EXPLANATORY STATEMENT

 

 

Select Legislative Instrument 2005 No. 28

 

 

Issued by the Attorney-General

 

 

Legislative Instruments (Transitional Provisions and
Consequential Amendments) Act 2003

 

Legislative Instruments (Transitional Provisions and
Consequential Amendments) Regulations 2005

 

Subsection 5(1) of the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 (the Act) provides that the Governor‑General may make regulations prescribing matters of a transitional nature (including prescribing any saving or application provisions) arising out of the amendments made by Schedule 1 to the Act. 

 

Schedule 1 to the Act, which came into effect on 1 January 2005, amends and repeals provisions of other Acts in consequence of the coming into operation of the Legislative Instruments Act 2003 (which also commenced on 1 January 2005).  One of the provisions repealed by the Act was section 49A of the Acts Interpretation Act 1901.  Section 49A provided (amongst other things) that, unless the contrary intention appeared, regulations shall not make apply, adopt or incorporate matters contained in an instrument as in force or existing from time to time. 

 

The substance of section 49A is now reflected in section 14 of the Legislative Instruments Act.  Subsection 14(1) allows disallowable legislative instruments that are amended from time to time to be incorporated in regulations. However, subsection 14(2) provides that, unless the contrary intention appears, other instruments in force from time to time (for example matters specified in Gazette notices) may not be incorporated in regulations.

 

The purpose of the proposed Regulations is to clarify that the commencement of Schedule 1 to the Act has not affected the continuing operation of a provision in the Migration Act 1958.  

 

Subsection 504(2) of the Migration Act provides that section 49A of the Acts Interpretation Act does not prevent, and has not prevented, regulations whose operation depends on a country or other matter being specified or certified by the Minister in a notice published in the Gazette after the taking effect of the regulations.  Thus, subsection 504(2) constituted a contrary intention for the purposes of section 49A.  The effect of the contrary intention is that, where the Migration Regulations 1994 refer to a Gazette notice, they mean that notice as it is varied from time to time.  Without the contrary intention which is expressed by subsection 504(2), the Gazette notice would be read as only the notice that was in effect on the date of commencement of the regulation.

 

However, it is not clear that subsection 504(2) constitutes a contrary intention for the purposes of subsection 14(2) of the Legislative Instruments Act.

 

The Government intends introducing an amendment into the Parliament later this year to correct the reference in subsection 504(2) of the Migration Act.  In the meantime, the Regulations ensure the continued operation of subsection 504(2) as a contrary intention to the prohibition in subsection 14(2) of the Legislative Instruments Act.

 

The Regulations allow the Minister administering the Migration Act to continue to amend Gazette notices made under the Migration Regulations from time to time without remaking the enabling regulations.  The Regulations have a sunset provision of 31 December 2005, given the proposed intention to amend subsection 504(2).  Once the amendment is passed, the regulation will no longer be necessary. 

 

Details of the Regulations are set out in the Attachment.

 

The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act.

 

Subsection 5(2) of the Act provides that regulations made under section 5 of the Act within one year after commencement of that section may take effect on a day earlier than the day on which they are registered under the Legislative Instruments Act, but not earlier than the commencement of that section.  Section 5 of the Act commenced on 1 January 2005.  The Regulations commence retrospectively, on 1 January 2005.  This is consistent with the purpose of the Act and would have no adverse effect.

 

Consultation was unnecessary for this legislative instrument as this instrument is of a minor or machinery nature only.  It is intended to clarify and not substantially alter existing arrangements.

 

ATTACHMENT

 

Details of the proposed Legislative Instruments (Transitional Provisions and Consequential Amendments) Regulations 2005

 

Regulation 1 provides that the name of Regulations is the Legislative Instruments (Transitional Provisions and Consequential Amendments) Regulations 2005.

 

Regulation 2 provides that the Regulations commence on 1 January 2005.  The retrospective commencement date ensures that instruments referred to in subsection 504(2) of the Migration Act 1958, that were made after 1 January 2005 and that were intended to affect the operation of the Migration Regulations 1994, would have that intended effect.

 

Regulation 3 provides that the Regulations are made under section 5 of the Legislative Instruments (Transitional and Consequential Provisions) Act 2003 and prescribe matters of a transitional nature arising out of the amendments made by Schedule 1 to that Act.

 

Regulation 4 ensures that there is a contrary intention to subsection 14(2) of the Legislative Instruments Act 2003 so the Minister can continue to amend Gazette notices that affect the operation of regulations.

 

Subregulation 4(1) provides that subsection 504(2) of the Migration Act has effect in relation to regulations to which that subsection applies as if the reference in that subsection to section 49A of the Acts Interpretation Act 1901 were a reference to section 14 of the Legislative Instruments Act.  

 

Subsection 14(2) of the Legislative Instruments Act provides that, unless the contrary intention appears, a legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

 

This means that a contrary intention to subsection 14(2) of the Legislative Instruments Act is required to ensure that the Minister can continue to amend instruments made under the Migration Regulations which are referred to in subsection 504(2) of the Migration Act.  That contrary intention was supplied by the reference in subsection 504(2) to section 49A of the Acts Interpretation Act.  It is continued by the Regulations.

 

Subregulation 4(2) provides that the Regulations cease to have effect on 31 December 2005.  This ensures that the Regulations are only a transitional solution so that the Minister administering the Migration Act can continue to amend instruments made under the Migration Regulations from time to time until a more permanent solution, in the form of an amendment to the Migration Act, is in place.