into the Acts
Interpretation Act. The amendments made by items 2 to 5 of the Schedule make consequential
drafting changes in four provisions of the Acts Interpretation Act.
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Schedule 1--Amendment of Acts Interpretation Act 1901
Item 1
4. Item 1 inserts a new provision after section 15AD of the Acts Interpretation Act 1901 in
Part IV of the Act which is headed General Provisions.
5. The new provision to be inserted as new section 15AE explains what is meant when a
provision of a law provides for the making of an instrument which is described as being a legislative
instrument and what is meant when a provision of a law provides for the making of an instrument
which is described as not being a legislative instrument. New section 15AE was requested by the
Office of Parliamentary Counsel and will make clear that wherever the term `legislative instrument'
appears in legislation, it has a particular meaning.
6. Including the new provision in the Acts Interpretation Act will preclude the need to define the
term every time it is used in legislation.
7. Subclause 15AE(1) provides that instruments that are described as legislative instruments:
(a) must be in writing, and
(b) are legislative instruments for the purposes of the Legislative Instruments Act 2003.
8. The requirement that a legislative instrument must be in writing is not a requirement to be
imposed by the new section but merely reflects the definition of `legislative instrument' in the
Legislative Instruments Act. Section 5 of that Act provides:
...a legislative instrument is an instrument in writing:
(a) that is of a legislative character; and
(b) that is or was made in the exercise of a power delegated by the Parliament.
9. The requirement in subclause 15AE(1) that a legislative instrument is an instrument in writing
also does not affect the ordinary operation of subsection 33(3) of the Acts Interpretation Act, which
provides that
Where an Act confers a power to make, grant or issue any instrument (including rules,
regulations or by-laws) the power shall, unless the contrary intention appears, be construed as
including a power exercisable in the like manner and subject to the like conditions (if any) to
repeal, rescind, revoke, amend, or vary any such instrument.
10. Subclause 15AE(1) does not have a substantive effect, as it is intended to be a definitional
section and thus a shortening device. In new legislation or when amendments are made to existing
legislation, the effect of subclause 15AE will be that an instrument may be described as a `legislative
instrument' to bring it within the ambit of the Legislative Instruments Act without the need for a
more lengthy explanatory provision such as has been in use since the enactment of the Legislative
Instruments Act.
11. The effect of the new subclause 15AE(1) on the drafting of new legislation will be to enable
more simplified drafting of provisions dealing with instruments, so that provision x in a Bill may say,
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for example, `the Minister may, by legislative instrument, determine' instead of having a separate
provision in that Bill which explains that `an instrument made under provision x is a legislative
instrument for the purposes of the Legislative Instruments Act 2003.'
12. Thus, subclause 15AE(1) is merely a more detailed description of what is meant by the
expression `legislative instrument' where that expression is chosen for use in other legislation.
Subclause 15AE(2) is a clarification provision to ensure that describing something as a legislative
instrument does not carry any implication that it is of a legislative character (within the ordinary
meaning of that term).
13. Subclause 15AE(3) deals with the opposite situation to that in subclause 15AE(1), namely
that, where legislation provides that an instrument is not a legislative instrument, this means that the
instrument will not be an instrument for the purposes of the Legislative Instruments Act.
14. Current drafting practice is to explain in a provision creating a power to make an instrument
whether the instrument is or is not a legislative instrument for the purposes of the Legislative
Instruments Act, unless there is an exemption for that instrument (or instruments of that type) in the
Legislative Instruments Act or in the regulations made under the Legislative Instruments Act. Where
there is an existing exemption, it is considered unnecessary to make a statement in the provision
concerned that the instrument is not a legislative instrument. Current practice is that, where a
statement is made that an instrument is not a legislative instrument, the Explanatory Memorandum
dealing with that provision will explain whether that statement constitutes an exemption from the
Legislative Instruments Act and the reasons for this or whether the statement is merely a clarification
for users because the instrument is not a legislative instrument within the meaning of the definition in
section 5 of the Legislative Instruments Act.
15. Similarly to subclause 15AE(2), subclause 15AE(4) is intended to ensure there are no wider
implications drawn from the definition provision. Subclause 15AE(4) explains that the fact that an
instrument is described as not being a legislative instrument does not carry any implication that it is
not, or must not be, of a legislative character (within the ordinary meaning of that term).
16. Subclause 15AE(5) is also intended to make clear that the scope of the definitional provision is
limited. It explains that in deciding whether an instrument is a legislative instrument, no implications
should be drawn from the fact that other instruments in the same legislation may be described as
being or not being legislative instruments. Gradually, as Commonwealth legislation comes to be
amended or replaced, it is expected that references to instruments will be changed to reflect whether
they are or are not legislative instruments. Until then, where it is not clear in legislation whether an
instrument is or is not a legislative instrument, that question will need to be resolved by deciding
whether the instrument is covered by the definition in section 5 of the Legislative Instruments Act
and not exempted by another provision of that Act or regulations under the Act.
Item 2
2. Item 2 amends subsection 46(1) of the Acts Interpretation Act to make a drafting change by
deleting the words `within the meaning of' and substituting the words `for the purposes of' in
consequence of the insertion of new section 15AE. The effect of the provision is to make the
provision consistent with the terminology used in proposed section 15AE, to be inserted by item 1.
3. Section 46 of the Acts Interpretation Act was a new provision inserted by the Legislative
Instruments (Transitional Provisions and Consequential Amendments) Act to deal with the
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construction of instruments that are not legislative instruments and which are not rules of court. The
equivalent section in the Legislative Instruments Act is section 13.
4. Subsection 46(1) provides that the Acts Interpretation Act will apply to a non-legislative
instrument as if it were an Act and as if each provision of the instrument were a section of an Act;
that expressions in the instrument have the same meaning as within the enabling legislation; and
instruments are not to exceed the power of the authority.
Item 3
5. Item 3 amends subsection 46AA(1) of the Acts Interpretation Act to make a drafting change
by deleting the words `within the meaning of' (wherever occurring) and substituting the words `for
the purposes of' in consequence of the insertion of new section 15AE. The effect of the provision is
to make the provision consistent with the terminology used in proposed section 15AE, to be inserted
by item 1.
6. Section 46AA of the Acts Interpretation Act was a new provision inserted by the Legislative
Instruments (Transitional Provisions and Consequential Amendments) Act to deal with the
construction of instruments that are not legislative instruments or rules of court. Section 46AA
enables non-legislative instruments to make provision for matters by applying, adopting or
incorporating (with or without modification) the provisions of any Commonwealth Act, or
disallowable legislative instrument as in force at the time of incorporation or from time to time. The
section also enables non-legislative instruments to make provision for matters by applying, adopting
or incorporating (with or without modification) the provisions of any other instrument or writing
which is in force at the time of incorporation. Section 46AA has a parallel, in relation to legislative
instruments, in section 14 of the Legislative Instruments Act.
Item 4
7. Item 4 amends paragraph 46B(1)(a) of the Acts Interpretation Act to make a drafting change
by deleting the words `within the meaning of' and substituting the words `for the purposes of' in
consequence of the insertion of new section 15AE. The effect of the provision is to make the
provision consistent with the terminology used in proposed section 15AE, to be inserted by item 1.
8. Section 46B of the Acts Interpretation Act was a new provision inserted by the Legislative
Instruments (Transitional Provisions and Consequential Amendments) Act to deal with the
construction of instruments that are not legislative instruments or rules of court. Section 46B deals
with commencement and disallowance of non-legislative instruments. The equivalent provision for
legislative instruments is section 12 of the Legislative Instruments Act.
9. Paragraph 46B(1) defines the instruments to which the section applies to include instruments
that are not legislative instruments for the purposes of the Legislative Instruments Act or rules of
court.
Item 5
10. Item 5 amends subsection 46B(2) of the Acts Interpretation Act to make a drafting change by
deleting the words `within the meaning of' and substituting the words `for the purposes of' in
consequence of the insertion of new section 15AE. The effect of the provision is to make the
provision consistent with the terminology used in proposed section 15AE, to be inserted by item 1.
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11. Section 46B of the Acts Interpretation Act was a new provision inserted by the Legislative
Instruments (Transitional Provisions and Consequential Amendments) Act to deal with the
construction of instruments that are not legislative instruments or rules of court. Section 46B deals
with commencement and disallowance of non-legislative instruments. The equivalent provision for
legislative instruments is section 12 of the Legislative Instruments Act.
12. Subsection 46B(2) provides the mechanism for determining the commencement day of such an
instrument. It provides that an instrument or a provision of an instrument takes effect from a date
specified in the instrument (this may be by reference to the commencement of an Act or a provision
of an Act, or of the occurrence of an event). If no specification is made then the instrument will take
effect from the first moment of the day next following the day when it is notified in the Gazette.
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