Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901 -Advice only [2016] AUSStaCSDLM 309 (9 November 2016)

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

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

1. Instruments

2. ASIC Corporations (Repeal and Transitional) Instrument 2016/396 [F2016L01497] 3. Australian Border Force (Secrecy and Disclosure) Amendment (2016 Measures No. 1) Rule 2016 [F2016L01461] 4. Australian Passports (Application Fees) Amendment (2016 Measures No. 1) Determination 2016 [F2016L01597] 5. Currency (Royal Australian Mint) Amendment Determination (No. 1) 2016 [F2016L01606] 6. Electricity Supply Fees Determination 2017 (Jervis Bay Territory) [F2016L01587] 7. Excise concessional spirit approvals guidelines 2016 (No. 2) [F2016L01554] 8. Excise (Denatured spirits) Determination 2016 (No. 3) [F2016L01523] 9. Excise (Mass of CNG) Determination 2016 (No. 2) [F2016L01522] 10. Excise (Volume—recycled waste oil) Determination 2016 (No. 1) [F2016L01517] 11. Excise (Volume of Liquid Fuels - Temperature Correction) Determination 2016 (No. 2) [F2016L01519] 12. Excise (Volume of LPG – Temperature and Pressure Correction) Determination 2016 (No. 2) [F2016L01520] 13. Export Control (Animals) Amendment (Approved Arrangements) Order 2016 [F2016L01435] 14. Fuel Tax (Fuel Blends) Determination 2016 (No. 1) [F2016L01518] 15. Private Health Insurance (Benefit Requirements) Amendment Rules 2016 (No. 5) [F2016L01446] 16. Private Health Insurance (Benefit Requirements) Amendment Rules 2016 (No. 6) [F2016L01463] 17. Private Health Insurance (Complaints Levy) Rules 2016 [F2016L01450] 18. Private Health Insurance (Complying Product) Amendment Rules 2016 (No. 4) [F2016L01447] 19. Private Health Insurance (Complying Product) Amendment Rules 2016 (No. 5) [F2016L01464] 20. Private Health Insurance (Prostheses) Amendment Rules 2016 (No. 3) [F2016L01596] 21. Public Lending Right Scheme 2016 [F2016L01549] 22. Remuneration Tribunal Determination 2016/11 - Remuneration and Allowances for Holders of Public Office and Judicial and Related Offices [F2016L01508] 23. Safety, Rehabilitation and Compensation (Rates of Interest Payable) Notice 2016 [F2016L01469] 24. Telecommunications (Data for emergency warning systems) Instrument 2016 [F2016L01600] 25. Vehicle Standard (Australian Design Rule 2/01 – Side Door Latches and Hinges) 2006 Amendment 2 [F2016L01459]

26. Scrutiny principle

27. 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.