EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2005 No. 300

 

 

Issued by the Attorney-General

 

 

Legislative Instruments Act 2003

 

Legislative Instruments Amendment Regulations 2005 (No. 5)

 

Section 62 of the Legislative Instruments Act 2003 (the LIA) provides that the Governor‑General may make regulations prescribing all matters required or permitted by the LIA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the LIA.

 

The LIA establishes a comprehensive regime for the management of Commonwealth legislative instruments, including the creation of the Federal Register of Legislative Instruments as a repository for Commonwealth legislative instruments, explanatory statements and compilations.  The LIA also improves the mechanisms for Parliamentary scrutiny of legislative instruments.  The LIA commenced operation on 1 January 2005.  On the same day, the Legislative Instruments Regulations 2004 (the Principal Regulations) came into operation. 

 

The Principal Regulations facilitate the operation of the LIA by (amongst other things) providing exemptions from the LIA or parts of the LIA.  The purpose of the proposed Regulations is to amend the Principal Regulations to provide further exemptions from the LIA or part of the LIA, being: exemptions from the whole of the LIA; exemptions from the disallowance provisions; and exemptions from the sunsetting provisions of the LIA. 

 

The amendments to the Principal Regulations are the result of reviews by Commonwealth agencies of the relationship between legislation they administer and the LIA.  Those reviews have identified reasons why certain instruments should not be subject to the legislative instruments regime, or certain aspects of that regime. 

 

Details of the Regulations are set out in the Attachment, including the reasons why the particular exemptions from the LIA were made. 

 

The Regulations are a legislative instrument for the purposes of the LIA.

 

The Regulations commence the day after they are registered on the Federal Register of Legislative Instruments.

 

Consultation was unnecessary for this legislative instrument, as this instrument is of a minor or machinery nature only.  It has no direct, or substantial indirect, effect on business. 

ATTACHMENT

 

Details of the Legislative Instruments Amendment Regulations 2005 (No. 5)

 

 

Regulation 1 provides that the name of the Regulations is the Legislative Instruments Amendment Regulations 2005 (No. 5).

 

Regulation 2 provides that the Regulations commence on the day after they are registered.  Because the Regulations are a legislative instrument, the Legislative Instruments Act 2003 (the LIA) requires that they must be registered on the Federal Register of Legislative Instruments to be effective.

 

Regulation 3 provides that Schedule 1 to the Regulations amends the Legislative Instruments Regulations 2004 (the Principal Regulations).

 

Schedule 1                  Amendments

 

Amendments to Part 2 of Schedule 1 to the Principal Regulations

 

Items 1 and 2 of the Regulations insert new material into Part 2 of Schedule 1 to the Principal Regulations.  Part 2 of Schedule 1 lists instruments made under particular provisions that are declared not to be legislative instruments for the purposes of the LIA.  The instruments and the reasons for their exemption from the LIA are set out below.

 

Item [1]           This item inserts a new item 12F after item 12 in Part 2 of Schedule 1 to the Principal Regulations.

 

New item 12A is a determination under subsection 1084(1) or subsection 1118B(2) of the Social Security Act 1991.

 

Subsection 1084(1) of the Social Security Act 1991 allows the Minister to determine that specified financial investments, or a specified class of financial investments, are not to be regarded as 'financial assets' for the purposes of sections 1076, 1077 or 1078 of that Act (which describe what is to be deemed income from financial assets for certain types of individuals).

 

Subsection 1118B(2) of the Social Security Act 1991 allows the Minister to determine that a specified investment, or a specified class of investments, in a superannuation fund, an approved deposit fund, a deferred annuity or an ATO small superannuation account is to be disregarded for the purposes of calculating the value of a person's assets (except for provisions specified in subsection 1118B(1) of that Act).

 

Many of the determinations issued give the names of individuals and/or the individual’s specific investments and/or the amount of an individual’s superannuation.  This personal information is protected under the Social Security Act 1991 and would not otherwise be made public without a decision to release the information.  As determinations only benefit one person or a small group of persons, who are advised of the making of the determination, exempting these determinations from the LIA would not involve withholding important information from the public.

 

While these instruments are probably not legislative instruments, their inclusion in the exemptions from the LIA remove any possible uncertainty as to the characterisation of the instruments and prevent publication of personal information. 

 

Item [2]           This item inserts new items 16 and 17 after item 15 in Part 2 of Schedule 1 to the Principal Regulations. 

 

New item 16 inserts an exemption from the LIA for record-keeping rules made under subsection 151BU(1) of the Trade Practices Act 1974 for and in relation to one or more specified carriers or one or more specified carriage service providers, other than a carrier or carriage service provider specified by inclusion in a specified class.  

 

Subsection 151BU(1) provides that the Australian Competition and Consumer Commission (the Commission) may make rules (known as record-keeping rules) for and in relation to requiring one or more specified carriers or one or more specified carriage service providers to keep and retain records.  The rules may also require those carriers or carriage service providers to prepare reports consisting of information contained in those records and to give any or all of the reports to the Commission. 

 

Under Parts XIB (“The Telecommunications Industry: Anti-competitive Conduct and Record-keeping Rules”) and XIC (“Telecommunications Access Regime”) of the Trade Practices Act 1974, the Commission is responsible for preventing telecommunications carriers and carriage service providers from engaging in anti-competitive conduct (Part XIB), and regulating access to and use of telecommunications services (Part XIC). 

 

Record-keeping rules are an important tool used by the Commission in monitoring and enforcing compliance with Part XIB and Part XIC.  Record-keeping rules may be used to obtain information relating to the possible misuse of market power by a carrier or carriage service provider.  Record-keeping rules also enable the Commission to acquire price and non-price information to determine and approve terms and conditions of access to telecommunications infrastructure and to report, as directed by the Minister for Communications, Information Technology and the Arts, on the state of competition in the telecommunications industry.

 

The exemption reflects the fact that these rules are an information-gathering tool used for a range of purposes including enforcement of the obligations in Parts XIB and XIC and the avoidance and resolution of disputes in relation to access to telecommunications infrastructure.  Registration and publication of a record-keeping rule in relation to a specified carrier or carriage service provider could prematurely make public the existence of an investigation into a possible breach by the specified carrier or carriage service provider of its obligations under Part XIB or XIC.  For example, if a possible breach of the competition rule in Part XIB were being investigated by the Commission, registration and publication of a record-keeping rule that applies to the carrier or carriage service provider being investigated could create the impression that the carrier or carriage service provider had engaged in anti-competitive conduct at a stage when such a conclusion had not been reached by the Commission.  Disallowance of these kinds of record-keeping rules could also adversely impact on the Commission's capacity to fulfil its statutory functions in investigating possible breaches of Part XIB or XIC or resolving disputes about access to telecommunications services. 

New item 17 is to be inserted after item 16 in Part 2 of Schedule 1 to the Principal Regulations. 

 

New subitem 17(a) provides for instruments of allotment issued by the Defence Force under paragraph 5B(2)(a) of the Veterans’ Entitlements Act 1986.  Instruments of allotment issued under paragraph 5B(2)(a) list which persons or units of the Defence Force are allotted for duty in an operational area described in any of the items 1 to 8 (inclusive) of Schedule 2 to the Veterans’ Entitlements Act 1986.  This type of service is operational service under that Act.  While these instruments are not legislative instruments, they are used as a basis for eligibility for certain entitlements.  Exemption from inclusion the LIA provides clarification to assist users.

 

New subitem 17(b) provides for instruments of allotment signed by the Vice Chief of the Defence Force under paragraph 5B(2)(b) of the Veterans’ Entitlements Act 1986.  Instruments of allotment signed under paragraph 5B(2)(b) list which persons or units of the Defence Force are allotted for duty in an operational area described in any of the items 9 to 14 (inclusive) of Schedule 2 to the Veterans’ Entitlements Act 1986.  This type of service is operational service under that Act.  While these instruments are not legislative instruments, they are used as a basis for eligibility for certain entitlements.  Exemption from inclusion the LIA provides clarification to assist users.

 

New subitem 17(c) provides for instruments of allotment signed by the Minister for Defence under paragraph 5B(2)(c) of the Veterans’ Entitlements Act 1986.  Instruments of allotment signed under paragraph 5B(2)(c) list which persons or units of the Defence Force are taken to have been allotted for duty in an operational area described in item 4 or 8 in Schedule 2 to the Veterans’ Entitlements Act 1986.  This type of service is operational service under that Act.  While these instruments are not legislative instruments, they are used as a basis for eligibility for certain entitlements.  Exemption from inclusion the LIA provides clarification to assist users.

 

New subitem 17(d) is a determination made under section 5R of the Veterans’ Entitlements Act 1986.  A determination made under section 5R allows for a person or person in a class of persons to be considered as a member of the Defence Force and provides for entitlements under that Act.  These determinations can identify individuals by name. The determinations are exempted from registration under the LIA on the basis that there is no public interest in having an individual’s entitlements and personal information publicly identified through registration.

 

New subitem 17(e) is an instrument of assignment for service under subsection 6D(1) of the Veterans’ Entitlements Act 1986.  Instruments of assignment for service made under section 6D apply to members of the Defence Force or members of units of the Defence Force that rendered certain post-World War 2 operational service in Asia.  A person or unit must be listed on an instrument made under this section to be eligible for entitlements under the Veterans’ Entitlements Act 1986.  Although these instruments are not legislative instruments, they are also used to determine eligibility for entitlements to benefits, and the inclusion of these instruments in exemptions from the LIA removes any possible uncertainty as to the characterisation of the instruments. 

 

New subitem 17(f) lists instruments of designation made under the definition of Peacekeeping Force in subsection 68(1) of the Veterans’ Entitlements Act 1986.  An instrument of designation made under subsection 68(1) enables the Minister for Veterans’ Affairs to designate a force to be a peacekeeping force.  Members of peacekeeping forces have entitlements under the Veterans’ Entitlements Act 1986 in the event of death or incapacity arising from that service.  Item 20 of section 7 of the LIA exempts instruments relating to the terms and conditions of employment of persons or service of persons, as members or special members of the Australian Federal Police.  While Item 20 probably applies to exempt instruments of designation under subsection 68(1) from the LIA, this is not clear in all cases.  For example, it may not apply to police officers who are attached to peacekeeping missions.  Exempting these instruments from the LIA removes any possible uncertainty as to whether or not they are covered by that Act.

 

 

Amendments to Schedule 2 to the Principal Regulations

 

Item 3 of the Regulations inserts new material into Schedule 2 to the Principal Regulations.  Schedule 2 lists specific classes of instruments that are to be exempt from the disallowance provisions of the LIA.  Item 3 has the effect of providing a new exemption from the disallowance provisions of the LIA. 

 

Item [3]           This item inserts a new item 10 after item 9 in Schedule 2 to the Principal Regulations.

 

New item 10 is a determination under subsection 5C(1) of the Veterans’ Entitlements Act 1986.

 

Subsection 5C(1) enables the Minister for Defence to determine in writing that particular defence service is ‘warlike’ or ‘non-warlike’ service.  A determination made under this subsection has the effect of declaring a person to have rendered operational or qualifying service and makes them eligible for certain entitlements.

 

Virtually identical determinations are made under subsection 6(1) of the Military Rehabilitation and Compensation Act 2004.  When a determination of warlike or non-warlike service is made under that Act, a corresponding instrument will be made under the Veterans’ Entitlements Act 1986 in order to allow persons access to certain entitlements in accordance with that Act.  Determinations made under subsection 6(1) of the Military Rehabilitation and Compensation Act 2004 are exempt from the disallowance provisions of the LIA.

 

These determinations have implications for the allowances and benefits of members of the Australian Defence Force on deployment.  Before the introduction of the LIA, determinations of warlike and non-warlike service under the Veterans’ Entitlements Act 1986 were not disallowable by Parliament.  This exemption is also consistent with the existing exemption from disallowance for determinations under subsection 6(1) of the Military Rehabilitation and Compensation Act 2004.

 

 

Amendments to Schedule 3 of the Principal Regulations

 

Item 4 of the proposed Regulations inserts new material into Schedule 3 to the Principal Regulations.  Schedule 3 lists specific classes of instruments that are exempt from the sunsetting provisions of the LIA. 

 

Item [4]           This item inserts a new item 7 after item 6 in Schedule 3 to the Principal Regulations. New subitem 7(a) is a determination under subsection 5C(1) of the Veterans’ Entitlements Act 1986.  New subitem 7(b) is a determination of hazardous service under subsection 120(7) of the Veterans’ Entitlements Act 1986.  

 

The inclusion of this new item in Schedule 3 means that these instruments are not subject to the sunsetting provisions of the LIA.

 

Subsection 5C(1) enables the Minister for Defence to determine in writing that particular defence service is ‘warlike’ or ‘non-warlike’ service.  A determination made under this subsection has the effect of declaring a person to have rendered operational service or qualifying service and makes them eligible for entitlements.

 

These determinations have implications for the allowances and benefits of members of the Australian Defence Force on deployments and are intended to have a continuing effect.  The exemption promotes certainty for the members of the Defence Force to which the determinations apply by not having those determinations subject to review under the LIA in accordance with the sunsetting timetable.

 

This exemption are also consistent with the existing exemption from sunsetting for similar determinations under subsection 6(1) of the Military Rehabilitation and Compensation Act 2004.

 

Subsection 120(7) allows the Minister for Defence to make determinations that particular defence service is ‘hazardous service’ which makes people covered by the Determination eligible for certain entitlements under the Veterans’ Entitlements Act 1986.  The provision extends Part IV benefits to members of the Defence Force who are not otherwise eligible for such benefits.  An exemption from sunsetting prevents entitlements being inadvertently lapsed if the instrument is automatically repealed at the time of sunsetting.