Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901-Advice only [2017] AUSStaCSDLM 194 (14 June 2017)

• 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)

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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)

Instruments

Fair Work (Registered Organisations) Amendment Regulations 2017 [F2017L00470] Fish Receiver Permits Declaration 2017 [F2017L00400] Goods and Services Tax: Classes of Recipient Created Tax Invoice Determination 2017 for Defined Commission and/or Fee Based Services in the Financial Industry [F2017L00419] Parliamentary Entitlements (Supplement of Capped Entitlements) Determination 2017 (No. 1) [F2017L00496] Therapeutic Goods Information (Laboratory Testing) Specification 2017 [F2017L00407]

Scrutiny principle

Standing Order 23(3)(a)

Incorporation of Commonwealth disallowable legislative instruments

The instruments identified above incorporate by reference Commonwealth disallowable legislative instruments. This means that they incorporate the content of other disallowable legislative instruments without reproducing the relevant text.

Section 14 of the Legislation Act 2003 allows legislative instruments to make provision in relation to matters by incorporating disallowable legislative instruments, either as in force at a particular time or as in force from time to time.

Section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) has the effect that references to Commonwealth disallowable legislative instruments can be taken to be references to versions of those instruments as in force from time to time. However, neither the text of the instruments identified above, nor their accompanying ESs explain the relevance of these provisions to their operation.

The committee considers that, in the interests of promoting the clarity and intelligibility of delegated legislation, instruments (and ideally their accompanying ESs) should clearly state the manner in which Commonwealth disallowable legislative instruments are incorporated; and/or clearly identify the relevance of section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003) to their operation. This enables persons interested in or affected by an instrument to understand its operation, without the need to rely on specialist legal knowledge or advice, or consult extrinsic material.

The committee's expectations in this regard are set out in the guideline on incorporation contained in Appendix 1.

The committee draws the above to the attention of ministers.