Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901 - Advice only [2015] AUSStaCSDLM 204 (12 October 2015)

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

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

Instruments	ASIC Redundant Class Orders (Amendment and Repeal) Instrument 2015/826 [F2015L01432]
	Asset-test Exempt Income Stream (Lifetime Income Stream Guidelines) (Social Security) Determination 2015 [F2015L01444]
	Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2015 (No. 1) [F2015L01422]
Scrutiny principle	Standing Order 23(3)(a)

Drafting

The instruments identified above 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]

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