Express law No. 244

4 March 2016

Acts and Instruments (Framework Reform) Act 2015 to commence on 5 March

The Acts and Instruments (Framework Reform) Act 2015 (Acts and Instruments Act) creates a Federal Register of Legislation (the Register), amends and renames the Legislative Instruments Act 2003 (LI Act) and consolidates requirements for the registration of both Acts and instruments. It also amends provisions in the Acts Interpretation Act 1901 (AI Act) relating to the interpretation of references to ministers and departments. It received royal assent on 5 March 2015 and will commence on 5 March 2016.

Summary of key changes

The Acts and Instruments Act will:

• rename the LI Act the Legislation Act 2003 (Legislation Act) and repeal the Acts Publication Act 1905 (Publication Act)
• create the Register, which combines the Acts database established under s 4 of the Publication Act and the Federal Register of Legislative Instruments established under s 20 of the LI Act
• consolidate the requirements for the registration of Acts and instruments (Legislation Act, Ch 2)
• consolidate provisions in the LI Act and the AI Act relating to the definition of 'legislative instrument'
• create the outcome that legislative instruments not subject to disallowance and not subject to sunsetting are prescribed in one place (in the Legislation (Exemptions and Other Matters) Regulation 2015)
• amend the retrospectivity provisions in s 12 of the LI Act by providing that an instrument with retrospective operation will be of no effect only in relation to a person who is negatively affected by that operation
• create a new category of registrable instruments called 'notifiable instruments'
• allow the First Parliamentary Counsel to make editorial changes to Acts and instruments that do not change their effect; and make rules to facilitate the consistency, accuracy and currency of the Register
• extend current lodgement requirements for initial explanatory statements to replacement and supplementary explanatory statements
• make a number of amendments to the AI Act, including simplifying and expanding provisions relating to the interpretation of references to ministers and departments in legislation (see AI Act ss 19–19A; Acts and Instruments Act, Sch 2).

The Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 will make consequential amendments to other Acts.

Implications of the Register for rule-makers

The Register is intended to be a permanent repository of versions of Commonwealth Acts and registered instruments and must be accessible on an approved website (www.legislation.gov.au). It will contain:

• Acts as made
• legislative and notifiable instruments as made
• compilations of Acts and legislative and notifiable instruments
• explanatory statements for legislative instruments
• other registered documents that the First Parliamentary Counsel considers likely to be useful to users of the Register, such as Gazette notices.

Rule-makers will continue to be required to lodge instruments as soon as practicable after they are made. They will also be able to lodge other documents for registration, such as documents that might be incorporated into an instrument by reference (Legislation Act, s 15G). Rule-makers will have a number of new obligations including:

• notifying the First Parliamentary Counsel of changes that might affect the currency or accuracy of the Register (Legislation Act, s 15L)
• preparing compilations of instruments following 'required compilation events' (Legislation Act, s 15R).

As is currently the case, the registration of a legislative or notifiable instrument will generally satisfy any statutory publication requirement, including a requirement that an instrument be published in the Gazette (Legislation Act, ss 11(4) and 56).

Notifiable instruments

According to the explanatory memorandum for the Acts and Instruments (Framework Reform) Bill 2014, notifiable instruments are 'intended to include instruments which are not appropriate to register as legislative instruments, but for which public accessibility is desirable'.

A notifiable instrument is:

• an instrument made in exercise of a power given by a primary law to do something by notifiable instrument
• a commencement instrument for an Act or instrument
• an instrument made under a power given by law or delegated by Parliament, other than a legislative instrument, registered as a notifiable instrument
• an instrument made under a power given by law or delegated by Parliament, other than a legislative instrument, that amends a notifiable instrument (Legislation Act, s 11).

Notifiable instruments are not subject to parliamentary scrutiny or sunsetting and do not require an explanatory statement.

Other changes relating to instruments

The special disallowance regime for certain non-legislative instruments made under Defence portfolio legislation (currently in s 46B of the AI Act) will be repealed.

The Attorney-General's power to certify whether an instrument is a legislative instrument will be replaced by powers under ss 8(6)(b) and 10(1)(c) of the Legislation Act to prescribe by regulation that a particular instrument is or is not a legislative instrument.

Section 14 of the Legislation Act will provide a mechanism by which instruments may incorporate by reference a form to be used for the purposes of an Act or an instrument.

AGS gave advice on various aspects of the Acts and Instruments Act during its development.

For further information please contact:

Attorney-General's Department

If you have further questions about the implications of the Acts and Instruments Act for your agency's operations, please contact the Administrative Law and Legislative Frameworks Section of the Attorney-General's Department:

Admin.Law@ag.gov.au

Office of Parliamentary Counsel

If you have further questions about the operation of the Register, please contact the Office of Parliamentary Counsel:

aasha.swift@opc.gov.au or

lodge@legislation.gov.au (from 5 March 2016).

Important: The material in Express law is provided to clients as an early, interim view for general information only, and further analysis on the matter may be prepared by AGS. The material should not be relied upon for the purpose of a particular matter. Please contact AGS before any action or decision is taken on the basis of any of the material in this message.