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This Act may be cited as the Legislation Act 2003.
Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, on the day or at the time specified in column 2 of the table.
Commencement information | ||
|---|---|---|
Column 1 | Column 2 | Column 3 |
Provision(s) | Commencement | Date/Details |
1. Sections 1, 2 and 2A and anything in this Act not elsewhere covered by this table | The day on which this Act receives the Royal Assent | 17 December 2003 |
2. Sections 3 to 62 | A single day fixed by Proclamation, subject to subsections (3) and (4) | 1 January 2005 |
3. Schedule 1 | Immediately after the commencement of Schedule 1 to the Legislative Instruments (Transitional Provisions and Consequential Amendments) Act 2003 | 1 January 2005 |
This table relates only to the provisions of this Act as originally passed by the Parliament and assented to. It will not be expanded to deal with provisions inserted in this Act after assent.
Column 3 of the table is for additional information that is not part of this Act. This information may be included in any published version of this Act.
The date fixed by Proclamation for the purposes of item 2 of the table must be a first day of January or a first day of July occurring after the day on which this Act receives the Royal Assent.
If the provisions covered by item 2 of the table do not commence under subsection (1) within the period of 12 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day of January or of July, whichever next follows the end of that period.
The object of this Act is to provide a comprehensive regime for the management of Acts and instruments by:
establishing the Federal Register of Legislation as a permanent repository of versions (including authorised versions) of Acts, legislative instruments, notifiable instruments and compilations, together with associated documents and information; and
enabling the First Parliamentary Counsel to make editorial changes and some other changes in preparing compilations of Acts, legislative instruments and notifiable instruments, if those changes do not change the effect of the Acts or instruments; and
encouraging rule‑makers to undertake appropriate consultation before making legislative instruments; and
encouraging high standards in the drafting of legislative instruments and notifiable instruments to promote their legal effectiveness, their clarity and their intelligibility to anticipated users; and
improving public access to Acts and instruments; and
establishing improved mechanisms for Parliamentary scrutiny of legislative instruments; and
automatically repealing spent legislative instruments and notifiable instruments (or provisions of those instruments) that merely provide for the amendment, repeal or commencement of Acts or other instruments; and
establishing mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed; and
enabling regulations to be made under this Act amending or repealing legislative instruments and notifiable instruments in some circumstances.
This Act provides for public access to Commonwealth Acts, legislative instruments and notifiable instruments. The Act also regulates other matters relating to legislative instruments and notifiable instruments.
Acts, legislative instruments and notifiable instruments, compilations and associated documents and information are registered on the Federal Register of Legislation. The public has online access (through an approved website) to authorised versions of registered Acts, instruments and compilations, and to associated documents and information.
The First Parliamentary Counsel maintains the Register and the approved website. The First Parliamentary Counsel is given the power to make editorial changes and some other changes to registered Acts and instruments in preparing compilations, if those changes do not change the effect of the Acts or instruments.
For legislative instruments and notifiable instruments, the Act deals with commencement, interpretation, incorporation of external material by reference and drafting standards.
Rule‑makers for legislative instruments must undertake appropriate and reasonably practicable consultation before the instruments are made. Generally, legislative instruments must be tabled in both Houses of Parliament and are generally subject to disallowance by either House.
Legislative instruments and notifiable instruments (or provisions of those instruments) are automatically repealed if they merely provide for the amendment, repeal or commencement of Acts or other instruments. Legislative instruments are generally repealed automatically (sunsetted) no more than 10 years after being registered.
This Act extends to Norfolk Island.
In this Act:
amend: see subsection 5(1).
approved website: see section 15C.
authorised version, of a registered law or explanatory statement: see section 15ZA.
commencement instrument, in relation to an Act, legislative instrument or notifiable instrument, means an instrument providing solely for the commencement of:
the Act or instrument; or
a provision of the Act or instrument.
A Proclamation providing solely for the commencement of an Act.
compilation, of an Act, legislative instrument or notifiable instrument, is a document showing the text of the Act or instrument:
as amended (if at all) and in force on a day (the compilation date) stated in the document; or
as the Act or instrument would be amended and in force on a day (the compilation date) stated in the document, by amendments that have not commenced, if the document indicates that the amendments have not commenced; or
as the Act or instrument is, or would be, modified by an Act or an instrument, and in force on a day (the compilation date) stated in the document.
See Part 2 of Chapter 2 for the registration of compilations.
compilation date: see the definition of compilation in this section.
disallowable legislative instrument means a legislative instrument to which section 42 applies.
Section 42 provides for the parliamentary disallowance of legislative instruments. Section 42 does not apply to some legislative instruments (see section 44).
discretionary compilation event, for an Act, legislative instrument or notifiable instrument: see section 15Q.
editorial change, in relation to an Act, legislative instrument or notifiable instrument: see section 15X.
enabling legislation, in relation to a legislative instrument or notifiable instrument, means the primary law that authorises the making of the instrument.
explanatory statement for a legislative instrument: see section 15J.
Federal Register of Legislation means the register established and maintained under section 15A.
First Parliamentary Counsel means the person appointed to the position of First Parliamentary Counsel under subsection 4(1) of the Parliamentary Counsel Act 1970.
initial explanatory statement: see section 15J.
instrument means any writing or other document, and includes an instrument in electronic form.
legislative instrument: see section 8.
This term has the same meaning when used in other Acts and instruments: see the definition of legislative instrument in section 2B of the Acts Interpretation Act 1901.
making, in relation to an instrument, means the signing, sealing or other endorsement of the instrument by the person or body empowered to make it.
modify: see subsection 5(2).
notifiable instrument: see section 11.
This term has the same meaning when used in other Acts and instruments: see the definition in section 2B of the Acts Interpretation Act 1901.
Office of Parliamentary Counsel means the office established by subsection 2(1) of the Parliamentary Counsel Act 1970.
power delegated by the Parliament: an instrument made under a power delegated by the Parliament includes:
an instrument made under a power delegated by the Parliament to a person or body and then, under the authority of the Parliament, further delegated by that person or body to another person or body; and
an instrument that may be made under a power delegated by the Parliament as well as under a power given otherwise by law.
An instrument made under an Act as well as a prerogative power.
primary law means an Act or an instrument made under an Act, or a provision of an Act or an instrument made under an Act.
register means register on the Federal Register of Legislation.
registered law or explanatory statement: see section 15Z.
repeal, in relation to an instrument or a provision of an instrument, includes revoke or rescind the instrument or provision.
Section 5 defines amend, for a provision of an instrument, to include the repeal of a provision of the instrument.
replacement explanatory statement: see section 15J.
required compilation event, for an Act, legislative instrument or notifiable instrument: see section 15Q.
responsible person: see section 6.
rule‑maker: see section 6.
rules means rules made by the First Parliamentary Counsel under section 61A.
These rules are legislative instruments. Regulations may also be made for the purposes of this Act (see section 62).
supplementary explanatory statement: see section 15J.
text includes any writing.
See the definition of writing in section 2B of the Acts Interpretation Act 1901.
In this Act, amend includes:
for an Act or instrument—repeal, omit, insert, substitute, renumber or relocate a provision of the Act or instrument; and
for a provision of an Act or instrument—any of the following:
repeal or omit the provision (or a part of it);
substitute another provision for the provision (or a part of it);
insert another provision into the provision (or a part of it);
renumber the provision (or a part of it);
relocate the provision (or a part of it); and
for an Act or instrument, or a provision of an Act or instrument—amend by implication; and
for an Act or instrument, or a provision of an Act or instrument—change its text in any other way.
Repeal, in relation to a provision of an instrument, includes revoke or rescind the provision (see the definition of repeal in section 4).
For the purposes of Part 2 of Chapter 2 (registration of compilations), an Act or instrument is amended by an Act or instrument, or a provision of an Act or instrument, when the amending Act or provision commences (see subsection 15Q(3)).
In this Act, modify an Act or instrument means modify the operation of the Act or instrument without amending its text.
Rule‑makers
In this Act, rule‑maker, for an instrument, means:
for an instrument made by the Governor‑General that is made under enabling legislation (whether or not it may also be made under any other power)—the Minister currently responsible for administering the provision of the enabling legislation under which the instrument is made; or
for an instrument made by the Governor‑General, in any other case—the Prime Minister, or a Minister prescribed by regulation for the purposes of this paragraph; or
for an instrument made by a person other than the Governor‑General—a person currently authorised to make the instrument.
Responsible persons
In this Act, responsible person means:
for an Act or a provision of an Act—the Minister currently responsible for administering the Act or provision; or
for an instrument—the rule‑maker for the instrument.
If more than one Minister is currently responsible for administering an Act, or a provision of an Act:
each of those Ministers is a responsible person for the Act or provision (as the case may be); and
the performance of a function or duty under this Act (in relation to the Act or provision administered) by any of the Ministers discharges the function or duty.
What are legislative instruments?
Generally, the following are legislative instruments:
• an instrument described or declared by a law (including this Act) to be a legislative instrument;
• an instrument registered on the Federal Register of Legislation as a legislative instrument;
• an instrument made under a power delegated by the Parliament that determines the law or alters its content.
However, an instrument is not a legislative instrument if an Act (or a regulation under this Act) so provides.
What are notifiable instruments?
Generally, the following are notifiable instruments:
• an instrument described or declared by a law (including this Act or a regulation under this Act) to be a notifiable instrument;
• a commencement instrument;
• an instrument (other than a legislative instrument) that is registered on the Federal Register of Legislation as a notifiable instrument.
Generally, unlike legislative instruments, notifiable instruments are not subject to parliamentary scrutiny, nor are they subject to automatic repeal 10 years after registration.
Other key concepts
A legislative instrument or notifiable instrument commences on the day after the instrument is registered, or on another day provided by the instrument. Generally, the instrument does not apply retrospectively if that would adversely affect rights or impose liabilities.
Generally, the same rules apply to the interpretation of legislative instruments and notifiable instruments as apply to the interpretation of Acts. Some special rules also apply to the construction of instruments.
There are restrictions on the extent to which legislative instruments or notifiable instruments can incorporate matters by reference to external documents.
A legislative instrument is an instrument to which subsection (2), (3), (4) or (5) applies.
Instruments that can be legislative instruments may be described by their enabling legislation in different ways, for example as regulations, rules, ordinances or determinations.
Primary law provides for something to be done by legislative instrument
If a primary law gives power to do something by legislative instrument, then:
if the thing is done, it must be done by instrument; and
that instrument is a legislative instrument.
A primary law provides that “The Minister may, by legislative instrument, determine licence conditions for the purposes of this section.”.
A primary law provides as follows:
“(1) The Chief Executive may, by instrument, determine licence conditions.
The Chief Executive may, by instrument, exempt a person from the requirement under this Act to hold a licence.
An instrument made by the Chief Executive under subsection (1) or (2) is a legislative instrument.”.
Instruments registered on the Federal Register of Legislation
An instrument made under a power delegated by the Parliament is a legislative instrument if it is registered as a legislative instrument.
An instrument made under a power delegated by the Parliament may be a legislative instrument because it is registered as a legislative instrument, whether or not it is a legislative instrument because of another provision of this section.
Instruments that determine or alter the law etc.
An instrument is a legislative instrument if:
the instrument is made under a power delegated by the Parliament; and
any provision of the instrument:
determines the law or alters the content of the law, rather than determining particular cases or particular circumstances in which the law, as set out in an Act or another legislative instrument or provision, is to apply, or is not to apply; and
has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.
Instruments declared to be legislative instruments
An instrument is a legislative instrument if it is declared by section 10 or 57A to be a legislative instrument.
Section 10 declares regulations and some other instruments to be legislative instruments. Section 57A declares some instruments to be legislative instruments that were made under a power delegated by the Parliament before 1 January 2005, when the substantive provisions of this Act commenced.
Instruments that are not legislative instruments
Despite subsections (4) and (5), an instrument is not a legislative instrument if it is:
declared by an Act not to be a legislative instrument; or
prescribed by regulation for the purposes of this paragraph.
However, subsection (6) does not apply to an instrument that is a legislative instrument under subsection (3) by registration.
Despite anything else in this section, the following are not legislative instruments, and cannot become legislative instruments under subsection (3) (by being registered as legislative instruments):
an instrument that is a notifiable instrument because of subsection 11(1) (primary law gives power to do something by notifiable instrument);
a commencement instrument;
a compilation of a legislative instrument or notifiable instrument;
rules of court or a compilation of rules of court;
an explanatory statement for a legislative instrument, or rules of court mentioned in paragraph (d).
Rules of court may, however, be registered under this Act, and may be otherwise treated as if they were legislative instruments by their enabling legislation.
No implication of legislative character (or otherwise)
The fact that an instrument is a legislative instrument because of subsection 8(2), (3) or (5) does not imply that the instrument is, or must be, of legislative character (within the ordinary meaning of that term).
The fact that an instrument is not a legislative instrument because of subsection 8(6) does not imply that the instrument is not, or must not be, of legislative character (within the ordinary meaning of that term).
No inference for other instruments
In determining whether an instrument made under a provision of a primary law is a legislative instrument under subsection 8(4), no inference may be drawn from the fact that an instrument made under another provision of that primary law, or any other primary law, is a legislative instrument, or is not a legislative instrument.
In determining whether a Ministerial direction under a provision of a primary law is a legislative instrument, no inference may be drawn from the fact that a Ministerial direction under another provision of the primary law is described as a legislative instrument.
For the purposes of subsection 8(5), each of the following is a legislative instrument:
a regulation or Proclamation (other than a Proclamation that is a commencement instrument) made under a power delegated by the Parliament;
a Territory Ordinance covered by subsection (2), or a regulation, rule or by‑law under such an Ordinance;
an instrument prescribed by regulation for the purposes of this paragraph;
an instrument that includes a provision that amends or repeals another legislative instrument.
Commencement instruments, which may be Proclamations, are notifiable instruments: see section 11.
The following Territory Ordinances are covered by this subsection:
an Ordinance made under a power delegated by the Parliament in an Act providing for the government of a non‑self‑governing Territory;
an Ordinance made under subsection 12(1) of the Seat of Government (Administration) Act 1910 that has not become an enactment (as defined in the Australian Capital Territory (Self‑Government) Act 1988).