Bringing it all together – Changes to the Commonwealth Legislative Framework

Acts and Instruments (Framework Reform) Act 2015 (Cth)

WHAT YOU NEED TO KNOW

The Acts and Instruments (Framework Reform) Act 2015 (Cth) (the Act) was enacted on 5 March 2015 and is set to commence on a day to be fixed by Proclamation, or no later than 6 March 2016. The Act:

• establishes a single, authoritative database for acts and instruments, called the Federal Register of Legislation (the Register);
• establishes a new category of instruments, called "notifiable instruments";
• emphasises the need for consultation before any legislative instrument is made;
• provides for the retrospective operation of legislative instruments only in beneficial circumstances;
• clarifies the operation of the machinery of government provisions and the incorporation of material sections in the Acts Interpretation Act 1901 (Cth); and
• changes references to "determinations" and "instruments in writing" in Defence legislation to "legislative instruments".

WHAT YOU NEED TO DO

• Review your departmental procedures for consulting on draft legislative instruments;
• Consider if any forms or instruments will or should be notifiable and be included on the Register; and
• Update your departmental procedures for making and registering legislative instruments.

Background

The Acts and Interpretation (Framework Reform) Act 2015 (Cth) (the Act) was enacted on 5 March 2015 and is set to commence on a day to be fixed by Proclamation or no later than 6 March 2016.

Amending the Legislative Instruments Act 2003 (Cth) (the LI Act) and the Acts Interpretation Act 1901 (Cth) (the Interpretation Act), the Act is the latest step in a series of changes to the Commonwealth's legislative framework that started in 2008.

In 2008, after five years of operation, a statutory review was conducted into the LI Act and resulted in a report entitled 2008 Review of the Legislative Instruments Act 2003 (the Report).

The purpose of the Act is to implement a number of outstanding recommendations from the Report and to simplify and improve the operation of the legislative framework for Commonwealth Acts and instruments.

The Register

One of the key changes implemented by the Act is the consolidation of the existing Acts database and Federal Register of Legislative Instruments into a single database for both legislation and instruments, being the "Federal Register of Legislation" (the Register).

The Register will now contain Acts, legislative and notifiable instruments, compilations of Acts, explanatory statements for legislative instruments, and other relevant documents and information. The Register will be a complete, authoritative and accurate record of all registered Acts, legislative instruments and notifiable instruments.

The Act also consolidates the publication and registration requirements for Commonwealth Acts and legislative instruments into the LI Act, which will be renamed the "Legislation Act 2003 (Cth)" (the Legislation Act) to reflect this.

The Act also provides for judicial notice of authorised, electronic versions of Acts, legislative instruments, notifiable instruments and explanatory statements if those documents are downloaded from the approved website. Accordingly, in proceedings in a court or tribunal, proof is no longer required of matters relating to the entry into force of an Act or the making of an instrument, or indeed of the content of Acts or instruments on the Register.

Definition of "legislative instrument"

Importantly, the Act provides for a new, clearer definition of "legislative instrument" and removes previous references to the "legislative character" of an instrument.

Notwithstanding that much enabling legislation now declares an instrument made under it to be (or not to be) a legislative instrument, the new definition will assist rule makers to make and apply instruments (legislative or otherwise) with greater confidence as to the proper legal effect of the instrument.

New category: "notifiable instruments"

The Act introduces a new category of instrument, called the "notifiable instrument".

Notifiable instruments are not legislative in nature, meaning that they are not subject to parliamentary scrutiny or sun-setting (automatic repeal). The purpose of the new category is to cover instruments that, while not appropriate to register as legislative instruments, are nevertheless important for public accessibility or centralised management reasons.

Examples of notifiable instruments include commencement, amendment and repeal instruments. They also include approved forms that require publishing or are made under a legislative instrument or another notifiable instrument.

Instruments can become notifiable instruments in three ways: by registration, being prescribed by regulation under the Legislation Act, or declaration in the relevant enabling legislation.

Publication

The Act modifies section 56 of the LI Act to provide that, if an Act or instrument made before 1 January 2005 (when the LI Act commenced) requires a legislative instrument to be published in the Gazette or in another way (such as on a Departmental website), lodging that instrument on the Register will satisfy that requirement.

This simplifies the publication requirements for legislative instruments.

However, if the enabling legislation was made after 1 January 2005 and requires an additional publication requirement for a legislative instrument (such as registration and publication on a website), the additional means of publication must be carried out.

Changes to consultation requirements

The Act amends section 17 of the LI Act, relating to rule-makers engaging in consultation before making legislative instruments. The former section 17 provided that rule-makers were required to be satisfied that any appropriate and reasonably practicable consultation had been undertaken, "particularly where the proposed instrument [was] likely to have a direct, or substantial indirect, effect on business, or restrict competition."

The new section 17 removes the references to business and competition, in line with recommendation 32 in the Report, to avoid the perception that consultation is only required for instruments that may affect business or competition.

The new section 17 requires that, before any legislative instrument is made, the rule-maker must be satisfied that any appropriate and reasonably practicable consultation has been undertaken.

Consultation required in most cases

To emphasise the requirement for consultation, the Act repeals section 18 of the LI Act, which provided examples of circumstances where rule-makers were not necessarily required to engage in consultation before making legislative instruments.

The amendments do not require consultation to be undertaken in all circumstances, but rather emphasise that the circumstances in which consultation will not be required are limited and there are no express exemptions to that requirement.

Rule-makers will now need to consider each proposed legislative instrument's consultation requirements on a case-by-case basis. Rule-makers can no longer treat the examples in former section 18 as being routine exemptions to the consultation requirements.

Retrospective operation

The Act provides that a provision of a legislative or notifiable instrument will not apply to a person retrospectively to the extent that it would affect the person's rights so as to disadvantage them or to impose liabilities on them.

This amends the former section 12(2) of the LI Act, which provided that the whole legislative instrument had no effect if any provision of that instrument purported to operate retrospectively (in any way, including any beneficial effect).

As before, the application of the new section can be displaced by express provision for retrospective operation in the relevant enabling Act.

Machinery of government and incorporation by reference changes

The Act makes amendments to the Interpretation Act to clarify references in legislation to Ministers and Departments, to broaden and strengthen existing provisions relating to machinery of government changes, and to expand the coverage of provisions relating to notifiable instruments and incorporation by reference.

The Act:

• repeals and substitutes the existing sections 19 to 20, which deal with references to Ministers and Departments in legislation. The new sections simplify the rules for interpreting references to Ministers and Departments, thereby reducing the need to make substituted reference orders where machinery of government changes affect government structures;
• expands the coverage of section 46AA, relating to incorporation by reference for non-legislative instruments, to apply to instruments that are neither legislative or notifiable instruments; and
• clarifies provisions with references to Ministers, Departments and other government entities, while also broadening existing provisions relating to machinery of government changes.

These amendments are intended to reduce confusion surrounding different categories of government entities and instruments, and to enhance the status of the Register as the central repository and authoritative source of Commonwealth Acts and instruments.

Defence instruments now legislative in nature

The Act repeals section 46B of the Interpretation Act, which currently provides a special disallowance regime for non-legislative disallowable instruments made under certain Defence legislation. Since all of these instruments are able to be classified as legislative instruments, section 46B will no longer be necessary once the Act commences.

To reflect this, the Act makes consequential amendments to Defence legislation. The amendments include amending or repealing sections of:

• the Defence Act 1903 (Cth);
• the Defence Force Discipline Act 1982 (Cth); and
• the Defence Force Retirement and Death Benefits Act 1973 (Cth),

which contain references to "determination" or "instrument in writing" under section 58B or 58H of the Defence Act 1903 (Cth).

Essentially, the Act operates to bring these former determinations under the LI Act by changing the reference in section 58B from "instrument in writing" to "legislative instrument".

As such, new instruments made under the amended Defence legislation will be legislative instruments that will need to be registered and are subject to parliamentary scrutiny and sun-setting.

In conjunction with the repeal of section 18 of the LI Act that was generally taken to exclude Defence instruments from the consultation requirements in the LI Act, these changes consolidate the Register as the authoritative repository for all legislative instruments and remove the separate disallowance regime that applied specifically to Defence instruments.

First Parliamentary Counsel's Rules

The Act provides the First Parliamentary Counsel with a number of new powers in relation to Acts and instruments in the Register, including the power to make legislative instruments known as "rules". "Rules" made by the First Parliamentary Counsel can relate to matters such as the keeping of the Register, lodgement and registration, the compilation of Acts and instruments, and authorised versions of registered laws or documents.

In addition, the Act provides the First Parliamentary Counsel with the power to make minor editorial amendments to Acts and instruments on the Register, provided that such amendments do not change the substantive effect of the relevant legislation. The Act requires the Minister responsible for administering a registered Act, or the rule-maker for a particular instrument, to notify the First Parliamentary Counsel where they become aware of an error or any matter affecting the accuracy or currency of that Act or instrument. The First Parliamentary Counsel has the power to amend the Register as required, whether or not he or she has been notified by the Minister or rulemaker.

Removal of Attorney-General's power

Finally, the Act removes the power of the Attorney-General to certify an instrument as legislative in character. The reason for this amendment is to avoid confusion surrounding the status of the Attorney-General's decisions in this respect.

As noted in the Report, an Attorney-General's decision to issue a certificate is judicially reviewable, meaning that any such certificate is not able to provide the final legal certainty it purports to. Removing the Attorney-General's power to certify an instrument as legislative in character puts this power back into the hands of the Parliament, which, if it seeks to make a declaration that an instrument is legislative in character, must do so in the instrument's enabling legislation.