Commonwealth Numbered Regulations - Explanatory Statements

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LEGISLATIVE INSTRUMENTS AMENDMENT REGULATIONS 2006 (NO. 1) (SLI NO 196 OF 2006)

EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2006 No. 196

 

 

Issued by the Attorney-General

 

 

Legislative Instruments Act 2003

 

Legislative Instruments Amendment Regulations 2006 (No. 1)

 

Section 62 of the Legislative Instruments Act 2003 (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 whole 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.

 

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 2006 (No. 1)

 

Regulation 1 provides that the name of the Regulations is the
Legislative Instruments Amendment Regulations 2006 (No. 1).

 

Regulation 2 provides that the Regulations commence on the day after they are registered. 

 

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 1-3 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 Legislative Instruments Act 2003 (LIA).  The instruments and the reasons for their exemption from the LIA are set out below.

 

Item [1]           This item inserts a new item 3AA after item 3 in Schedule 1, Part 2 to the Principal Regulations.

 

New item 3AA inserts an exemption from the LIA for notices made under
subsection 10(2) of the Census and Statistics Act 1905.

 

Subsection 10(2) of the Census and Statistics Act 1905 provides that the Australian Statistician may, by notice, require persons to complete and submit particular forms in relation to the collection of statistics for the purposes of a Census.

 

Legal advice on the character of this notice suggests that while it is most probably administrative it is not conclusively so.  It was considered preferable to expressly exempt the notice from the LIA to avoid doubt about the character of the notice and possible challenges to its enforceability on the basis that, if legislative, the notice would have to be registered to be enforceable.  A successful challenge to the enforceability of the notice could result in the Australian Bureau of Statistics (ABS) being unable to commence prosecutions against individuals for failure to complete the Census.  This would have a significant impact on the operations of the ABS and, consequently, an exemption is considered appropriate to put the character of the notice beyond doubt.

 

Item [2]           This item substitutes paragraph 3A(b) with new paragraphs 3A(b) and (c).

 

New paragraph 3A(b) repeats existing paragraph 3A(b), but with punctuation to allow for the insertion of new paragraph 3A(c).

 

New paragraph 3A(c) inserts an exemption from the LIA for instruments made under section 80 and subsections 200D(2), 225(1), 227(3) and 227(4) of the
Commonwealth Electoral Act 1918.  These instruments designate polling places.

 

Subsection 80(1) of the Commonwealth Electoral Act 1918 provides that the Electoral Commission may, by notice published in the Gazette, appoint, declare and abolish any polling place.  Subsection 80(3) requires the publication of a newspaper notice prior to the date of polling setting out information about polling places for Divisions.

 

Subsection 200D(2) of the Commonwealth Electoral Act 1918 provides that an application to a pre-poll voting officer must be made at a place and time fixed by the Electoral Commission, by notice published in the Gazette.

 

Subsection 225(1) of the Commonwealth Electoral Act 1918 provides that the Electoral Commission may, by notice published in the Gazette, declare the whole or a specified part of a hospital to be a special hospital at which mobile polling will take place.

 

Subsection 227(3) of the Commonwealth Electoral Act 1918 provides for the Electoral Commission to declare a Division to be a remote Division to which subsections 227(4) -- 227(11) apply.

 

Subsection 227(4) of the Commonwealth Electoral Act 1918 provides that the Electoral Commission may, by notice published in the Gazette, determine places to be visited by mobile polling teams in remote divisions and the days and times that the teams will visit these remote divisions.

 

Legal advice on the character of these instruments is inconclusive.  Earlier advice suggested that there was a small possibility that the instruments could be legislative.  On that basis, an exemption from disallowance was granted (item 2B of Schedule 2 to the Principal Regulations) since disallowance could adversely impact on the orderly conduct of polling.  Some instruments have been registered on the Federal Register of Legislative Instruments.

 

However, later advice suggests that while the instruments are most probably administrative in character and should not be registered, they are not conclusively so.  It was considered preferable to expressly exempt the instruments from the LIA to avoid doubt about the character of the instruments and possible challenges to their enforceability on the basis that, if legislative, the instruments must be registered to be enforceable.  A successful challenge to the enforceability of the instruments could bring election results into question and require a new election to be conducted for the relevant State or Territory.  Since the consequences of finding the instruments to be unenforceable are significant, an exemption is appropriate to put the character of the instruments beyond doubt. 

 

Once the instruments that have already been registered are revoked, it will be possible to amend item 2B of Schedule 2 to the Principal Regulations.

 

 

 

Item [3]           This item inserts a new paragraph 17(ea) after paragraph 17(e) in Schedule 1, Part 2 to the Principal Regulations.

 

New paragraph 17(ea) inserts an exemption from the LIA for determinations made under subsection 46L(1) or subsection 52AA(2) of the
Veterans' Entitlements Act 1986.

 

Section 46L of the Veterans' Entitlements Act 1986 allows the Minister for Veterans' Affairs 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 46D or 46E of that Act (which describe what is to be deemed income from financial assets for certain types of individuals).

 

Section 52AA of the Veterans' Entitlements Act 1986 allows the Minister for Veterans' Affairs 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 52AA(1) of that Act).

 

The purpose of the exemption is to resolve doubt about the status of the instruments and to prevent the publication of personal information.  Legal advice on the character of these kinds of instruments is inconclusive.  If they were found to be legislative instruments, registration would not be appropriate because many of the determinations issued contain personal information such as the names of individuals and/or the individual's specific investments, and/or the amount of an individual's superannuation.  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.

 


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