Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901-Advice only [2017] AUSStaCSDLM 371 (18 October 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

Aged Care Legislation Amendment (Financial Reporting) Principles 2017 [F2017L01163] ASIC Corporations (Amendment) Instrument 2017/6 [F2017L01128] Auditing Standard ASA 2017-2 Amendments to Australian Auditing Standards [F2017L01179] Autonomous Sanctions (Designated Persons and Entities and Declared Persons – Ukraine) Amendment List 2017 (No. 2) [F2017L01118] Autonomous Sanctions (Designated Persons and Entities – Democratic People’s Republic of Korea) Amendment List 2017 (No 2) [F2017L01063] Biosecurity (Ballast Water and Sediment) Determination 2017 [F2017L01123] CASA 84/17 [F2017L01068] Christmas Island Utilities and Services (Electricity Supply and Service Fees) Amendment (2017 Measures No. 1) Determination 2017 [F2017L01159] Cocos (Keeling) Islands Utilities and Services (Electricity Supply and Service Fees) Amendment (2017 Measures No. 1) Determination 2017 [F2017L01161] Competition and Consumer (Inland Terminals) Declaration 2017 [F2017L01077] Currency (Royal Australian Mint) Amendment Determination (No. 1) 2017 [F2017L01087] GST–free supply (National Disability Insurance Scheme Supports) Amendment Determination 2017 (No. 2) [F2017L01127] Health Insurance (Allied Health Services) Amendment (Health Care Homes) Determination 2017 [F2017L01092] Health Insurance (FTB(A) Family) Determination 2017 [F2017L01081] Insolvency Practice Rules (Corporations) Amendment 2017 (No. 1) [F2017L01088] Motor Vehicle Standards (Road Vehicles) Determination 2017 [F2017L01175] Norfolk Island Legislation Amendment (Diagnostic Imaging Transitional) Amendment (Cessation Date) Rule (No. 2) 2017 [F2017L01064] Primary Industries (Excise) Levies (Designated Bodies) Amendment Declaration 2017 [F2017L01066] Public Governance, Performance and Accountability Amendment (Listed Entities) Rules 2017 [F2017L01134] VET Student Loans Amendment Rules (No. 2) 2017 [F2017L01121]

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 explanatory statement (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 matter 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.