Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020 [2020] AUSStaCSBSD 226 (9 December 2020)

• Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020
• Instruments not subject to parliamentary disallowance 13

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Designs Amendment (Advisory Council on Intellectual Property Response) Bill 2020

Purpose	This bill seeks to make several technical amendments to simplify and clarify aspects of the design system, and to provide more flexibility for designers during the early stages of registering design protection
Portfolio	Industry, Science and Technology
Introduced	Senate on 2 December 2020

Instruments not subject to parliamentary disallowance ^[13]

1.1 Item 4 of Schedule 6 seeks to insert proposed section 149A to allow the Registrar of Designs to determine the formal requirements that a designs application must comply with for the purposes of a formalities check under sections 39 and 40 of the Designs Act 2003. Proposed subsection 149A(3) provides that a determination made under subsection 149A(1) is not a legislative instrument.

1.2 The committee notes that as instruments made under proposed section 149A are specified not to be legislative instruments they will not be subject to the tabling, disallowance or sunsetting requirements that apply to legislative instruments. As such there is no parliamentary scrutiny of non-legislative instruments. Given the impact on parliamentary scrutiny, the committee expects the explanatory materials to include a justification for why determinations that are to be made under proposed section 149A are not legislative in character. In this instance, the explanatory memorandum notes in relation to proposed subsection 149A(3):

Subsection 149A(3) is intended to assist readers as it clarifies that a determination made under section 149A(1) is not a legislative instrument for the purposes of the Legislation Act 2003.^[14]

1.3 While acknowledging this explanation it is unclear to the committee, on the basis of the explanatory materials provided, why determinations made under proposed section 149A are not legislative in character.

1.4 The committee therefore requests the minister’s more detailed advice regarding:

• why it is appropriate to specify that determinations made under proposed section 149A are not legislative instruments; and

• whether the bill could be amended to provide that these instruments are legislative instruments to ensure that they are subject to appropriate parliamentary oversight.

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[13] Schedule 6, item 4, proposed subsection 149A(3). The committee draws senators’ attention to this provision pursuant to Senate Standing Order 24(1)(a)(v).

[14] Explanatory memorandum, p. 38.