Multiple instruments that appear to rely on subsection 33(3) of the Acts Interpretation Act 1901-Advice only [2017] AUSStaCSDLM 94 (22 March 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

CASA EX10/17 - Exemption — alignment line at primary parking position (operators of certified aerodromes) [F2017L00091] Norfolk Island Legislation Amendment (Pathology Transitional) Amendment (Cessation Date) Rule 2017 [F2017L00137] Norfolk Island Legislation Amendment (Diagnostic Imaging Transitional) Amendment (Cessation Date) Rule 2017 [F2017L00138] Plant Health Australia (Plant Industries) Funding Repeal Determination 2016 [F2017L00109] Private Health Insurance (Prostheses) Amendment Rules 2017 (No. 1) [F2017L00089] Sanctions Amendment (Appointment of Administrators and Advisers) Principles 2017 [F2017L00114]

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.^[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.