Commonwealth Numbered Regulations - Explanatory Statements
[Index] [Search] [Download] [Related Items] [Help]
LEGISLATION (EXEMPTIONS AND OTHER MATTERS) AMENDMENT (EMERGENCY MANAGEMENT INSTRUMENTS) REGULATIONS 2017 (F2017L01688)
Legislation (Exemptions and Other Matters) Amendment (Emergency Management Instruments) Regulations 2017
EXPLANATORY STATEMENT
Select Legislative Instrument No. [ ], 2017
Issued under the Authority of the Attorney-General
OUTLINE
The Legislation Act 2003 establishes a comprehensive regime for the publication of Commonwealth Acts and instruments. It also provides for the registration, tabling, parliamentary scrutiny and sunsetting (automatic repeal) of Commonwealth legislative instruments, and establishes an authoritative, complete and accessible register of those instruments, including compilations and explanatory statements.
Section 62 of the Legislation Act provides the Governor-General with the power to make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to that Act.
Subsections 44(2) and 54(2) of the Legislation Act provide that instruments prescribed by regulation for the purposes of paragraphs 44(2)(b) and 54(2)(b) are not subject to disallowance and sunsetting respectively. Paragraph 8(6)(b) of the Legislation Act provides that instruments prescribed by regulation for the purposes of that paragraph are not legislative instruments.
The Legislation (Exemptions and Other Matters) Regulation 2015 (the Principal Regulation), made under section 62 of the Legislation Act, sets out exemptions from legislative instrument status, disallowance by the Parliament and sunsetting for instrument classes and particular instruments. Regulation 7 of the Principal Regulation lists specific instruments that are not legislative instruments and therefore not subject to the operation of the Act. The Legislation (Exemptions and Other Matters) Amendment (Emergency Management Instruments) Regulations 2017 (the proposed Regulations) amends regulation 7 the Principal Regulation to confirm that the following are not legislative instruments and are exempt from the operation of the Act:
* each of the following instruments made under the Christmas Island Emergency Management Ordinance 2012 and the Cocos (Keeling) Islands Emergency Management Ordinance 2012 following their proposed amendment by the Christmas Island Emergency Management Amendment Ordinance 2017 and the Cocos (Keeling) Islands Emergency Management Amendment Ordinance 2017 (the amending Ordinances):
(i) an emergency situation declaration;
(ii) an extension of an emergency situation declaration;
(iii) a revocation of an emergency situation declaration or an extension of an emergency situation declaration;
(iv) a state of emergency declaration;
(v) an extension of a state of emergency declaration; and/or
(vi) a revocation of a state of emergency declaration or an extension of a state of emergency declaration.
The intention is to put beyond doubt that declarations and extensions of declarations of emergency situations or states of emergency made for the Territories of Christmas Island or the Cocos (Keeling) Islands, or revocations of these declarations and extensions, are not legislative instruments, as they have the effect of determining a particular circumstance in which the law applies. Instruments made under the Ordinances facilitate the Government's capacity to respond to emergency events on Christmas Island and the Cocos (Keeling) Islands, such as the imminent occurrence of accidents, incidents, events, situations or conditions that could endanger people, animals, property or the environment. If there is uncertainty about whether these instruments can operate prior to registration processes, it could delay the Government's capacity to respond to emergency events as they occur.
PROCESSES FOR REVIEW OF THIS REGULATION
The Regulation is subject to tabling and disallowance under Part 2 of Chapter 3 of the Legislation Act, and will cease as if repealed on the day after the last of its provisions commence.
Regulatory impact analysis
Before the Principal Regulation was made, its expected impact was assessed using the Preliminary Assessment tool approved by the Office of Best Practice Regulation (OBPR). That assessment indicated that it will have no or low impact on business, individuals and the economy. This assessment has been confirmed by the OBPR and granted an exemption from Regulatory impact analysis requirements (OBPR reference 17635).
Statement of compatibility with human rights obligations
Before the Regulation was made, its impact on human rights was assessed using tools and guidance published by the Attorney-General's Department. The Regulation will make technical amendments to the Principal Regulation which will have no impact on the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. This Regulation is compatible with human rights as it does not raise any human rights issues.
Consultation before making
The desirability of confirming these exemptions from legislative instrument status was established through consultation with the Department of Infrastructure and Regional Development, and is consistent with a similar exemption for the Jervis Bay Territory.
There is a general obligation on the rule-maker under section 17 of the Legislation Act to be satisfied that any consultation that is appropriate and reasonably practical has been undertaken before a legislative instrument is made. The Attorney-General was satisfied that consultation was appropriate and reasonably practicable to be undertaken. The amendments have been requested by the Minister for Local Government and Territories, who has portfolio responsibility for the legal framework for dealing with emergencies in each territory. Accordingly, the Department for Infrastructure and Regional Development has been consulted and supports the form of the amendment.
OTHER ISSUES
Matter incorporated by reference
The Regulation does not apply, adopt or incorporate other matters by reference.
More information
An explanation of the provisions and the Schedules to the Regulation is provided in Attachment A.
ATTACHMENT A
NOTES ON PROVISIONS AND SCHEDULES
Section 1 - Name of Regulations
This section provides that the title of these Regulations is the Legislation (Exemptions and Other Matters) Amendment (Emergency Management Instruments) Regulations 2017 (the Regulations).
Section 2 - Commencement
This section provides for the whole of the Regulation to commence on the day after it is registered on the Federal Register of Legislation.
Section 3 - Authority
This section provides that the Regulation is made under the Legislation Act 2003.
Section 4 - Schedules
This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulation has effect according to its terms.
Schedule 1 - Amendments
Schedule 1 of the Regulations amends section 7 of the Principal Regulation to insert new exemptions. Section 7 provides for particular instruments that are not legislative instruments.
Item 1 inserts new items 6A and 6B in the table under section 7 of the Principal Regulation. The new item 6A confirms that the following instruments are exempt from legislative instrument status:
* a declaration made or recorded in writing under section 16A or 17 of the Christmas Island Emergency Management Ordinance 2012;
* an extension given or recorded in writing under section 16B or 18 of that Ordinance; and
* a revocation given or recorded in writing under section 16C or 19 of that Ordinance.
The new item 6B confirms that the following instruments are exempt from legislative instrument status:
* a declaration made or recorded in writing under section 16A or 17 of the Cocos (Keeling) Islands Emergency Management Ordinance 2012;
* an extension given or recorded in writing under section 16B or 18 of that Ordinance; and
* a revocation given or recorded in writing under section 16C or 19 of that Ordinance.
These instruments facilitate the Government's ability to respond to emergency events on Christmas Island and the Cocos (Keeling) Islands, through providing for the making of emergency situation declarations and state of emergency declarations, extensions of these declarations, and revocations of these extensions and declarations.