- The Legislative Instruments Act 2003 (Cth) has had a significant impact on the rule-making of Commonwealth agencies over the last three and a half years.
- Look forward to changes to the Act in the year ahead.
The Legislative Instruments Act 2003 (Cth) came into effect on 1 January 2005. It introduced a comprehensive regime for the making, registration and publication of legislative instruments on the Federal Register of Legislative Instruments (FRLI), together with dealing with parliamentary scrutiny and sun-setting of Commonwealth delegated legislation.
The Act also substantially re-enacted those parts of the Acts Interpretation Act 1901 (Cth) that dealt with regulations and disallowable instruments, and extended their operation to all legislative instruments.
In a nutshell, the Act now requires all legislative instruments to be registered, and made publicly available through registration, on the FRLI. Following their registration, legislative instruments are presented to the Parliament.
Background to the review
Section 59 of the Act required that, by 31 March 2008, the Attorney-General appoint persons to a body to review all aspects of the operation of the Act, together with any other related matters that the Attorney-General specified.
On 25 March 2008, the Attorney-General, the Hon Robert McClelland MP, announced the appointment of the Legislative Instruments Act Review Committee, comprising Tony Blunn AO (former Secretary to the Attorney-General's Department), Ian Govey (current Deputy Secretary of that Department), and John McMillan (Commonwealth Ombudsman).
The Committee is required to consider and report on:
- the extent to which the objectives of the Act have been realised;
- the factors, if any, which have limited achievement of the Act's objectives;
- the extent to which the objectives of the Act are still appropriate; and
- how performance against those objectives might be improved.
The Attorney-General also asked the Committee to consider and report on a number of specific issues, including relevant recommendations of Rethinking Regulation, the Banks report of January 2006, and of the Senate Standing Committee on Regulations and Ordinances, in its October 2003 report on the Legislative Instruments Bill 2003.
The Committee released an issues paper for public comment on 9 April 2008, and subsequently met with a number of stakeholders. Its issues paper, 2008 Review of the Legislative Instruments Act 2003, together with a review of a number of the submissions received in response to the Issues Paper, provide some indications of the likely changes to the Act in the year ahead.
Likely changes to the Act
The Act requires that the Attorney-General receive the Committee's written report by 31 March 2009, and table that report in the Parliament within six sitting days of receipt. However, the Committee has announced that it intends to report in the second half of 2008. So, changes to the Act may be expected in the year ahead.
The Committee's review of the Act, of course, will only lead to changes to the Act following action by the Government. We expect three changes to the Act to follow from the review:
- Greater clarity about what is, or is not, a legislative instrument
The Act currently fixes on the sometimes elusive concept of an "instrument of legislative character", which requires registration. However, legal opinions sometimes differ on whether, or not, something is of a legislative character.
For example, in Roche Products Pty Limited v National Drugs and Poisons Schedule Committee  FCA 1352, the Federal Court decided that an instrument was of a legislative character, where rules already set out in an Act were to apply, even though the instrument itself did not contain any rules. Unfortunately, to that time, instruments of that kind had been widely thought not to require registration.
The consequence is that instruments of a like kind, made since the commencement of the Act, may not be enforceable - and, those made before the commencement of the Act may be taken to have been repealed! Consequently, work around the definition of a "legislative instrument", hopefully bringing further clarity to that term, may be expected.
- Expansion in content of the Federal Register of Legislative Instruments
While the FRLI currently contains more than 37,000 legislative instruments, it does not necessarily include the full text of the law. Under the Act, a legislative instrument may operate by applying the text of another document, even without setting out the text of that document (although section 41 confers a power on the Parliament to call for material otherwise incorporated by reference).
As a practical matter, some legislative instruments mandate compliance with documents, not only not available on the FRLI, but not freely available in Australia - such as international standards.
Consequently, it may well be that rule-makers will not only be required to publish their legislative instruments on the FRLI - and, if not publish, then at least make documents incorporated by reference more easily available to the public.
- Higher standards in relation to drafting surrounding legislative instruments
Section 16 of the Act requires the Secretary to the Attorney-General's Department to cause steps to be taken to promote the legal effectiveness, clarity and intelligibility of legislative instruments. However, the Act is silent on drafting standards for the preparation of explanatory statements and compilations.
As the Committee observed in its Issues Paper, experience has shown that the quality of explanatory statements and compilations provided by rule-makers can vary considerably. Yet, such accompanying material forms an important part of the FRLI, established under the Act.
It may be expected that some amendment of the Act will follow, imposing obligations on the Attorney-General's Department to ensure, if not encourage, high standards in the preparation of explanatory statements and compilations.
In any case, changes may be expected to the Act, in the year ahead, with a further impact on the rule-making of Commonwealth agencies.
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