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 [2017] AUSStaCSDLM 38 (8 February 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

Aged Care (Subsidy, Fees and Payments) Amendment (Viability Supplement) Determination 2016 [F2016L01984] Aged Care (Transitional Provisions) (Subsidy and Other Measures) Amendment (Viability Supplement) Determination 2016 [F2016L01994] ASIC Corporations (Amendment) Instrument 2016/1158 [F2016L01945] ASIC Corporations (Concept Validation Licensing Exemption) Instrument 2016/1175 [F2016L01991] ASIC Corporations (Nominee and Custody Services) Instrument 2016/1156 [F2016L01943] ASIC Corporations (Recognised Accountants: Exempt Services) Instrument 2016/1151 [F2016L01866] ASIC Credit (Concept Validation Licensing Exemption) Instrument 2016/1176 [F2016L01992] Export Charges (Imposition—Customs) Amendment (Norfolk Island Plants) Regulation 2016 [F2016L01822] Export Charges (Imposition—General) Amendment (Norfolk Island Plants) Regulation 2016 [F2016L01825] Export Control (Fees) Amendment (Norfolk Island Plants) Order 2016 [F2016L01797] Fisheries Levy (Torres Strait Prawn Fishery) Regulation 2016 [F2016L01802] Fishing Levy Regulation 2016 [F2016L01803] Insolvency Practice Rules (Bankruptcy) 2016 [F2016L02004] Insolvency Practice Rules (Corporations) 2016 [F2016L01989] Narcotic Drugs (Licence Charges) Regulation 2016 [F2016L01893] National Disability Insurance Scheme (Facilitating the Preparation of Participants’ Plans—Northern Territory) Rules 2016 [F2016L01966] Primary Industries (Customs) Charges Amendment (Melons) Regulation 2016 [F2016L01821] Primary Industries (Excise) Levies Amendment (Melons) Regulation 2016 [F2016L01819] Subsidy Amendment (Viability Supplement) Principles 2016 [F2016L01985] Telecommunications (Fibre-ready Facilities — Exempt Real Estate Development Projects) Instrument 2016 [F2016L01871]

Scrutiny principle

Standing Order 23(3)(a)

Incorporation of Commonwealth disallowable legislative instruments

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

The instruments identified above incorporate Commonwealth disallowable legislative instruments. However, neither the text of the instruments nor their accompanying ESs state the manner in which they are incorporated.

The committee acknowledges that 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, the committee expects instruments to clearly state the manner of incorporation (that is, either as in force from time to time or as in force at a particular time) of external documents, including other legislative instruments. 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 therefore considers that, notwithstanding the operation of section 10 of the Acts Interpretation Act 1901 (as applied by paragraph 13(1)(a) of the Legislation Act 2003), and in the interests of promoting clarity and intelligibility of

an instrument to persons interested in or affected by an instrument, instruments

(and ideally their accompanying ESs) should clearly state the manner in which Commonwealth disallowable legislative instruments are incorporated.

The committee draws the above to the attention of ministers.