Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901 -New matters [2014] AUSStaCSDLM 200 (29 October 2014)

• Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901

Continuing matters

Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901

The committee has identified a number of instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901, which provides that the power to make an instrument includes the power to vary or revoke the instrument. If that is the case, the committee considers it would be preferable for the ES for any such instrument to identify the relevance of subsection 33(3), in the interests of promoting the clarity and intelligibility of the instrument to anticipated users. The committee provides the following example of a form of words which may be included in an ES where subsection 33(3) of the Acts Interpretation Act 1901 is relevant:

Under subsection 33 (3) of the Acts Interpretation Act 1901, where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws), the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.^[1]

The committee therefore draws this issue to the attention of ministers and instrument-makers responsible for the following instruments:

Aged Care (Transitional Provisions) Amendment (September 2014 Indexation) Principles 2014 [F2014L01238]

Aged Care (Subsidy, Fees and Payments) Amendment (September 2014 Indexation) Determination 2014 [F2014L01241]

Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (September 2014 Indexation) Determination 2014 [F2014L01242]

Civil Aviation Order 95.55 Amendment Instrument 2014 (No. 1) [F2014L01226]

Competition and Consumer Act 2010 - Consumer Protection Notice No. 3 of 2014 - Safety Standard: Child Restraint Systems for use in Motor Vehicles [F2014L01252]

Disability Care Load Assessment (Child) Amendment Determination 2014 [F2014L01276]

Export Control (Fish and Fish Products) Amendment (2014 Measures No. 1) Order 2014 [F2014L01292]

Migration Regulations 1994 - Specification of Access to Movement Records - IMMI 14/058 [F2014L01314]

Private Health Insurance (Complying Product) Amendment Rules 2014 (No. 6) [F2014L01234]

Private Health Insurance (Benefit Requirements) Amendment Rules 2014 (No. 4) [F2014L01235]

Public Governance, Performance and Accountability Legislation Amendment Rule 2014 [F2014L01244]

Vehicle Standard (Australian Design Rule 31/02 - Brake Systems for Passenger Cars) 2009 Amendment 2 [F2014L01220]

Vehicle Standard (Australian Design Rule 35/03 - Commercial Vehicle Brake Systems) 2009 Amendment 1 [F2014L01221]

Vehicle Standard (Australian Design Rule 35/04 - Commercial Vehicle Brake Systems) 2013 Amendment 1 [F2014L01222]

Vehicle Standard (Australian Design Rule 35/05 - Commercial Vehicle Brake Systems) 2013 Amendment 1 [F2014L01225]

Vehicle Standard (Australian Design Rule 38/03 - Trailer Brake Systems) 2007 Amendment 1 [F2014L01223]

Vehicle Standard (Australian Design Rule 38/04 - Trailer Brake Systems) 2013 Amendment 1 [F2014L01224]

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^[1] For more extensive comment on this issue, see Delegated legislation monitor No. 8 of 2013, p. 511.