Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901-Advice only [2017] AUSStaCSDLM 259 (8 September 2017)

• 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

Anti-Money Laundering and Counter-Terrorism Financing Rules Amendment Instrument 2017 (No. 2) [F2017L00733] ASIC Corporations (Amendment) Instrument 2017/577 [F2017L00760] Auditing Standard ASA 2017-1 Amendments to Australian Auditing Standards [F2017L00693] Autonomous Sanctions (Designated Persons and Entities – Democratic People’s Republic of Korea) Amendment List 2017 [F2017L00637] Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Ukraine) Amendment List 2017 [F2017L00675] Charter of the United Nations (Sanctions – Democratic People’s Republic of Korea) (Luxury Goods) Instrument 2017 [F2017L00635] Christmas Island Utilities and Services (Water, Sewerage and Building Application Services Fees) Amendment (2017 Measures No. 1) Determination 2017 [F2017L00747] Cocos (Keeling) Islands Utilities and Services (Water, Sewerage and Building Application Services Fees) Amendment (2017 Measures No. 1) Determination 2017 [F2017L00748] Customs (Australian Trusted Trader Programme) Amendment (2017 Measures No. 1) Rule 2017 [F2017L00769] Defence Home Ownership Assistance Scheme (Average House Price and Median Interest Rate) Amendment Determination 2017 [F2017L00662] Diplomatic Privileges and Immunities (Indirect Tax Concession Scheme) Amendment (Belarus, Cuba, Ethiopia, Mauritius and Zambia) Determination 2017 [F2017L00737] Export Control (Plants and Plant Products) Amendment (Small Horticultural Products Registered Establishments) Order 2017 [F2017L00626] GST—free Supply (National Disability Insurance Scheme Supports) Amendment Determination 2017 [F2017L00722] Immigration (Education) (Functional English) Specification 2017 [F2017L00720] National Health (Subsection 84C(7)) Amendment Determination 2017 (No. 1) (PB 52 of 2017) [F2017L00671] National Health (Weighted average disclosed price – October 2017 reduction day) Determination 2017 (PB 44 of 2017) [F2017L00676] Health Insurance (Accredited Pathology Laboratories — Approval) Amendment Principles 2017 (No. 2) [F2017L00681] Health Insurance Legislation Revocation (2017 Measures No.1) Determination 2017 [F2017L00668] Occupational Health and Safety (Maritime Industry) (Prescribed Ship or Unit — Intra-State Trade) Declaration 2017 [F2017L00673] Part 21 Manual of Standards Amendment Instrument 2017 (No. 1) [F2017L00619] Private Health Insurance (Benefit Requirements) Amendment Rules 2017 (No. 4) [F2017L00603] Private Health Insurance (Complying Product) Amendment Rules 2017 (No. 2) [F2017L00776] Private Health Insurance (Registration) Rules 2017 (No 2) [F2017L00670] Radiocommunications (Duration of Community Television Transmitter Licences) Determination (No. 1) of 2008 (Amendment No. 1 of 2017) [F2017L00765] Seafarers Rehabilitation and Compensation (Prescribed Ship — Intra-State Trade) Declaration 2017 [F2017L00674] Social Security (Tables for the Assessment of Work-related Impairment for Disability Support Pension) Amendment Determination 2017 [F2017L00659][1] Tertiary Education Quality and Standards Agency (Information) Guidelines 2017 [F2017L00630] Therapeutic Goods Information Specification 2017 [F2017L00638] VET Student Loans (Courses and Loan Caps) Amendment Determination (No. 1) 2017 [F2017L00616] VET Student Loans (Courses and Loan Caps) Amendment Determination (No. 2) 2017 [F2017L00617]

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.^[2]

The committee draws the above to the attention of ministers.

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[1] The instrument was disallowed by the Senate on 21 June 2017.

[2] For more extensive comment on this issue, see Delegated legislation monitor 8 of 2013, p. 511.