Multiple instruments that appear to rely on section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003)-Advice only [2016] AUSStaCSDLM 373 (30 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

Instruments

Family Law (Superannuation) (Provision of Information—Military Superannuation and Benefits Scheme) Amendment Determination 2016 [F2016L01759] Forms, Fees, Circumstances and Different Way of Making an Application Amendment Instrument 2016/107 [F2016L01776] National Disability Insurance Scheme (Protection and Disclosure of Information) Amendment Rules 2016 [F2016L01733] National Health (Concession or entitlement card fee) Amendment Determination 2016 (No. 1) (PB 106 of 2016) [F2016L01789] Native Title (Assistance from Attorney-General) Amendment Guidelines 2016 [F2016L01775] Private Health Insurance (Complying Product) Amendment Rules 2016 (No. 6) [F2016L01790] Southern Bluefin Tuna Fishery Fishing Season and Australia's National Catch Allocation Determination 2017 [F2016L01715] Vehicle Standard (Australian Design Rule 57/00 – Special Requirements for L-Group Vehicles) 2006 Amendment 2 [F2016L01761]

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.