Legislative Instruments Act 2003

No. 139, 2003

An Act relating to the making, registration, Parliamentary scrutiny and periodic repeal of legislative instruments, and for related purposes

[Assented to 17 December 2003]

The Parliament of Australia enacts:

Part 1—Preliminary

1 Short title

This Act may be cited as the Legislative Instruments Act 2003.

2 Commencement

(1) 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

Note: 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.

(2) 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.

(3) 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.

(4) 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.

2A Schedule(s)

Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

3 Object

(1) The object of this Act is to provide a comprehensive regime for the management of Commonwealth legislative instruments by:

(a) establishing the Federal Register of Legislative Instruments as a repository of Commonwealth legislative instruments, explanatory statements and compilations; and

(b) encouraging rule‑makers to undertake appropriate consultation before making legislative instruments; and

(c) encouraging high standards in the drafting of legislative instruments to promote their legal effectiveness, their clarity and their intelligibility to anticipated users; and

(d) improving public access to legislative instruments; and

(e) establishing improved mechanisms for Parliamentary scrutiny of legislative instruments; and

(f) establishing mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed.

4 Definitions

(1) In this Act, unless the contrary intention appears:

ADJR Act means the Administrative Decisions (Judicial Review) Act 1977.

certified true copy, in relation to a legislative instrument, means a copy of the instrument certified to be a true copy of the full text of the instrument as it was made.

commencing day means the day on which section 20 of this Act commences.

compilation, in relation to a legislative instrument that has, with effect from a particular time, been amended by an Act or Acts or by another legislative instrument or legislative instruments, means the first‑mentioned legislative instrument as amended and in force at that time.

enabling legislation, in relation to a legislative instrument, means the Act or legislative instrument, or the part of an Act or of a legislative instrument, that authorises the making of the legislative instrument concerned.

explanatory statement, in relation to a legislative instrument, means a statement that:

(a) is prepared by the rule‑maker; and

(b) explains the purpose and operation of the instrument; and

(c) if any documents are incorporated in the instrument by reference—contains a description of the documents so incorporated and indicates how they may be obtained; and

(d) if consultation was undertaken under section 17 before the instrument was made—contains a description of the nature of that consultation; and

(e) if no such consultation was undertaken—explains why no such consultation was undertaken; and

(f) contains such other information as is prescribed.

inappropriate use of gender‑specific language, in relation to a legislative instrument, means use of such language in the legislative instrument in circumstances where it is not necessary to identify persons by their sex.

instrument does not include an explanatory statement or a compilation.

legislative instrument has the meaning given by section 5 and includes instruments that are declared to be legislative instruments under section 6 but does not include:

(a) instruments that are declared not to be legislative instruments under section 7; or

(b) instruments to which section 9 applies.

lodge, in respect of a legislative instrument, explanatory statement, compilation or other document required to be lodged under Part 4, means lodge in such manner, and in such form or forms, as this Act or the regulations specify.

making, in relation to an instrument that will become, or that is, a legislative instrument, means the signing, sealing or other endorsement of the instrument by the person or body empowered to make it whereby it becomes or became that legislative instrument.

original legislative instrument means:

(a) the legislative instrument made by the rule‑maker; or

(b) an instrument prescribed by the regulations.

Note: Examples of a legislative instrument made by the rule‑maker are a signed or sealed instrument.

register, in relation to an instrument, an explanatory statement, or a compilation, means recording the instrument, explanatory statement or compilation in the Register in electronic form.

responsible Minister, in relation to a legislative instrument or a proposed legislative instrument, means the Minister administering the enabling legislation for that instrument.

rule‑maker has the meaning given by subsection (3).

Secretary means the Secretary of the Department.

State includes the Australian Capital Territory and the Northern Territory.

working day means a day that is not a Saturday, a Sunday or a public holiday in the Australian Capital Territory.

(2) In this Act, if an act or thing is required to be done within a specified number of working days after a particular event, that act or thing can be done at any time after the event during normal business hours:

(a) on the day on which the event occurred (if it is a working day); or

(b) on a working day included in the specified number of working days next following that day.

(3) In this Act, unless the contrary intention appears:

(a) a reference to a rule‑maker, in relation to a legislative instrument or a proposed legislative instrument, is a reference to:

(i) if the legislative instrument is, or will be, authorised to be made by the Governor‑General and the reference appears in section 13—the Governor‑General; and

(ii) if the legislative instrument is, or will be, authorised to be made by the Governor‑General and the reference appears in any other provision of this Act—the responsible Minister; and

(iii) if the legislative instrument is, or will be, authorised to be made by a person other than the Governor‑General or by a body—that other person or body; and

(b) a reference in this Act to a rule‑maker who makes, or proposes to make, a legislative instrument includes a reference to the person who would be taken to be the rule‑maker of the instrument (if the instrument were made) whether or not that person actually makes the instrument concerned.

5 Definition—a legislative instrument

(1) Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing:

(a) that is of a legislative character; and

(b) that is or was made in the exercise of a power delegated by the Parliament.

(2) Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:

(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and

(b) it 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.

(3) An instrument that is registered is taken, by virtue of that registration and despite anything else in this Act, to be a legislative instrument.

(4) If some provisions of an instrument are of a legislative character and others are of an administrative character, the instrument is taken to be a legislative instrument for the purposes of this Act.

6 Instruments declared to be legislative instruments

Without limiting the generality of subsection 5(1), each of the following instruments is, subject to sections 7 and 9, a legislative instrument:

(a) an instrument:

(i) made in the exercise of a power delegated by the Parliament before, on or after the commencing day; and

(ii) described as a regulation by the enabling legislation;

(b) an instrument, other than a regulation:

(i) made in the exercise of a power delegated by the Parliament before the commencing day; and

(ii) required to be printed and sold as a statutory rule under subsection 5(1) of the Statutory Rules Publication Act 1903 as in force at any time before the commencing day;

(i) made in the exercise of a power delegated by the Parliament before, on or after the commencing day in an Act providing for the government of a non‑self‑governing Territory; and

(ii) described in that Act as an Ordinance or as a rule, regulation or by‑law made under such an Ordinance;

(d) an instrument made in the exercise of a power delegated by the Parliament before the commencing day and, in accordance with a provision of the enabling legislation:

(i) declared to be a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 as in force at any time before the commencing day; or

(ii) otherwise able to be disallowed under Part XII of the Acts Interpretation Act 1901 as in force at any time before the commencing day;

(e) a Proclamation made before, on or after the commencing day under enabling legislation.

7 Instruments declared not to be legislative instruments

(1) An instrument is not a legislative instrument for the purposes of this Act if:

(a) it is included in the table below; or

(b) it is made under an Act or a disallowable legislative instrument:

(i) that first authorised the making of the first‑mentioned instrument on or after the commencing day; and

(ii) that declared the first‑mentioned instrument not to be a legislative instrument for the purposes of this Act.

Instruments that are not legislative instruments for the purposes of the Act
Item	Particulars of instrument
1	Instruments (other than regulations and other instruments that, immediately before the commencing day, are disallowable) made under the Air Navigation Act 1920, or under the regulations made under that Act, relating to aviation security
2	Commissioner’s orders under section 38 of the Australian Federal Police Act 1979
3	General Orders made under section 12 of the Australian Protective Service Act 1987
4	Guidelines under section 8A of the Australian Security Intelligence Organisation Act 1979
5	Ministerial directions to: (a) a Commonwealth company within the meaning of section 34 of the Commonwealth Authorities and Companies Act 1997; or (b) a Commonwealth authority within the meaning of section 7 of that Act; other than any such direction: (c) that comprises a notification under section 28 or 43 of that Act; or (d) that is required to be laid before the Houses of the Parliament under the legislation that authorises the giving of the directions; or (e) the full text of which is required to be published in the Gazette or elsewhere under that legislation
6	Instruments (other than regulations and other instruments that, immediately before the commencing day, are disallowable) that are made under the Corporations Act 2001 and that, in relation to: (a) a specified person (other than a person specified by membership of a class) or to persons associated with that specified person; or (b) a specified facility (other than a facility specified by membership of a class); or (c) a specified financial product (other than a product specified by membership of a class); have the effect of: (d) exempting the person, facility or product from the rules under the Act; or (e) modifying the operation of the rules under the Act in their application to the person, facility or product
7	Determinations made under section 273 of the Customs Act 1901
8	Instructions under section 9A of the Defence Act 1903
9	Determinations made under section 58B or 58H of the Defence Act 1903
10	Legal Services Directions issued under paragraph 55ZF(1)(b) of the Judiciary Act 1903
11	Schedules to the Murray‑Darling Basin Agreement made under clause 50 or 134 of that Agreement (being the Agreement approved under section 5 of the Murray‑Darling Basin Act 1993)
12	Designations, or revocations of designations, made under section 11 of the Payment Systems (Regulation) Act 1998
13	Instruments made under section 72 of the Public Service Act 1999
14	Laws of a self‑governing Territory, other than: (a) Ordinances made under subsection 12(1) of the Seat of Government (Administration) Act 1910 that have not become enactments (as defined in the Australian Capital Territory (Self‑Government) Act 1988); or (b) Ordinances made under section 27 of the Norfolk Island Act 1979; or (c) rules, regulations and by‑laws made under Ordinances described in paragraph (a) or (b)
15	Instruments (other than regulations and other instruments that, immediately before the commencing day, are disallowable) that are made under the Superannuation Industry (Supervision) Act 1993 and that, in relation to: (a) a specified person (other than a person specified by membership of a class) or to persons associated with that specified person; or (b) a specified financial product (other than a product specified by membership of a class); have the effect of: (c) exempting the person or product from the rules under the Act; or (d) modifying the operation of the rules under the Act in their application to the person or product
16	Private rulings given under the Taxation Administration Act 1953
17	Public rulings made under the Taxation Administration Act 1953
18	Awards and agreements under the Workplace Relations Act 1996
19	Orders made by the Australian Industrial Relations Commission in proceedings under the Workplace Relations Act 1996
20	Instruments that relate to terms and conditions of employment of persons, or to the terms and conditions of service of persons, as members or special members of the Australian Federal Police, other than: (a) regulations; or (b) instruments that are declared to be disallowable instruments under the enabling legislation; or (c) instruments that are made under section 23 or subsection 24(3) of the Public Service Act 1999; or (d) instruments that are made under section 23 or subsection 24(3) of the Parliamentary Service Act 1999; or (e) instruments that are required to be laid before the Parliament under subsection 7(7) of the Remuneration Tribunal Act 1973
21	Instruments that comprise, in their entirety, directions to delegates
22	Laws of a State or self‑governing Territory that apply in a non‑self‑governing Territory and instruments made under those laws
23	Ordinances of the former Colony of Singapore that apply in a non‑self‑governing Territory and instruments made under those Ordinances
24	Instruments that are prescribed by the regulations for the purposes of this table

(2) The inclusion of an instrument in the table in subsection (1) does not imply that an instrument of that kind would, if it were not so included, be a legislative instrument under subsection (1).

(3) If:

(a) the making of an instrument is authorised before the commencing day; and

(b) the instrument is of a kind included in the table in subsection (1) or is not otherwise a legislative instrument; and

(i) to have its text, or particulars of its making, published in the Gazette; or

(ii) to be laid before either or both of the Houses of the Parliament without provision for its disallowance;

that requirement is unaffected by this Act whether the instrument is made before, on or after the commencing day.

8 Definition—power delegated by the Parliament

A reference in this Act to a power delegated by the Parliament includes a reference to a power delegated by the Parliament to a rule‑maker and then, under the authority of the Parliament, further delegated by the rule‑maker to another rule‑maker.

9 Rules of court are not legislative instruments

Rules of court for the High Court, the Federal Court of Australia, the Family Court of Australia and the Federal Magistrates Court are not legislative instruments for the purposes of this Act.

Note: Rules of court are treated as if they were legislative instruments by express amendment of the legislation providing for them to be made.

10 Attorney‑General may certify whether an instrument is legislative instrument or not

(1) If a person or body having authority to make instruments of a particular kind is uncertain whether an instrument of that kind:

(a) that was made before the commencing day; and

(b) that is not registered;

is, or is not, a legislative instrument, the person or body may, at any time before the day that would, under Division 3 of Part 4, be the last day for lodging the instrument for registration if it were a legislative instrument, apply, in writing, to the Attorney‑General to determine the matter.

(2) If a person or body having authority to make an instrument of a particular kind:

(a) proposes to make an instrument of that kind on or after the commencing day; and

(b) is uncertain whether an instrument of that kind will be, or will not be, a legislative instrument;

the person or body may apply, in writing, to the Attorney‑General to determine the matter.

(3) The regulations may make provision in relation to the content and form of, and manner of making, applications under subsections (1) and (2).

(4) If application is made to the Attorney‑General in respect of an instrument, or an instrument of a particular kind, the Attorney‑General must:

(a) determine whether that instrument is, or is not, or whether an instrument of that kind will be, or will not be, a legislative instrument; and

(b) issue a certificate, in writing, to that effect, and set out the reasons for that decision in the certificate; and

(5) Subject only to its reconsideration in the circumstance described in subsection 11(1), a certificate given by the Attorney‑General under this section is, for all purposes, conclusive of the question whether the instrument to which the certificate relates is, or is not, or whether an instrument of the kind to which the certificate relates will be, or will not be, a legislative instrument.

(6) A certificate issued under this section is a legislative instrument and, as such, is required under Part 4 to be registered.

11 Reconsideration and review of Attorney‑General’s certificate

(1) If:

(a) the Attorney‑General issues a certificate under section 10 to the effect that a particular instrument is, or is not, or that an instrument of a particular kind will be, or will not be, a legislative instrument; and

(b) the decision to issue the certificate is subsequently reviewed:

(i) by the Federal Court of Australia or the Federal Magistrates Court under the ADJR Act; or

(ii) by the Federal Court of Australia under section 39B of the Judiciary Act 1903; or

(iii) by the High Court of Australia under paragraph 75(v) of the Constitution;

and an order is made by that court to quash or to set aside the decision;

the Attorney‑General must reconsider the matter and issue a replacement certificate.

(2) Despite any provision in a law of the Commonwealth to the contrary, the order of a court referred to in paragraph (1)(b) to quash or set aside the decision to issue a certificate under this section takes effect only from the time immediately before the issue of the replacement certificate.

(3) If the Attorney‑General decides, on reconsideration of the matter:

(a) that an instrument that he or she has certified to be a legislative instrument is not such an instrument; or

(b) that an instrument of a kind that he or she has certified will be a legislative instrument will not be such an instrument;

then, except in relation to an instrument to which subsection 5(3) applies:

(c) that instrument, or an instrument of that kind made after the issue of the original certificate, that would, but for its registration, have been required to be notified in the Gazette, must be so notified as soon as practicable but not later than 3 working days after the issue of the replacement certificate; and

(d) if the instrument is so notified, it is taken for all purposes always to have been notified as required; and

(e) any act or thing done in accordance with the instrument, whether before or after its notification, is validly done.

(4) If the Attorney‑General decides, on reconsideration of the matter:

(a) that an instrument that he or she certified not to be a legislative instrument is such an instrument; or

(b) that an instrument of a kind that he or she has certified will not be a legislative instrument will be such an instrument;

then:

(i) if Division 3 of Part 4 is applicable to the instrument—by the last day for lodgment for registration under that Division; or

(ii) if that Division is not applicable or that day has already passed—as soon as practicable but not later than 3 working days after the issue of the replacement certificate; and

(d) if the instrument is so registered, it is taken, for all purposes of this Act, to have been so registered within the time required by this Act for its registration; and

(e) any act or thing done in accordance with, or in reliance on, the instrument, whether before or after its registration, is taken to have been validly done.

(5) If the Attorney‑General decides, on reconsideration of the matter:

(a) that an instrument that he or she has certified to be a legislative instrument is such an instrument; or

(b) that an instrument of a kind that he or she has certified will be a legislative instrument will be such an instrument;

then:

(d) any registration of that instrument or of an instrument of that kind that is already effected remains effective.

(6) If the Attorney‑General decides, on reconsideration of the matter:

(a) that an instrument that he or she has certified not to be a legislative instrument is not a legislative instrument; or

(b) that an instrument of a kind that he or she has certified will not be a legislative instrument will not be such an instrument;

then:

(c) any requirement for notification in the Gazette of the making of that instrument or of an instrument of that kind is unaffected; and

(d) any notification in the Gazette of the making of that instrument or of an instrument of that kind that is already effected remains effective.

(7) In any case where a court referred to in paragraph (1)(b) makes an order quashing or setting aside a decision to issue a certificate under section 10, the Attorney‑General must:

(a) as soon as practicable after that order is made, notify the person or body having authority to make the instrument, in writing, of the court’s decision; and

(b) as soon as practicable after the issue of a replacement certificate—give a copy of the replacement certificate to the applicant for the original certificate and to the person or body having authority to make the instrument.

(8) A replacement certificate issued under this section is a legislative instrument and, as such, is required under Part 4 to be registered.

(9) Subsection (1) applies in respect of a decision to issue a replacement certificate in the same manner as it applies to the original decision to issue a certificate under section 10.

12 When do provisions of legislative instruments take effect?

(1) Subject to subsection (2), a legislative instrument that is made on or after the commencing day, or a particular provision of such an instrument, takes effect from:

(a) the day specified in the instrument for the purposes of the commencement of the instrument or provision; or

(b) the day and time specified in the instrument for the purposes of the commencement of the instrument or provision; or

(c) the day, or day and time, of the commencement of an Act, or of a provision of an Act, or of the occurrence of an event, that is specified in the instrument for the purposes of the commencement of the instrument or provision; or

(d) in any other case—the first moment of the day next following the day when it is registered.

Note: There are certain instruments that, by virtue of subsection 55(2), are made before, but treated as having been made on, the commencing day.

(2) A legislative instrument, or a provision of a legislative instrument, has no effect if, apart from this subsection, it would take effect before the date it is registered and as a result:

(a) the rights of a person (other than the Commonwealth or an authority of the Commonwealth) as at the date of registration would be affected so as to disadvantage that person; or

(b) liabilities would be imposed on a person (other than the Commonwealth or an authority of the Commonwealth) in respect of anything done or omitted to be done before the date of registration.

(3) The effect of subsections (1) and (2) on a legislative instrument is subject to any contrary provision for commencement of the instrument in the enabling legislation for the instrument if the enabling legislation is an Act or a provision of an Act.

13 Construction of legislative instruments

(1) If enabling legislation confers on a rule‑maker the power to make a legislative instrument, then, unless the contrary intention appears:

(a) the Acts Interpretation Act 1901 applies to any legislative instrument so made as if it were an Act and as if each provision of the legislative instrument were a section of an Act; and

(b) expressions used in any legislative instrument so made have the same meaning as in the enabling legislation; and

(c) any legislative instrument so made is to be read and construed subject to the enabling legislation, and so as not to exceed the power of the rule‑maker.

(2) If any legislative instrument would, but for subsection (1), be construed as being in excess of the rule‑maker’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.

(3) If enabling legislation confers on a rule‑maker the power to make a legislative instrument:

(a) specifying, declaring or prescribing a matter or thing; or

(b) doing anything in relation to a matter or thing;

then, in exercising the power, the rule‑maker may identify the matter or thing by referring to a class or classes of matters or things.

Note: This section has a parallel, in relation to instruments that are not legislative instruments, in section 46 of the Acts Interpretation Act 1901.

14 Prescribing matters by reference to other instruments

(1) If enabling legislation authorises or requires provision to be made in relation to any matter in a legislative instrument, the legislative instrument may, unless the contrary intention appears, make provision in relation to that matter:

(a) by applying, adopting or incorporating, with or without modification, the provisions of any Act, or of any disallowable legislative instrument, as in force at a particular time or as in force from time to time; or

(b) subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at the time when the first‑mentioned legislative instrument takes effect.

(2) Unless the contrary intention appears, the legislative instrument may not make provision in relation to a matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.

Note: This section has a parallel, in relation to instruments that are not legislative instruments, in section 46AA of the Acts Interpretation Act 1901.

15 Effect of repeal of legislative instrument

The repeal of any legislative instrument, or of any provision of a legislative instrument, does not, unless the contrary intention appears in the Act or legislative instrument effecting the repeal:

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of the instrument or provision or anything duly done or suffered under the instrument or provision; or

(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under the instrument or provision; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against the instrument or provision; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment;

and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and any such penalty, forfeiture or punishment may be imposed, as if the repealing Act or instrument had not been enacted or made.

Part 2—Drafting standards

16 Measures to achieve high drafting standards for legislative instruments

(1) To encourage high standards in the drafting of legislative instruments, the Secretary must cause steps to be taken to promote the legal effectiveness, clarity, and intelligibility to anticipated users, of legislative instruments.

(2) The steps referred to in subsection (1) may include, but are not limited to:

(a) undertaking or supervising the drafting of legislative instruments; and

(b) scrutinising preliminary drafts of legislative instruments; and

(d) providing training in drafting and matters related to drafting to officers and employees of other Departments or agencies; and

(e) arranging the temporary secondment to other Departments or agencies of APS employees performing duties in the Department; and

(f) providing drafting precedents to officers and employees of other Departments or agencies.

(3) The Secretary must also cause steps to be taken:

(a) to prevent the inappropriate use of gender‑specific language in legislative instruments; and

(b) to advise rule‑makers of legislative instruments that have already been made if those legislative instruments make inappropriate use of such language; and

Part 3—Consultation before making legislative instruments

17 Rule‑makers should consult before making legislative instruments

(1) Before a rule‑maker makes a legislative instrument, and particularly where the proposed instrument is likely to:

(a) have a direct, or a substantial indirect, effect on business; or

(b) restrict competition;

the rule‑maker must be satisfied that any consultation that is considered by the rule‑maker to be appropriate and that is reasonably practicable to undertake, has been undertaken.

(2) In determining whether any consultation that was undertaken is appropriate, the rule‑maker may have regard to any relevant matter, including the extent to which the consultation:

(a) drew on the knowledge of persons having expertise in fields relevant to the proposed instrument; and

(b) ensured that persons likely to be affected by the proposed instrument had an adequate opportunity to comment on its proposed content.

(3) Without limiting, by implication, the form that consultation referred to in subsection (1) might take, such consultation could involve notification, either directly or by advertisement, of bodies that, or of organisations representative of persons who, are likely to be affected by the proposed instrument. Such notification could invite submissions to be made by a specified date or might invite participation in public hearings to be held concerning the proposed instrument.

Note: The definition of explanatory statement in subsection 4(1) requires that the explanatory statement prepared in respect of each legislative instrument include a description of consultation undertaken or, if there was no consultation, an explanation for its absence.

18 Circumstances where consultation may be unnecessary or inappropriate

(1) Despite section 17, the nature of an instrument may be such that consultation may be unnecessary or inappropriate.

(2) The following are examples of instruments having a nature such that the rule‑maker may be satisfied that consultation is unnecessary or inappropriate:

(a) an instrument that is of a minor or machinery nature and that does not substantially alter existing arrangements; or

(b) an instrument that is required as a matter of urgency; or

(i) to repeal, impose or adjust a tax, fee or charge; or

(ii) to confer, revoke or alter an entitlement; or

(iii) to impose, revoke or alter an obligation; or

(d) an instrument that is required because of an issue of national security; or

(e) an instrument in relation to which appropriate consultation has already been undertaken by someone other than the rule‑maker; or

(f) an instrument that relates to employment; or

(g) an instrument that relates to the management of, or to the service of members of, the Australian Defence Force.

19 Consequence of failure to consult

The fact that consultation does not occur does not affect the validity or enforceability of a legislative instrument.

Part 4—The Federal Register of Legislative Instruments

Division 1—The Register

20 Federal Register of Legislative Instruments

(1) The Secretary is to cause to be maintained a register to be known as the Federal Register of Legislative Instruments.

(1A) The Secretary must cause steps to be taken to ensure that legislative instruments that are registered are available to the public.

(2) The Register comprises, at any time, a database of all legislative instruments, all explanatory statements in relation to legislative instruments made on or after the commencing day, and all compilations in relation to legislative instruments, that have been registered under this Act.

21 Manner of keeping Register

(1) The regulations may prescribe the manner in which the Register is to be kept.

(2) Without limiting the generality of subsection (1), regulations made under that subsection may require that any person required to lodge a legislative instrument for registration must also lodge such information relating to the legislative instrument as the regulations provide, in such form as the regulations provide, to ensure that the Register is as useful as possible to persons wishing to use it.

(3) Without limiting the generality of subsection (1), regulations made under that subsection may provide:

(a) for the manner in which the Register is required to be kept including:

(i) the manner of recording information required to be included in the Register; and

(ii) the manner of altering information required to be included in the Register; and

(b) for giving a unique identifier to each legislative instrument that is registered; and

22 The status of the Register and judicial notice of legislative instruments and compilations

(1) The Register is, for all purposes, to be taken to be a complete and accurate record of all legislative instruments that are included in the Register.

(2) A compilation that is included in the Register and that relates to a particular legislative instrument is to be taken, unless the contrary is proved, to be a complete and accurate record of that legislative instrument as amended and in force at the date specified in the compilation.

(3) In any proceedings, proof is not required about the provisions and coming into operation (in whole or in part) of a legislative instrument as it appears in the Register.

(4) A court or tribunal may inform itself about those matters in any way that it thinks fit.

(5) It is presumed, unless the contrary is proved, that a document that purports to be an extract from the Register is what it purports to be.

(6) If:

(a) subsection (5) applies to a document; and

(b) the document purports to be a copy of, or a copy of a part of, a legislative instrument that was registered on a particular day and at a particular time;

then it is presumed, unless the contrary is proved and subject to the operation of section 36 in the circumstances described in that section, that the legislative instrument was registered on that day and at that time.

23 Rectification of Register

(1) If:

(a) the Secretary becomes aware that the Register is erroneous because of a mistake or omission; and

(b) the Secretary is satisfied that:

(i) so far as legislative instruments are concerned—the error lies in the text, in electronic form, of such a legislative instrument as it appears in the Register and not in the original legislative instrument, or other evidence of the text of that instrument, lodged under subsection 25(2) or 29(3); and

(ii) so far as compilations are concerned—the error lies in the text, in electronic form, of such a compilation as it appears in the Register in that the text does not represent the state of the law that it purports to represent;

the Secretary must arrange for the Register to be altered to rectify the error as soon as possible and annotate the Register as so rectified to explain the nature of the rectification, the date and time it was made and the reason for it.

(2) An alteration of the Register under subsection (1):

(a) does not affect any right or privilege that was acquired, or that accrued, by reason of reliance on the content of the Register before that alteration was made; or

(b) does not impose or increase any obligation or liability that was incurred before that alteration was made.

Division 2—Registration of legislative instruments made, or treated as made, on or after commencing day

24 Legislative instruments required to be registered under this Division

If a legislative instrument:

(a) is made on or after the commencing day; or

(b) is to be treated, under subsection 55(2), as if made on that day;

the legislative instrument must be registered in accordance with this Division.

Note: See subsection 29(2) concerning the lodgment for registration of instruments made before the commencing day that are amended by instruments made on or after that day.

25 Lodgment for registration under this Division

(1) If a legislative instrument is required to be registered under this Division, the rule‑maker must, as soon as practicable after making that legislative instrument, lodge the instrument in electronic form with the Department for registration.

(2) At the time of, or as soon as practicable after, the lodgment of the legislative instrument under subsection (1), the rule‑maker must also lodge:

(a) the original legislative instrument; or

(b) if the rule‑maker cannot comply with paragraph (a)—a certified true copy of the original legislative instrument; or

(i) the rule‑maker cannot comply with paragraph (a) or (b); and

(ii) the enabling legislation required that the full text of the original legislative instrument be published in the Gazette or elsewhere;

the full text of that original legislative instrument as so published; or

(d) if the rule‑maker cannot comply with paragraph (a), (b) or (c)—such other evidence of the text of the original legislative instrument as the Secretary considers acceptable.

26 Explanatory statements

(1) If a legislative instrument is lodged for registration under this Division, the rule‑maker must also lodge for registration, at the same time or as soon as practicable thereafter, the explanatory statement in electronic form that relates to that instrument.

(2) A failure by the rule‑maker to lodge the explanatory statement in relation to an instrument in accordance with subsection (1) does not affect the validity or enforceability of the instrument.

Note: The obligation imposed on a rule‑maker to comply with this section is not affected by the rule‑maker’s compliance with subsection 39(2).

27 Registration under this Division

(1) The Secretary is to cause to be registered each legislative instrument lodged under subsection 25(1) and each explanatory statement lodged under subsection 26(1).

(2) The regulations may specify the procedure to be followed in registering a legislative instrument lodged under subsection 25(1) or an explanatory statement lodged under subsection 26(1).

Note: Section 31 describes what happens if a legislative instrument required to be registered under this Division is not registered as required.

Division 3—Registration of certain legislative instruments made before commencing day

28 Legislative instruments required to be registered under this Division

If:

(a) a legislative instrument was made before the commencing day; and

(b) the legislative instrument is not required to be treated under subsection 55(2) as if it had been made on the commencing day; and

the legislative instrument must, unless it has already been registered, be registered under this Division.

29 Lodgment for registration under this Division

(1) If:

(a) a legislative instrument is required to be registered under section 28; and

(b) the legislative instrument is made during a period referred to in the table below;

the rule‑maker must, unless the regulations otherwise provide, before the day set out in the table in respect of the period, lodge for registration, in electronic form, with the Department:

(d) if the legislative instrument amends another legislative instrument (the principal legislative instrument) that has not already been registered:

(i) the principal legislative instrument; and

(ii) each other legislative instrument (if any) that is required to be registered under this Division and that amends the principal legislative instrument.

Lodgment of legislative instruments made before commencing day
Item	Period within which legislative instrument made	Day before which lodgment required
1	The period of 5 years ending immediately before the commencing day	The first day of the 12th month after the commencing day
2	The period ending immediately before the start of the period referred to in item 1	The first day of the 36th month after the commencing day

(2) If:

(a) a legislative instrument is made on or after the commencing day; and

(b) the legislative instrument amends another legislative instrument (the principal legislative instrument) made before the commencing day that has not already been registered;

the rule‑maker must, unless the regulations otherwise provide, before the day determined in accordance with subsection (4), lodge for registration, in electronic form, with the Department:

(d) any other legislative instrument made before the commencing day that is required to be registered under this Division and that amends the principal legislative instrument.

(3) At the time of, or as soon as practicable after, the lodgment of the legislative instrument, or each legislative instrument, required to be lodged under subsection (1) or (2), the rule‑maker must also lodge:

(a) the original legislative instrument; or

(b) if the rule‑maker cannot comply with paragraph (a)—a certified true copy of the original legislative instrument; or

(i) the rule‑maker cannot comply with paragraph (a) or (b); and

(ii) the enabling legislation required that the full text of the original instrument be published in the Gazette or elsewhere;

the full text of that original legislative instrument as so published; or

(d) if the rule‑maker cannot comply with paragraph (a), (b) or (c)—such other evidence of the text of the original legislative instrument as the Secretary considers acceptable.

(4) For the purposes of subsection (2), the day by which instruments must be lodged for registration is:

(a) the day that would have been determined under subsection (1) if there had been no amendment of the principal legislative instrument (within the meaning of that subsection) after the commencing day; or

(b) the day occurring 28 days, or such longer period as the regulations provide, after the registration of the first‑mentioned legislative instrument in subsection (2);

whichever first occurs.

(5) Subsection 32(3) (which provides for some legislative instruments to continue in force even if they are not lodged for registration as required by this section) does not affect the requirements of this section. This subsection is for the avoidance of doubt.

30 Registration under this Division

(1) The Secretary is to cause to be registered each instrument lodged under section 29.

Note: Section 32 describes what happens if a legislative instrument required to be registered under this Division is not lodged for registration on or before the last day for lodging the instrument for registration.

(2) The regulations may specify the procedure to be followed in registering legislative instruments lodged under section 29.

Division 4—Effect of registration

31 Effect of failure to register a legislative instrument required to be registered under Division 2

(1) A legislative instrument that is required to be registered under Division 2 is not enforceable by or against the Commonwealth, or by or against any other person or body, unless the instrument is registered.

Note: Division 2 deals with the registration of legislative instruments made on or after the commencing day.

(2) If:

(a) a legislative instrument is required to be registered under Division 2; and

(b) because of technical difficulties the instrument is temporarily unable to be so registered;

the Secretary may cause the instrument to be published in full in the Gazette.

(3) If the Secretary causes a legislative instrument to be published in the Gazette in the circumstances referred to in subsection (2):

(a) this Act has effect as if the instrument had been registered at the time when it was published in the Gazette; and

(b) the Secretary must, as soon as practicable after the instrument is able to be entered in the Register, cause the instrument to be so entered with an annotation as to the day and time at which the instrument is taken to have been registered.

32 Effect of failure to lodge for registration a legislative instrument required to be registered under Division 3

(1) This section applies to a legislative instrument if:

(a) the instrument is required to be registered under Division 3; and

(b) the instrument is not lodged for registration on or before the last day for lodging the instrument for registration (the last lodgment day) worked out under section 29.

Note: Division 3 deals with the registration of certain legislative instruments made before the commencing day.

(2) On the day after the last lodgment day, the instrument:

(a) ceases to be enforceable by or against the Commonwealth, or by or against any other person or body; and

(b) is taken to have been repealed by this Act.

(3) Despite subsection (2), and, if the operation of subsection 12(2) would otherwise cause the instrument not to have taken effect, despite that subsection, the instrument is taken to have continued in force after the last lodgment day if:

(a) the instrument is connected with the collection of revenue; and

(b) the Attorney‑General certifies in writing that:

(i) he or she is satisfied that the responsible officer was unaware of the requirement to register the instrument; and

(ii) in the circumstances it was reasonable for the responsible officer to be unaware of the requirement; and

(c) the instrument is lodged for registration within 28 days after the responsible officer becomes aware of the requirement for registration.

(4) For the purposes of subsection (3), the responsible officer for a legislative instrument is:

(a) if the enabling legislation for the instrument is a taxation law (as defined in the Taxation Administration Act 1953)—the Commissioner of Taxation; or

(b) if the enabling legislation is a law of customs (as defined in the Customs Administration Act 1985)—the Chief Executive Officer of Customs; or

(c) if the enabling legislation for the instrument is not described in paragraph (a) or (b)—the Secretary of the Department that is administered by the responsible Minister.

Division 5—Compilations

33 Compilations to be registered

(1) Subject to subsections (2) and (3), if a legislative instrument (the principal legislative instrument) is amended:

(a) by an Act; or

(b) by another legislative instrument (the amending legislative instrument);

the Secretary must cause to be registered a compilation, in electronic form, in relation to the principal legislative instrument, as soon as practicable:

(d) after the amending legislative instrument is registered and has commenced.

(2) If:

(a) the Secretary causes a compilation to be registered in relation to a principal legislative instrument; and

(b) an amending legislative instrument, the effect of which is incorporated within the compilation, is subsequently disallowed, in whole or in part; and

(i) a compilation is no longer required because the principal legislative instrument is no longer amended in any respect; or

(ii) a compilation is still required but the compilation as registered ceases to represent the state of the law;

the Secretary must:

(d) if a compilation is no longer required—cause the Register to be annotated to explain why a compilation is no longer required; and

(e) if a compilation is still required but the compilation as registered ceases to represent the state of the law:

(i) cause the Register to be annotated to explain why the compilation as registered has ceased to represent the state of the law; and

(ii) cause to be registered, with effect from the date of the disallowance, a new compilation taking account of that disallowance.

(3) Subsections (1) and (2) do not require the registration of a compilation in relation to a principal legislative instrument until the registration of that principal legislative instrument occurs.

34 Secretary may require provision of compilations for registration purposes

(1) If:

(a) a rule‑maker is required to lodge for registration a legislative instrument; and

(b) the legislative instrument amends another legislative instrument (the principal legislative instrument);

the Secretary may, by written notice given to the rule‑maker of the amending instrument:

(c) require the rule‑maker to lodge a compilation, in electronic form, in relation to the principal legislative instrument; and

(d) if other legislative instruments also amend the principal legislative instrument with effect from the same time—require the compilation to incorporate the text of those other legislative instruments.

(2) If an Act amends a legislative instrument (the principal legislative instrument), the Secretary may, by written notice given to the rule‑maker of the principal legislative instrument, require the rule‑maker to lodge a compilation, in electronic form, in relation to the principal legislative instrument.

(3) If:

(a) a compilation in relation to a legislative instrument (the principal legislative instrument) has been registered; and

(b) the Secretary is satisfied that, because of the disallowance, in whole or in part, of a legislative instrument amending the principal legislative instrument, the compilation as registered has ceased to represent the state of the law;

the Secretary may, by written notice given to the rule‑maker of the legislative instrument that has been wholly or partly disallowed, require the rule‑maker to lodge a revised compilation, in electronic form, in relation to the principal legislative instrument that takes account of the disallowance.

(4) A notice under subsection (1) must require the lodgment of the compilation concerned as soon as practicable after lodgment for registration of the amending legislative instrument or the principal legislative instrument, whichever last occurs.

(5) A notice under subsection (2) must require the lodgment of the compilation concerned as soon as practicable after the coming into force of the provision or provisions of the amending Act or the lodgment for registration of the principal legislative instrument, whichever last occurs.

(6) A notice under subsection (3) must require the lodgment of the compilation concerned as soon as practicable after the giving of the notice.

35 Information to be included with a compilation

Any compilation, in relation to a legislative instrument (the principal legislative instrument), that is registered, must include the following information:

(a) a reference to the Act or legislative instrument by which each amendment was made to the principal legislative instrument;

(b) the amending history of each provision in the principal legislative instrument as amended by each Act or amending legislative instrument covered by the compilation;

(d) such further information as is specified in the regulations.

Division 6—Early backcapturing

36 Inclusion in database established in anticipation of the enactment of this Act

(1) If, before the commencing day, an electronic database comprising the text of:

(a) instruments that, on that day, will be legislative instruments within the meaning of subsection 4(1); and

(b) documents that, on that day, will be compilations, in relation to legislative instruments, within the meaning of subsection 4(1);

is established within the Department in anticipation of the enactment of this Act, that database becomes, on that day, the Federal Register of Legislative Instruments established by section 20.

(2) If:

(a) before the commencing day, the text of an instrument referred to in subsection (1) is included in the database referred to in that subsection; and

(b) the instrument will, on the commencing day, be a legislative instrument to which section 28 applies;

that instrument is to be taken, on that day, to have been registered under Division 3 of this Part despite its inclusion in the database with effect from an earlier day.

(3) If:

(a) before the commencing day, the text of a compilation referred to in subsection (1) is included in the database referred to in that subsection; and

(b) the compilation will, on the commencing day, be a compilation to which section 33 applies;

that compilation is to be taken, on that day, to have been registered under Division 5 of this Part despite its inclusion in the database with effect from an earlier day.

(4) For the purpose only of facilitating access to rules of court to which section 9 applies:

(a) the reference in subsection (1) to instruments that, on the commencing day, will be legislative instruments is to be taken to include a reference to such rules; and

(b) such rules are, if included in the electronic database of the text of instruments referred to in that subsection, to be taken on that day to have been registered under Division 3 of this Part as that Division is applied in relation to such rules.

Part 5—Parliamentary scrutiny of legislative instruments

37 The purpose of the Part

The purpose of this Part is to facilitate the scrutiny by the Parliament of registered legislative instruments and to set out the circumstances and manner in which such instruments, or provisions of such instruments, may be disallowed, as well as the consequences of such disallowance.

Note: Section 44 provides that certain instruments are exempted from the operation of section 42.

38 Tabling of legislative instruments

(1) The Department must arrange for a copy of each legislative instrument registered under Division 2 of Part 4 to be delivered to each House of the Parliament to be laid before each House within 6 sitting days of that House after the registration of the instrument.

(2) For the avoidance of doubt, subsection (1) applies in relation to any legislative instrument made on or after the commencing day even though the enabling legislation for legislative instruments of that kind:

(a) may have been enacted or made before the commencing day; and

(b) may have provided that legislative instruments of that kind are not disallowable.

(3) If a copy of a legislative instrument that is required to be laid before each House of the Parliament is not so laid in accordance with this section, the legislative instrument ceases to have effect immediately after the last day for it to be so laid.

39 Additional material to be tabled with the legislative instrument

(1) If a rule‑maker lodges an explanatory statement relating to a legislative instrument:

(a) at the time of lodging the legislative instrument for registration; or

(b) at a later time before a copy of the legislative instrument is delivered to each House of the Parliament to be laid before it;

the Department must also arrange for the delivery to that House, to be laid before it, with the copy of that legislative instrument, a copy of that explanatory statement.

(2) If a rule‑maker fails to lodge an explanatory statement relating to a legislative instrument with the Department before the Department arranges for a copy of the legislative instrument to be delivered to a particular House of the Parliament, the rule‑maker must, as soon as possible, deliver to that House, to be laid before it:

(a) a copy of the explanatory statement; and

(b) a written statement why the explanatory statement was not provided to the Department in time to be delivered to the House with the legislative instrument.

40 Regulations may specify manner of delivery of certain documents

The regulations may specify the manner, which may include delivery by an electronic means, by which documents required to be laid before a House of the Parliament in accordance with section 38 or 39 may be delivered to that House for that purpose.

41 Incorporated material may be required to be made available

A House of the Parliament may, at any time while a legislative instrument is subject to disallowance, require any document incorporated by reference in the instrument to be made available for inspection by that House:

(a) at a place acceptable to the House; and

(b) at a time specified by the House.

42 Disallowance of legislative instruments

(1) If:

(a) notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and

(b) within 15 sitting days of that House after the giving of that notice, the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision;

the instrument or provision so disallowed then ceases to have effect.

(2) If:

(b) at the end of 15 sitting days of that House after the giving of that notice of motion:

(i) the notice has not been withdrawn, the motion has not been called on, and the House has not passed a resolution deferring its consideration; or

(ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;

the instrument or provision specified in the motion is then taken to have been disallowed and ceases at that time to have effect.

(3) If:

(b) before the end of 15 sitting days of that House after the giving of that notice of motion, the House of Representatives is dissolved or expires, or the Parliament is prorogued; and

(i) the notice has not been withdrawn, the motion has not been called on, and the House has not passed a resolution deferring its consideration; or

(ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;

the legislative instrument is taken, for the purposes of subsections (1) and (2), to have been laid before the first‑mentioned House on the first sitting day of that first‑mentioned House after the dissolution, expiry or prorogation, as the case may be.

44 Legislative instruments that are not subject to disallowance

(1) Section 42 does not apply in relation to a legislative instrument, or a provision of a legislative instrument, made on or after the commencing day, if the enabling legislation for the instrument (not being the Corporations Act 2001):

(a) facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States; and

(b) authorises the instrument to be made by the body or for the purposes of the body or scheme;

unless the instrument is a regulation, or the enabling legislation or some other Act has the effect that the instrument is disallowable.

(2) Section 42 does not apply in relation to a legislative instrument, or a provision of a legislative instrument, that is included in the table below unless the instrument or provision is subject to disallowance under its enabling legislation or by means of some other Act:

Legislative instruments that are not subject to disallowance
Item	Particulars of instrument
1	Declarations under paragraph 5A(2)(d) or (e) of the Australian Citizenship Act 1948
2	Determinations specifying drugs, made under section 4A of the Australian Federal Police Act 1979
3	Statutes made under the Australian National University Act 1991 or rules or orders made under those statutes
4	Instruments made under section 32 of the Australian Postal Corporation Act 1989
5	Rules made under section 60 of the Australian Research Council Act 2001
6	Standards issued under section 122 of the Broadcasting Services Act 1992
7	Amendments under section 128 of the Broadcasting Services Act 1992 to standards under Part 9 of that Act
8	Fee waiver principles made under subsection 91(1A) of the Classification (Publications, Films and Computer Games) Act 1995
9	Notifications under section 28 or 43 of the Commonwealth Authorities and Companies Act 1997
10	Determinations made under paragraph 153J(1)(c), 153L(1)(c), 153P(2)(c) or 153Q(1)(c) of the Customs Act 1901
11	Revocations made under subsection 153K(3) or 153LA(3) of the Customs Act 1901
12	Instruments made under subsection 161J(2) or (3) of the Customs Act 1901
13	Tariff Concession Orders made under section 269P or 269Q of the Customs Act 1901
14	Instruments made under section 269SC or 269SD of the Customs Act 1901
15	By‑laws made under section 271 of the Customs Act 1901 for the purposes of Schedule 4 to the Customs Tariff Act 1995
16	Revocations of Commercial Tariff Concession Orders to which section 20 of the Customs Legislation (Tariff Concessions and Anti‑Dumping) Amendment Act 1992 applies
17	Instruments made under section 303CA, 344 or 350 of the Environment Protection and Biodiversity Conservation Act 1999
18	By‑laws made under section 165 of the Excise Act 1901 for the purposes of the Excise Tariff within the meaning of section 4 of the Excise Act 1901
19	Determinations made under subsection 20(3), agreements made under section 31, directions given under section 32, or instructions given under section 52, of the Financial Management and Accountability Act 1997
20	Determinations made under Order 6.2.1 of the Financial Management and Accountability Orders 1997 made under section 63 of the Financial Management and Accountability Act 1997
21	Guidelines issued under regulations made pursuant to section 64 of the Financial Management and Accountability Act 1997
22	Proclamations made under section 5, warrants made under section 6 or rules made under section 7, of the Flags Act 1953
23	Proclamations made under subsection 31(1) or (3) of the Great Barrier Reef Marine Park Act 1975
24	Guidelines issued under section 13 of the Higher Education Funding Act 1988
25	Statutes made under the Maritime College Act 1978 or rules made under those statutes
26	Legislative instruments (other than regulations) under Part 1, 2 or 9 of the Migration Act 1958, or legislative instruments under Part 1, 2 or 5, or Schedule 1, 2, 4, 5A, 6, 6A or 8, of the regulations made under that Act
27	Declarations made by Ministers under section 32 of the Mutual Recognition Act 1992
28	Instruments made under subsection 203AH(1) of the Native Title Act 1993
29	Directions issued under section 20 of the Parliamentary Service Act 1999
30	Instruments made under section 23 or subsection 24(3) of the Parliamentary Service Act 1999
31	Access regimes made under section 12, variations of such access regimes under section 14, revocation of access regimes made under section 15, determinations and variations of standards under section 18, or instruments made under section 25, of the Payment Systems (Regulation) Act 1998
32	Directions issued under section 21 of the Public Service Act 1999
33	Instruments made under section 23 or subsection 24(3) of the Public Service Act 1999
34	Instruments made under section 2A, 2B, or 12, subsection 13(1), section 20B, subsection 26(2) or section 26A of the Quarantine Act 1908
35	Instruments made under subsection 60(1) or 106(1) of the Radiocommunications Act 1992
36	Instruments made under subsection 463(1) of the Telecommunications Act 1997
37	Declarations made by Ministers under section 31 of the Trans‑Tasman Mutual Recognition Act 1997
38	Instruments made under Annual Appropriation Acts
39	Instruments (other than regulations) relating to superannuation
40	Legislative instruments that, in accordance with the provisions of the enabling legislation, do not commence unless they are approved by either or both of the Houses of the Parliament
41	Ministerial directions to any person or body
42	Proclamations that provide solely for the commencement of Acts or of provisions of Acts
43	Certificates issued by the Attorney‑General under section 10 or 11, or under subsection 51(1), of this Act
44	Instruments that are prescribed by the regulations for the purposes of this table

45 Effect of a legislative instrument ceasing to have effect

(1) If a legislative instrument (the affected instrument), or a provision of a legislative instrument (the affected provision), ceases, at a particular time, to have effect under subsection 38(3) or 42(1) or (2), the operation of that subsection in relation to the affected instrument or provision has the same effect as if the affected instrument or provision had been repealed with effect from that time.

(2) If:

(a) the affected instrument or provision ceases, at a particular time, to have effect under subsection 38(3) or 42(1) or (2); and

(b) the affected instrument or provision repealed, in whole or in part, another legislative instrument or law, or a provision of another legislative instrument or law, that was in force immediately before the time when the affected instrument or provision commenced;

the operation of that subsection has the effect of reviving the other legislative instrument, law or provision, from that first‑mentioned time, as if the affected instrument or provision had not been made.

(3) Subsection (2) does not have the effect of reviving a legislative instrument, law or provision if, before the date when it would have been revived, it would have ceased to have effect under Part 6 had it not been repealed.

46 Legislative instruments not to be remade while required to be tabled

(1) If a legislative instrument (the original legislative instrument) has been registered, no legislative instrument the same in substance as the original legislative instrument is to be made during the period defined by subsection (2) unless both Houses of the Parliament by resolution approve the making of an instrument the same in substance as the original legislative instrument.

(2) The period referred to in subsection (1) is the period starting on the day on which the original legislative instrument was registered and ending at the end of 7 days after:

(a) if the original legislative instrument has been laid, in accordance with subsection 38(1), before both Houses of the Parliament on the same day—that day; or

(b) if the original legislative instrument was so laid before both Houses on different days—the later of those days; or

(c) if the original legislative instrument has not been so laid before both Houses—the last day on which subsection 38(1) could have been complied with.

(3) An instrument made in contravention of this section has no effect.

47 Legislative instruments not to be remade while subject to disallowance

(1) If notice of a motion to disallow a legislative instrument, or a provision of a legislative instrument, has been given in a House of the Parliament within 15 sitting days after the instrument has been laid before that House, a legislative instrument, or a provision of a legislative instrument, that is the same in substance as the first‑mentioned instrument or provision, must not be made unless:

(a) the notice has been withdrawn; or

(b) the instrument or provision is taken to have been disallowed under subsection 42(2); or

(d) subsection 42(3) has applied in relation to the instrument.

(2) If:

(a) because of subsection 42(3), a legislative instrument is taken to have been laid before a House of the Parliament on a particular day; and

(b) notice of a motion to disallow the instrument or a provision of the instrument has been given in that House within 15 sitting days after that day;

a legislative instrument, or a provision of a legislative instrument, that is the same in substance as the first‑mentioned instrument or provision must not be made unless:

(d) the first‑mentioned instrument or provision is taken to have been disallowed under subsection 42(2); or

(e) the motion has been withdrawn or otherwise disposed of; or

(f) subsection 42(3) has applied again in relation to the first‑mentioned instrument.

(3) A legislative instrument or a provision of a legislative instrument made in contravention of this section has no effect.

(4) This section does not limit the operation of section 46 or 48.

48 Disallowed legislative instruments not to be remade unless disallowance resolution rescinded or House approves

(1) If, under section 42, a legislative instrument or a provision of a legislative instrument is disallowed, or is taken to have been disallowed, a legislative instrument, or a provision of a legislative instrument, that is the same in substance as the first‑mentioned instrument or provision, must not be made within 6 months after the day on which the first‑mentioned instrument or provision was disallowed or was taken to have been disallowed, unless:

(a) if the first‑mentioned instrument or provision was disallowed by resolution—the resolution has been rescinded by the House of the Parliament by which it was passed; or

(b) if the first‑mentioned instrument or provision was taken to have been disallowed—the House of the Parliament in which notice of the motion to disallow the instrument or provision was given by resolution approves the making of a legislative instrument or provision the same in substance as the first‑mentioned instrument or provision.

(2) Any legislative instrument or provision made in contravention of this section has no effect.

Part 6—Sunsetting of legislative instruments

49 The purpose of the Part

The purpose of this Part is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.

Note: Section 54 provides that certain instruments are exempted from the operation of this Part.

50 The sunsetting of legislative instruments to which this Part applies

(1) Subject to subsection 51(1), if a legislative instrument to which this Part applies (the principal legislative instrument):

(a) is made before the commencing day and does not amend an earlier legislative instrument that continues in force after the making of the principal legislative instrument; and

(b) is required to be lodged for registration before a day (the deadline day) determined in accordance with section 29;

then:

(d) the provisions of any other legislative instrument (whether or not made before the commencing day) that amend, or otherwise affect the operation of, the principal legislative instrument;

as in force immediately before whichever of 1 April or 1 October falls on, or next follows, the tenth anniversary of the deadline day, cease to be in force on that 1 April or 1 October as if they had been repealed by another legislative instrument.

(2) Subject to subsection 51(1), if a legislative instrument to which this Part applies (the principal legislative instrument) is made on or after the commencing day and does not amend an earlier legislative instrument that continues in force after the making of the principal legislative instrument, then:

(a) the principal legislative instrument; and

(b) the provisions of any other legislative instrument that amend, or otherwise affect the operation of, the principal legislative instrument;

as in force immediately before whichever of 1 April or 1 October falls on, or next follows, the tenth anniversary of the day of commencement of the principal legislative instrument, cease to be in force on that 1 April or 1 October as if they had been repealed by another legislative instrument.

(3) Subject to subsection 51(1), if a legislative instrument to which this Part applies (the partially amending legislative instrument) contains:

(a) provisions that amend an earlier legislative instrument that continues in force after the making of the partially amending legislative instrument; and

(b) other provisions that do not amend an earlier legislative instrument;

then:

(c) the provisions of the partially amending legislative instrument that do not amend an earlier legislative instrument; and

(d) the provisions of any other legislative instrument that amend, or otherwise affect, the operation of the provisions referred to in paragraph (c);

as in force immediately before whichever of 1 April or 1 October falls on, or next follows, the tenth anniversary of a day (the critical day) in relation to the partially amending legislative instrument, determined in accordance with subsection (4), cease to be in force on that 1 April or 1 October as if they had been repealed by another legislative instrument.

(4) For the purposes of subsection (3):

(a) if a partially amending legislative instrument is made before the commencing day—the critical day in relation to that instrument is the day on which, under section 29, it is required to be lodged for registration; and

(b) if a partially amending legislative instrument is made on or after the commencing day—the critical day in relation to that instrument is the date of commencement of the provisions that do not amend an earlier legislative instrument.

(5) If a principal legislative instrument referred to in subsection (2) has 2 or more days of commencement, then, for the purposes of that subsection, the day of commencement of that instrument is the earliest of those days.

(6) If the provisions of a partially amending legislative instrument referred to in subsection (3) that do not amend an earlier legislative instrument have 2 or more days of commencement then, for the purposes of subsection (4), the day of commencement of those provisions is the earliest of those days.

51 Attorney‑General may defer sunsetting in certain circumstances

(1) If:

(a) a legislative instrument or particular provisions of a legislative instrument would be taken to cease to be in force under this Part (whether because of the operation of subsection 50(1), (2) or (3) on a particular day (the sunsetting day); and

(b) the Attorney‑General is satisfied, on written application by the rule‑maker:

(i) that the instrument or provisions would (apart from the operation of this Part) be likely to cease to be in force within 12 months after the sunsetting day; or

(ii) that an instrument proposed to be made in substitution for the instrument or provisions will not be able to be completed before the sunsetting day for reasons that the rule‑maker could not have foreseen and avoided or because the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed;

then:

(c) the Attorney‑General may issue a certificate providing that the first‑mentioned instrument or provisions are taken to cease to be in force under this section on whichever of the 1 April and 1 October next following the sunsetting day the Attorney‑General specifies as the more appropriate; and

(d) if the Attorney‑General issues the certificate, the first‑mentioned instrument or provisions are taken to cease to be in force on the specified day instead of the sunsetting day as if repealed by another legislative instrument, unless they have earlier ceased to be in force.

(2) If the Attorney‑General issues a certificate under paragraph (1)(c), he or she must:

(a) include in the certificate a statement of the reasons for the issue of a certificate; and

(b) cause a copy of the certificate to be laid before each House of the Parliament not later than 6 sitting days of that House after the issue of the certificate.

(3) A certificate issued under paragraph (1)(c) is a legislative instrument and, as such, is required under Part 4 to be registered.

52 Attorney‑General must lay lists of instruments due for sunsetting before each House of the Parliament

(1) In this section:

list tabling day, in relation to a sunsetting day and to a House of the Parliament, means the first sitting day of that House occurring within 18 months before that sunsetting day.

principal legislative instrument means an instrument that is a principal legislative instrument within the meaning of subsection 50(1) or (2), whichever is appropriate.

sunsetting day means the first possible day on which any legislative instrument will cease to be in force because of the operation of this Part and each 1 April and 1 October occurring after that day.

(2) The Attorney‑General must arrange for the laying before each House of the Parliament, on each list tabling day in relation to that House, of a list of:

(a) the principal legislative instruments; and

(b) the provisions (if any) of other legislative instruments that amend or otherwise affect, the operation of those principal legislative instruments;

that will, because of the operation of section 50 or 51, cease to be in force on the sunsetting day to which that list tabling day relates.

(3) As soon as practicable after the laying before either House of the Parliament of a list in accordance with subsection (2), the Department must arrange for a copy of that list to be provided to the rule‑maker responsible for each principal legislative instrument, and each provision of a legislative instrument, appearing on the list.

(4) If subsection (2) requires the Attorney‑General to arrange for the laying of a list of the kind referred to in that subsection before the Houses of the Parliament on different days, subsection (3) need only be complied with in relation to the earlier of those days.

53 Resolution that instruments continue in force

(1) Either House of the Parliament may, by resolution passed within 6 months after:

(a) the laying before that House, under subsection 52(2), of a list; or

(b) the laying before that House, under subsection 51(2), of a copy of a certificate issued under paragraph 51(1)(c);

indicate the legislative instruments and provisions of legislative instruments on that list or referred to in that certificate (selected instruments or provisions) that that House considers should continue in force.

(2) A selected instrument or provision continues in force, subject to any later instrument amending or repealing it, as if it had been remade on the date on which if the resolution had not been passed, it would cease to be in force.

54 Instruments to which this Part does not apply

(1) This Part does not apply in relation to a legislative instrument made before, on or after the commencing day, if the enabling legislation for the instrument (not being the Corporations Act 2001):

(a) facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States; and

(b) authorises the instrument to be made by the body or for the purposes of the body or scheme.

(2) This Part does not apply to any legislative instrument that is included in the table below:

Legislative instruments that are not subject to sunsetting
Item	Particulars of instrument
1	Instruments made under section 8 or 9 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986
2	Instruments relating to aviation security made under the Air Navigation Act 1920 or under the regulations made under that Act
3	Instruments relating to aviation safety made under the Air Services Act 1995 or the Air Services Regulations
4	National Capital Plan made under the Australian Capital Territory (Planning and Land Management) Act 1988
5	Determinations specifying drugs, made under section 4A of the Australian Federal Police Act 1979
6	Statutes made under the Australian National University Act 1991 or rules or orders made under those statutes
7	Instruments made under section 32 of the Australian Postal Corporation Act 1989
8	Instruments made under section 25 or 26 of the Broadcasting Services Act 1992
9	Instruments relating to aviation safety made under the Civil Aviation Act 1988, the Civil Aviation Regulations 1988 or the Civil Aviation Safety Regulations 1998
10	Fee waiver principles made under subsection 91(1A) of the Classification (Publications, Films and Computer Games) Act 1995
11	Notifications under section 28 or 43 of the Commonwealth Authorities and Companies Act 1997
12	Determinations made under paragraph 153J(1)(c), 153L(1)(c), 153P(2)(c) or 153Q(1)(c) of the Customs Act 1901
13	Revocations made under subsection 153K(3) or 153LA(3) of the Customs Act 1901
14	Instruments made under subsection 161J(2) or (3) of the Customs Act 1901
15	Instruments made under section 178, 181, 183, 184, 207A, 248, 249, 303CA, 303DB, 303DC, 303EB, 303EC, 303FG, 344 or 350 of the Environment Protection and Biodiversity Conservation Act 1999
16	Excise By‑law No. 75, 114, 127, 129, 151 or 154 made under section 165 of the Excise Act 1901
17	Determinations made under subsection 20(1), (2) or (3), agreements made under section 31, directions given under section 32, or instructions given under section 52, of the Financial Management and Accountability Act 1997
18	Determinations made under Order 6.2.1 of the Financial Management and Accountability Orders 1997 made under section 63 of the Financial Management and Accountability Act 1997
19	Guidelines issued under regulations made pursuant to section 64 of the Financial Management and Accountability Act 1997
20	Plans of management made under section 17 of the Fisheries Management Act 1991 and instruments amending such plans made under section 20 of that Act
21	Proclamations made under section 5, warrants made under section 6, or rules made under section 7, of the Flags Act 1953
22	Proclamations made under section 31 of the Great Barrier Reef Marine Park Act 1975, zoning plans prepared under section 32 of that Act, instruments made under section 37 of that Act amending or revoking such zoning plans, plans of management prepared in accordance with Part VB of that Act, instruments made under section 39ZG of that Act amending such plans of management, or instruments made under section 39ZH of that Act revoking such plans of management
23	Statutes made under the Maritime College Act 1978 or rules made under those statutes
24	Instruments made under section 7 or 9 of the Motor Vehicle Standards Act 1989
25	Declarations made by Ministers under section 32 of the Mutual Recognition Act 1992
26	Instruments made under subparagraph 26(1)(c)(iv), subsection 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b) or 43A(1)(b), section 203AD, 203AE, 203AF or 203AG, subsection 203AH(1) or (2), 207A(1), 207B(3), 245(4) or 251C(4) or (5), or paragraph (i) of the definition of infrastructure facility in section 253, of the Native Title Act 1993
27	Instruments made under section 421, or Marine Orders made under subsection 425(1AA), of the Navigation Act 1912
28	Navigation (Collision) Regulations 1982 made pursuant to section 258, or Navigation (Orders) Regulations 1980 made pursuant to subsection 425(1), of the Navigation Act 1912
29	Directions issued under section 20 of the Parliamentary Service Act 1999
30	Instruments made under section 23 or subsection 24(3) of the Parliamentary Service Act 1999
31	Approvals made under section 9 of the Payment Systems and Netting Act 1998
32	Access regimes imposed under section 12, variations of access regimes under section 14, revocation of access regimes under section 15, standards determined, or instruments varying or revoking such standards, under section 18, or instruments made under section 25, of the Payment Systems (Regulation) Act 1998
33	Marine Orders made under subsection 24(1) of the Protection of the Sea (Powers of Intervention) Act 1981
34	Protection of the Sea (Powers of Intervention) Regulations made under section 23 of the Protection of the Sea (Powers of Intervention) Act 1981
35	Marine Orders made under subsection 34(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983
36	Protection of the Sea (Prevention of Pollution from Ships) (Orders) Regulations 1994 made under subsection 33(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983
37	Directions issued under section 21 of the Public Service Act 1999
38	Instruments made under section 23 or subsection 24(3) of the Public Service Act 1999
39	Instruments required to be laid before the Parliament under subsection 7(7) of the Remuneration Tribunal Act 1973
40	Declarations made by Ministers under section 31 of the Trans‑Tasman Mutual Recognition Act 1997
41	Instruments made under Annual Appropriation Acts
42	Instruments (other than regulations) relating to superannuation
43	Legislative instruments the sole purpose of which, or a primary purpose of which, is to give effect to an international obligation of Australia
44	Legislative instruments the sole purpose of which, or a primary purpose of which, is to confer heads of power on a self‑governing Territory
45	Legislative instruments that establish a body having power to enter into contracts for the purposes of the body’s functions
46	Ministerial directions to any person or body
47	Ordinances of the non self‑governing Territories
48	Proclamations that provide solely for the commencement of Acts or provision of Acts
49	Certificates issued by the Attorney‑General under section 10 or 11 of this Act
50	Regulations made for the purposes of item 24 of the table in subsection 7(1), item 44 of the table in subsection 44(2) or item 51 of this table
51	Legislative instruments that are prescribed by the regulations for the purposes of this table

Part 7—Miscellaneous

55 Instruments made but not finally dealt with before the commencing day

(1) This section applies to a legislative instrument made before the commencing day:

(a) that was a disallowable instrument for the purposes of section 46A of the Acts Interpretation Act 1901 as in force at any time before the commencing day; or

(b) that was a statutory rule or other instrument able to be disallowed under Part XII of the Acts Interpretation Act 1901 as in force at any time before the commencing day; or

(2) If a legislative instrument to which this section applies, or notice of the making of such an instrument, had not been published in the Gazette before the commencing day:

(a) that instrument is to be treated, for all purposes of this Act, as if it had been made on the commencing day; and

(b) the obligations in relation to that instrument under the Acts Interpretation Act 1901, and under the Statutory Rules Publication Act 1903, as in force immediately before the commencing day, cease to apply;

but the tenor of the instrument is not affected.

(3) Despite subsection (2), section 39 does not apply in relation to a legislative instrument described in that subsection.

(4) If a legislative instrument to which this section applies, or notice of the making of such an instrument, had been published in the Gazette before the commencing day, the obligations in relation to that instrument under Part XII of the Acts Interpretation Act 1901, and under the Statutory Rules Publication Act 1903, as in force at any time before the commencing day, continue to apply in relation to that instrument as if that Part and that Act had not been repealed.

56 Relationship of certain gazettal requirements to registration requirements

(1) If the enabling legislation in relation to a legislative instrument as in force at any time before the commencing day required the text of the instrument, or particulars of its making, to be published in the Gazette, the requirement for publication in the Gazette is taken, in relation to any such instrument made on or after that day, to be satisfied if the instrument is registered.

(2) If the enabling legislation in relation to a legislative instrument as enacted, or as amended, at any time on or after the commencing day requires the text of the instrument, or particulars of its making, to be published in the Gazette, the requirement for publication in the Gazette is taken in respect of any such instrument to be in addition to any requirement under this Act for the instrument to be registered.

57 Effect on existing tabling and disallowance requirements

(1) Despite provisions in force immediately before the commencing day in relation to a document that is a legislative instrument for the purposes of this Act concerning:

(a) the time within which; and

(b) the means by which;

such an instrument is required to be laid before the Parliament, compliance, on and after that day, with the requirements of this Act relating to laying of instruments before the Parliament is taken to constitute full compliance with the requirements of those first‑mentioned provisions.

(2) Despite provisions in force immediately before the commencing day that provide for the disallowance of a document that is a legislative instrument (otherwise than because of the application, without modification, of the disallowance provisions of Part XII of the Acts Interpretation Act 1901), the disallowance provisions of this Act are taken to apply, subject to subsection (5), in respect of that document to the exclusion of those other provisions.

(3) If provisions in force immediately before the commencing day in relation to a document that is a legislative instrument specify particular consequences that follow a particular circumstance, namely:

(a) the laying of that document, or the failure to lay that document, before the Houses of the Parliament in accordance with those provisions; or

(b) the disallowance or non‑disallowance, in accordance with those provisions, of a document that is so laid:

those same consequences follow a like circumstance under this Act, namely:

(c) the laying of that document, or the failure to lay that document, before the Houses of the Parliament in accordance with this Act; and

(d) the disallowance or non‑disallowance of that document, in accordance with this Act, of a document that is laid before the Houses of the Parliament in accordance with this Act;

as if the circumstance referred to in paragraph (c) or (d) were a circumstance referred to in paragraph (a) or (b).

(4) If provisions in force immediately before the commencing day in relation to a document that is a legislative instrument:

(a) require the document to be laid before the Houses of the Parliament; and

(b) specify particular requirements to be complied with before, or at the same time as, that document is so laid;

those provisions continue to have effect, on and after the commencing day, as if they were requirements to be complied with before, or at the same time as, the document is laid before the Houses of the Parliament in accordance with this Act.

Note: This subsection applies, for example, if the enabling legislation in respect of a legislative instrument required that a report concerning any such instrument be prepared and laid before the Parliament at the same time as the instrument is so laid.

(5) If particular disallowance provisions of the kind referred to in subsection (2) are prescribed as provisions to which subsection (2) does not apply, then those provisions continue to apply, on and after the commencing day, despite the provisions to different effect in sections 42 to 48 of Part 5 of this Act.

58 Delegation

The Secretary may, by signed instrument, delegate to an APS employee who is performing duty in the Department any of the powers or functions of the Secretary under this Act other than this power of delegation.

59 Review of operation of this Act

(1) During the 3 months starting on the third anniversary of the commencing day, the Attorney‑General must appoint persons to a body to review the operation of this Act.

(2) A person appointed to the body may resign from it by giving the Attorney‑General a signed notice of resignation.

(3) The body must review all aspects of the operation of this Act and any related matters that the Attorney‑General specifies.

(4) The body must give the Attorney‑General a written report on the review within 15 months after the third anniversary of the commencing day.

(5) The Attorney‑General must cause the report to be laid before each House of the Parliament within 6 sitting days of the House after the Attorney‑General receives the report.

60 Review of operation of the sunsetting provisions

(1) During the 3 months starting on the 12th anniversary of the commencing day, the Attorney‑General must appoint persons to a body to review the operation of Part 6.

(2) A person appointed to the body may resign from it by giving the Attorney‑General a signed notice of resignation.

(3) The body referred to in subsection (1) must review all aspects of the operation of Part 6 and any related matters that the Attorney‑General specifies.

(4) The body must give the Attorney‑General a written report on the review within 9 months after the 12th anniversary of the commencing day.

(5) The Attorney‑General must cause the report to be laid before each House of the Parliament within 6 sitting days of the House after the Attorney‑General receives the report.

61 Existing references to Legislative Instruments Act

Any reference in a law of the Commonwealth in force immediately before the commencement of this Act, to:

(a) the Legislative Instruments Act 1994; or

(b) the Legislative Instruments Act of any subsequent year before the year featuring in the correct citation of this Act;

has effect, on and after the commencement of this Act, as if it were, and had always been, a reference to this Act.

62 Regulations

The Governor‑General may make regulations prescribing all matters:

(a) required or permitted by this Act to be prescribed; or

(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.