The Acts and Instruments (Framework Reform) Act 2015 (Cth) (Framework Reform Act) brings together requirements relating to the registration and publication of Commonwealth legislation and legislative instruments. Government agencies should be aware of the changes the legislation has introduced when imposing or complying with publication requirements for a wide variety of government instruments.
The Legislative Instruments Act 2005 (Cth) introduced a comprehensive regime, which included establishing a common approach to accessing, interpreting and scrutinising all forms of legislative instruments. Further unification and clarification was recommended in a review of the Legislative Instruments Act in 2008, and the Framework Reform Act is in response to this.
The Framework Reform Act's aim is to extend the availability of Acts and instruments. This has been achieved through the merging of publication and registration requirements (which previously involved the Commonwealth Acts Database and Federal Register of Legislative Instruments) into the Federal Register of Legislation. The Register will now become the authoritative source for Commonwealth legislation, legislative instruments and explanatory statements, as well as a new category of notifiable instruments. Further, to reflect these changes, the Legislative Instruments Act will be renamed the Legislation Act. The changes come into effect upon proclamation or on 5 March 2016.
The Framework Reform Act's amendments introduce a new form of notifiable instrument. Notifiable instruments are generally administrative in nature and interpreted using the same principles applied to legislation and legislative instruments.
They will either be expressly provided for in legislation, provide solely for the commencement of legislation or legislative or notifiable instruments, or are registered as a notifiable instrument. Where the instrument provides for the commencement of an Act or another instrument, there will be no need to notify First Parliamentary Counsel.
Notifiable instruments should be lodged for registration as soon as practicable after they are made. However, unlike legislative instruments, failing to register notifiable instruments does not affect their enforceability. They are not subject to sunsetting requirements or disallowance, unless otherwise provided for in legislation.
Registering a notifiable instrument provides a variety of benefits. It enables a permanent public record of the instrument to be accessed and allows for authorised versions of the instrument to be made. Registering notifiable instruments also adds to the Federal Register of Legislation's value as a central repository for instruments affecting the operation of legislative schemes.
Consequently, registering legislative or notifiable instruments will now be taken to meet any publication or notification requirements (including gazettal) in Acts or other instruments, reducing the number of different publication methods being used. Agencies should consider whether alternative methods of accessing information should continue to be used when complying with other publishing requirements, including operational information published under the Freedom of Information Act 1982 (Cth).
The definition of legislative instrument will be changed to remove the circular reference to "having legislative character". Instruments described in legislation as "legislative instruments or otherwise made in the exercise of power delegated in legislation that determines or alters the law so as to create, remove or affect interests, rights or obligations," have to be registered as legislative instruments or they will not be enforceable. It will no longer be possible for an instrument itself to declare that other instruments that it creates do not have to be registered. Registration requirements can now only be removed through express legislative provisions or if it has been prescribed by regulations.
At the moment, legislative instruments are not able to take effect before their registration if their retrospective operation would have a detrimental effect on a person's rights or if they would impose liabilities. This will be amended to remove any potential uncertainty over whether a detrimental effect has occurred. Unless there is a contrary provision in legislation, only the adverse effect of any retrospective operation will now be prevented, with the instrument otherwise continuing to have retrospective effect. Agencies should consider the possible retrospective operation of instruments made under legislation to ensure that any intended effect is clearly provided for in legislation.
To maintain the Register's accuracy, the amendments will require the rule-maker to prepare a compilation after certain compilation events, such as disallowance or an amendment to the instruments. There is also provision for the First Parliamentary Counsel to make editorial changes to Acts and instruments. This will go beyond the current provision for the correction of errors in the electronic register to include modifying the text of Acts and instruments. Any changes must not change the effect of the Act or instrument, but will be treated as if they were an amendment to the Act or instrument that commenced on the day the compilation was registered.
The amendments will clarify consultation requirements to reflect the nature of the proposed legislative instrument. Consultation may be necessary even where the proposed instrument will not affect business or competition. The list of circumstances where consultation may not be necessary will be removed. There are no express consultation requirements for notifiable instruments, although general consultation requirements in the Australian Guide to Regulation will apply.
There will also be provision for forms to be authorised or required to be used as they exist from time to time, provided they are registered as a notifiable instrument or otherwise publicly available.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.