Worldwide: Review Of The Legislative Instruments Act

Last Updated: 15 September 2008
Article by Philip Harrison

Key Points

  • 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 [2007] 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.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.