Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901-Advice only [2017] AUSStaCSDLM 317 (16 August 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

ASIC Corporations (Amendment) Instrument 2017/642 [F2017L00905] ASIC Credit (Amendment) Instrument 2017/641 [F2017L00904] Australian Prudential Regulation Authority (Commonwealth Costs) Determination 2017 [F2017L00907] Authorised Deposit-taking Institutions Supervisory Levy Imposition Determination 2017 [F2017L00906] Authorised Non-operating Holding Companies Supervisory Levy Imposition Determination 2017 [F2017L00908] Autonomous Sanctions (Russia, Crimea and Sevastopol) Amendment Specification 2017 [F2017L01001] Broadcasting (Hours of Local Content) Declaration No. 1 of 2017 [F2017L01000] Carbon Credits (Carbon Farming Initiative) Amendment Rule 2017 (No. 1) [F2017L00925] Charter of the United Nations (UN Sanction Enforcement Law) Amendment Declaration 2017 (No. 2) [F2017L00991] Declaration of Quality Assurance Activity under section 124X of the Health Insurance Act 1973 – QAA 3/2017 [F2017L00931] General Insurance Supervisory Levy Imposition Determination 2017 [F2017L00911] Life Insurance Supervisory Levy Imposition Determination 2017 [F2017L00912] Private Health Insurance (Benefit Requirements) Amendment Rules 2017 (No. 6) [F2017L00894] Public Governance, Performance and Accountability (Relevant Company) Amendment (2017 Measures No 2) Rules 2017 [F2017L00935] Retirement Savings Account Providers Supervisory Levy Imposition Determination 2017 [F2017L00913] Superannuation Supervisory Levy Imposition Determination 2017 [F2017L00914] Telecommunications (Integrated Public Number Database Scheme – Conditions for Authorisations) Determination 2017 [F2017L00941] Telecommunications (Integrated Public Number Database Scheme – Criteria for Deciding Authorisation Applications) Instrument 2017 [F2017L00937] Telecommunications (Integrated Public Number Database – Permitted Research Purposes) Instrument 2017 [F2017L00938] Telecommunications (Integrated Public Number Database – Public Number Directory Additional Information) Instrument 2017 [F2017L00933] Telecommunications (Integrated Public Number Database – Public Number Directory Requirements) Instrument 2017 [F2017L00934] Therapeutic Goods (Permissible Ingredients) Determination No. 3 of 2017 [F2017L00926]

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 that 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]

The committee draws the above to the attention of ministers.

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