Commonwealth: Legislation Act 2003 (Cth)

Legislation Act 2003 No. 139, 2003 Compilation No. 39 Compilation date: 24 February 2019 Includes amendments up to: Act No. 130, 2018 Registered: 25 February 2019 This compilation includes commenced amendments made by Act No. 78, 2018 About this compilation This compilation This is a compilation of the Legislation Act 2003 that shows the text of the law as amended and in force on 24 February 2019 (the compilation date). The notes at the end of this compilation (the endnotes) include information about amending laws and the amendment history of provisions of the compiled law. Uncommenced amendments The effect of uncommenced amendments is not shown in the text of the compiled law. Any uncommenced amendments affecting the law are accessible on the Legislation Register (www.legislation.gov.au). The details of amendments made up to, but not commenced at, the compilation date are underlined in the endnotes. For more information on any uncommenced amendments, see the series page on the Legislation Register for the compiled law. Application, saving and transitional provisions for provisions and amendments If the operation of a provision or amendment of the compiled law is affected by an application, saving or transitional provision that is not included in this compilation, details are included in the endnotes. Editorial changes For more information about any editorial changes made in this compilation, see the endnotes. Modifications If the compiled law is modified by another law, the compiled law operates as modified but the modification does not amend the text of the law. Accordingly, this compilation does not show the text of the compiled law as modified. For more information on any modifications, see the series page on the Legislation Register for the compiled law. Self‑repealing provisions If a provision of the compiled law has been repealed in accordance with a provision of the law, details are included in the endnotes. Contents Chapter 1—Introduction Part 1—Preliminary 1 Short title 2 Commencement 3 Object 3A Simplified outline of this Act 3AA Norfolk Island 4 The Dictionary 5 Definitions of amend and modify 6 Definitions of rule‑maker and responsible person Part 2—Key concepts for legislative instruments and notifiable instruments 7 Simplified outline of this Part 8 Definition of legislative instrument 9 Inference of legislative character 10 Instruments declared to be legislative instruments 11 Definition of notifiable instrument 12 Commencement of legislative instruments and notifiable instruments 13 Construction of legislative instruments and notifiable instruments 14 Prescribing matters by reference to other instruments Chapter 2—Registration of Acts, legislative instruments and notifiable instruments Part 1—The Federal Register of Legislation Division 1—Simplified outline of this Part 15 Simplified outline of this Part Division 2—Federal Register of Legislation 15A Federal Register of Legislation—establishment and maintenance 15B Federal Register of Legislation—complete record of registered laws 15C Federal Register of Legislation—access to registered material on approved website 15D Federal Register of Legislation—rectification of Register 15DA Requirement for re‑tabling and new disallowance period after rectification of Register 15E Federal Register of Legislation—keeping the Register Division 3—Registration on Federal Register of Legislation 15F Registration of Acts 15G Lodgement of legislative instruments and notifiable instruments, and other material 15H Registration of legislative instruments and notifiable instruments, and other documents 15J Explanatory statements 15K Registration—enforceability of legislative instruments 15L Events affecting the currency or accuracy of the Register 15M Rules for lodgement and registration Part 2—Compilations Division 1—Simplified outline of this Part 15N Simplified outline of this Part Division 2—Registration of compilations 15P Registered compilations—information requirements 15Q Definitions of required compilation event and discretionary compilation event etc. 15R Lodgement of compilations of instruments—required compilation events 15S Lodgement of compilations of instruments—discretionary compilation events 15T Registration of compilations 15U Compilations—rules Division 3—Editorial changes and other changes 15V Power to make editorial changes and other changes 15W Editorial changes treated in the same way as amendments 15X Definition of editorial change Part 3—Authorised versions and judicial notice Division 1—Introduction 15Y Simplified outline of this Part 15Z Scope of this Part Division 2—Authorised versions and judicial notice 15ZA Authorised versions 15ZB Judicial notice Chapter 3—Legislative instruments and notifiable instruments Part 1—Drafting standards and consultation 15ZC Simplified outline of this Part 16 Measures to achieve high drafting standards for legislative instruments and notifiable instruments 17 Rule‑makers should consult before making legislative instruments 19 Consequence of failure to consult Part 2—Parliamentary scrutiny of legislative instruments 36 Simplified outline of this Part 37 The purpose of the Part 38 Tabling of legislative instruments 39 Tabling of explanatory statements 40 Regulations may specify manner of delivery of certain documents 41 Incorporated material may be required to be made available 42 Disallowance of legislative instruments 44 Legislative instruments that are not subject to disallowance 45 Reviving a legislative instrument, law or provision 46 Legislative instruments not to be remade while required to be tabled 47 Legislative instruments not to be remade while subject to disallowance 48 Remaking disallowed legislative instruments Part 3—Repeal of spent legislative instruments, notifiable instruments and provisions Division 1A—Simplified outline of this Part 48AA Simplified outline of this Part Division 1—Automatic repeal Subdivision A—Repeal of amending and repealing instruments 48A Automatic repeal of amending and repealing instruments Subdivision B—Repeal of commencement instruments 48B Automatic repeal of commencement instruments Subdivision C—Repeal of amending or repealing provisions of instruments containing other matter 48C Automatic repeal of amending and repealing provisions Subdivision D—Repeal of commencement provisions of instruments containing other matter 48D Automatic repeal of commencement provisions Division 2—Repeal by regulations 48E Regulations may repeal instruments or provisions no longer required Part 4—Sunsetting of legislative instruments 48F Simplified outline of this Part 49 The purpose of the Part 50 Sunsetting 51 Attorney‑General may defer sunsetting in certain circumstances 51A Attorney‑General may align sunsetting of instruments to be reviewed together 52 Attorney‑General must lay lists of instruments due for sunsetting before each House of the Parliament 53 Resolution that instrument continue in force 54 Instruments to which this Part does not apply Chapter 4—Miscellaneous 55 Simplified outline of this Chapter 56 Legislative instruments—gazettal and other publication and notification requirements 57 Effect on existing tabling and disallowance requirements 57A Legislative instruments made under power delegated by the Parliament before 1 January 2005 58 Delegation 59 Review of operation of this Act 60 Review of operation of the sunsetting provisions 61 Legislative instrument and notifiable instrument amendments by regulations under this Act 61A Rules made by First Parliamentary Counsel 62 Regulations Endnotes Endnote 1—About the endnotes Endnote 2—Abbreviation key Endnote 3—Legislation history Endnote 4—Amendment history Endnote 5—Editorial changes An Act providing for public access to Acts and instruments, for the making, parliamentary scrutiny and sunsetting of legislative instruments and for the repeal of spent instruments and provisions, and for other purposes Chapter 1—Introduction Part 1—Preliminary 1 Short title This Act may be cited as the Legislation 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. 3 Object The object of this Act is to provide a comprehensive regime for the management of Acts and instruments by: (a) establishing the Federal Register of Legislation as a permanent repository of versions (including authorised versions) of Acts, legislative instruments, notifiable instruments and compilations, together with associated documents and information; and (aa) enabling the First Parliamentary Counsel to make editorial changes and some other changes in preparing compilations of Acts, legislative instruments and notifiable instruments, if those changes do not change the effect of the Acts or instruments; and (b) encouraging rule‑makers to undertake appropriate consultation before making legislative instruments; and (c) encouraging high standards in the drafting of legislative instruments and notifiable instruments to promote their legal effectiveness, their clarity and their intelligibility to anticipated users; and (d) improving public access to Acts and instruments; and (e) establishing improved mechanisms for Parliamentary scrutiny of legislative instruments; and (ea) automatically repealing spent legislative instruments and notifiable instruments (or provisions of those instruments) that merely provide for the amendment, repeal or commencement of Acts or other instruments; and (f) establishing mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed; and (g) enabling regulations to be made under this Act amending or repealing legislative instruments and notifiable instruments in some circumstances. 3A Simplified outline of this Act This Act provides for public access to Commonwealth Acts, legislative instruments and notifiable instruments. The Act also regulates other matters relating to legislative instruments and notifiable instruments. Acts, legislative instruments and notifiable instruments, compilations and associated documents and information are registered on the Federal Register of Legislation. The public has online access (through an approved website) to authorised versions of registered Acts, instruments and compilations, and to associated documents and information. The First Parliamentary Counsel maintains the Register and the approved website. The First Parliamentary Counsel is given the power to make editorial changes and some other changes to registered Acts and instruments in preparing compilations, if those changes do not change the effect of the Acts or instruments. For legislative instruments and notifiable instruments, the Act deals with commencement, interpretation, incorporation of external material by reference and drafting standards. Rule‑makers for legislative instruments must undertake appropriate and reasonably practicable consultation before the instruments are made. Generally, legislative instruments must be tabled in both Houses of Parliament and are generally subject to disallowance by either House. Legislative instruments and notifiable instruments (or provisions of those instruments) are automatically repealed if they merely provide for the amendment, repeal or commencement of Acts or other instruments. Legislative instruments are generally repealed automatically (sunsetted) no more than 10 years after being registered. 3AA Norfolk Island This Act extends to Norfolk Island. 4 The Dictionary In this Act: amend: see subsection 5(1). approved website: see section 15C. authorised version, of a registered law or explanatory statement: see section 15ZA. commencement instrument, in relation to an Act, legislative instrument or notifiable instrument, means an instrument providing solely for the commencement of: (a) the Act or instrument; or (b) a provision of the Act or instrument. Example: A Proclamation providing solely for the commencement of an Act. compilation, of an Act, legislative instrument or notifiable instrument, is a document showing the text of the Act or instrument: (a) as amended (if at all) and in force on a day (the compilation date) stated in the document; or (b) as the Act or instrument would be amended and in force on a day (the compilation date) stated in the document, by amendments that have not commenced, if the document indicates that the amendments have not commenced; or (c) as the Act or instrument is, or would be, modified by an Act or an instrument, and in force on a day (the compilation date) stated in the document. Note: See Part 2 of Chapter 2 for the registration of compilations. compilation date: see the definition of compilation in this section. disallowable legislative instrument means a legislative instrument to which section 42 applies. Note: Section 42 provides for the parliamentary disallowance of legislative instruments. Section 42 does not apply to some legislative instruments (see section 44). discretionary compilation event, for an Act, legislative instrument or notifiable instrument: see section 15Q. editorial change, in relation to an Act, legislative instrument or notifiable instrument: see section 15X. enabling legislation, in relation to a legislative instrument or notifiable instrument, means the primary law that authorises the making of the instrument. explanatory statement for a legislative instrument: see section 15J. Federal Register of Legislation means the register established and maintained under section 15A. First Parliamentary Counsel means the person appointed to the position of First Parliamentary Counsel under subsection 4(1) of the Parliamentary Counsel Act 1970. initial explanatory statement: see section 15J. instrument means any writing or other document, and includes an instrument in electronic form. legislative instrument: see section 8. Note: This term has the same meaning when used in other Acts and instruments: see the definition of legislative instrument in section 2B of the Acts Interpretation Act 1901. making, in relation to an instrument, means the signing, sealing or other endorsement of the instrument by the person or body empowered to make it. modify: see subsection 5(2). notifiable instrument: see section 11. Note: This term has the same meaning when used in other Acts and instruments: see the definition in section 2B of the Acts Interpretation Act 1901. Office of Parliamentary Counsel means the office established by subsection 2(1) of the Parliamentary Counsel Act 1970. power delegated by the Parliament: an instrument made under a power delegated by the Parliament includes: (a) an instrument made under a power delegated by the Parliament to a person or body and then, under the authority of the Parliament, further delegated by that person or body to another person or body; and (b) an instrument that may be made under a power delegated by the Parliament as well as under a power given otherwise by law. Example: An instrument made under an Act as well as a prerogative power. primary law means an Act or an instrument made under an Act, or a provision of an Act or an instrument made under an Act. register means register on the Federal Register of Legislation. registered law or explanatory statement: see section 15Z. repeal, in relation to an instrument or a provision of an instrument, includes revoke or rescind the instrument or provision. Note: Section 5 defines amend, for a provision of an instrument, to include the repeal of a provision of the instrument. replacement explanatory statement: see section 15J. required compilation event, for an Act, legislative instrument or notifiable instrument: see section 15Q. responsible person: see section 6. rule‑maker: see section 6. rules means rules made by the First Parliamentary Counsel under section 61A. Note: These rules are legislative instruments. Regulations may also be made for the purposes of this Act (see section 62). supplementary explanatory statement: see section 15J. text includes any writing. Note: See the definition of writing in section 2B of the Acts Interpretation Act 1901. 5 Definitions of amend and modify (1) In this Act, amend includes: (a) for an Act or instrument—repeal, omit, insert, substitute, renumber or relocate a provision of the Act or instrument; and (b) for a provision of an Act or instrument—any of the following: (i) repeal or omit the provision (or a part of it); (ii) substitute another provision for the provision (or a part of it); (iii) insert another provision into the provision (or a part of it); (iv) renumber the provision (or a part of it); (v) relocate the provision (or a part of it); and (c) for an Act or instrument, or a provision of an Act or instrument—amend by implication; and (d) for an Act or instrument, or a provision of an Act or instrument—change its text in any other way. Note 1: Repeal, in relation to a provision of an instrument, includes revoke or rescind the provision (see the definition of repeal in section 4). Note 2: For the purposes of Part 2 of Chapter 2 (registration of compilations), an Act or instrument is amended by an Act or instrument, or a provision of an Act or instrument, when the amending Act or provision commences (see subsection 15Q(3)). (2) In this Act, modify an Act or instrument means modify the operation of the Act or instrument without amending its text. 6 Definitions of rule‑maker and responsible person Rule‑makers (1) In this Act, rule‑maker, for an instrument, means: (a) for an instrument made by the Governor‑General that is made under enabling legislation (whether or not it may also be made under any other power)—the Minister currently responsible for administering the provision of the enabling legislation under which the instrument is made; or (b) for an instrument made by the Governor‑General, in any other case—the Prime Minister, or a Minister prescribed by regulation for the purposes of this paragraph; or (c) for an instrument made by a person other than the Governor‑General—a person currently authorised to make the instrument. Responsible persons (2) In this Act, responsible person means: (a) for an Act or a provision of an Act—the Minister currently responsible for administering the Act or provision; or (b) for an instrument—the rule‑maker for the instrument. (3) If more than one Minister is currently responsible for administering an Act, or a provision of an Act: (a) each of those Ministers is a responsible person for the Act or provision (as the case may be); and (b) the performance of a function or duty under this Act (in relation to the Act or provision administered) by any of the Ministers discharges the function or duty. Part 2—Key concepts for legislative instruments and notifiable instruments 7 Simplified outline of this Part What are legislative instruments? Generally, the following are legislative instruments: • an instrument described or declared by a law (including this Act) to be a legislative instrument; • an instrument registered on the Federal Register of Legislation as a legislative instrument; • an instrument made under a power delegated by the Parliament that determines the law or alters its content. However, an instrument is not a legislative instrument if an Act (or a regulation under this Act) so provides. What are notifiable instruments? Generally, the following are notifiable instruments: • an instrument described or declared by a law (including this Act or a regulation under this Act) to be a notifiable instrument; • a commencement instrument; • an instrument (other than a legislative instrument) that is registered on the Federal Register of Legislation as a notifiable instrument. Generally, unlike legislative instruments, notifiable instruments are not subject to parliamentary scrutiny, nor are they subject to automatic repeal 10 years after registration. Other key concepts A legislative instrument or notifiable instrument commences on the day after the instrument is registered, or on another day provided by the instrument. Generally, the instrument does not apply retrospectively if that would adversely affect rights or impose liabilities. Generally, the same rules apply to the interpretation of legislative instruments and notifiable instruments as apply to the interpretation of Acts. Some special rules also apply to the construction of instruments. There are restrictions on the extent to which legislative instruments or notifiable instruments can incorporate matters by reference to external documents. 8 Definition of legislative instrument (1) A legislative instrument is an instrument to which subsection (2), (3), (4) or (5) applies. Note: Instruments that can be legislative instruments may be described by their enabling legislation in different ways, for example as regulations, rules, ordinances or determinations. Primary law provides for something to be done by legislative instrument (2) If a primary law gives power to do something by legislative instrument, then: (a) if the thing is done, it must be done by instrument; and (b) that instrument is a legislative instrument. Example 1: A primary law provides that "The Minister may, by legislative instrument, determine licence conditions for the purposes of this section.". Example 2: A primary law provides as follows: "(1) The Chief Executive may, by instrument, determine licence conditions. (2) The Chief Executive may, by instrument, exempt a person from the requirement under this Act to hold a licence. (3) An instrument made by the Chief Executive under subsection (1) or (2) is a legislative instrument.". Instruments registered on the Federal Register of Legislation (3) An instrument made under a power delegated by the Parliament is a legislative instrument if it is registered as a legislative instrument. Note: An instrument made under a power delegated by the Parliament may be a legislative instrument because it is registered as a legislative instrument, whether or not it is a legislative instrument because of another provision of this section. Instruments that determine or alter the law etc. (4) An instrument is a legislative instrument if: (a) the instrument is made under a power delegated by the Parliament; and (b) any provision of the instrument: (i) determines the law or alters the content of the law, rather than determining particular cases or particular circumstances in which the law, as set out in an Act or another legislative instrument or provision, is to apply, or is not to apply; and (ii) has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right. Instruments declared to be legislative instruments (5) An instrument is a legislative instrument if it is declared by section 10 or 57A to be a legislative instrument. Note: Section 10 declares regulations and some other instruments to be legislative instruments. Section 57A declares some instruments to be legislative instruments that were made under a power delegated by the Parliament before 1 January 2005, when the substantive provisions of this Act commenced. Instruments that are not legislative instruments (6) Despite subsections (4) and (5), an instrument is not a legislative instrument if it is: (a) declared by an Act not to be a legislative instrument; or (b) prescribed by regulation for the purposes of this paragraph. (7) However, subsection (6) does not apply to an instrument that is a legislative instrument under subsection (3) by registration. (8) Despite anything else in this section, the following are not legislative instruments, and cannot become legislative instruments under subsection (3) (by being registered as legislative instruments): (a) an instrument that is a notifiable instrument because of subsection 11(1) (primary law gives power to do something by notifiable instrument); (b) a commencement instrument; (c) a compilation of a legislative instrument or notifiable instrument; (d) rules of court or a compilation of rules of court; (e) an explanatory statement for a legislative instrument, or rules of court mentioned in paragraph (d). Note: Rules of court may, however, be registered under this Act, and may be otherwise treated as if they were legislative instruments by their enabling legislation. 9 Inference of legislative character No implication of legislative character (or otherwise) (1) The fact that an instrument is a legislative instrument because of subsection 8(2), (3) or (5) does not imply that the instrument is, or must be, of legislative character (within the ordinary meaning of that term). (2) The fact that an instrument is not a legislative instrument because of subsection 8(6) does not imply that the instrument is not, or must not be, of legislative character (within the ordinary meaning of that term). No inference for other instruments (3) In determining whether an instrument made under a provision of a primary law is a legislative instrument under subsection 8(4), no inference may be drawn from the fact that an instrument made under another provision of that primary law, or any other primary law, is a legislative instrument, or is not a legislative instrument. Example: In determining whether a Ministerial direction under a provision of a primary law is a legislative instrument, no inference may be drawn from the fact that a Ministerial direction under another provision of the primary law is described as a legislative instrument. 10 Instruments declared to be legislative instruments (1) For the purposes of subsection 8(5), each of the following is a legislative instrument: (a) a regulation or Proclamation (other than a Proclamation that is a commencement instrument) made under a power delegated by the Parliament; (b) a Territory Ordinance covered by subsection (2), or a regulation, rule or by‑law under such an Ordinance; (c) an instrument prescribed by regulation for the purposes of this paragraph; (d) an instrument that includes a provision that amends or repeals another legislative instrument. Note: Commencement instruments, which may be Proclamations, are notifiable instruments: see section 11. (2) The following Territory Ordinances are covered by this subsection: (a) an Ordinance made under a power delegated by the Parliament in an Act providing for the government of a non‑self‑governing Territory; (b) an Ordinance made under subsection 12(1) of the Seat of Government (Administration) Act 1910 that has not become an enactment (as defined in the Australian Capital Territory (Self‑Government) Act 1988). 11 Definition of notifiable instrument What is a notifiable instrument? (1) If a primary law gives power to do something by notifiable instrument, then: (a) if the thing is done, it must be done by instrument; and (b) that instrument is a notifiable instrument. Example 1: A primary law provides that "The Minister may, by notifiable instrument, approve a form for the purposes of this section.". Example 2: A primary law provides as follows: "(1) The Chief Executive may, by instrument, appoint an inspector for the purposes of section [X]. (2) The Chief Executive may, by instrument, approve a form for the purposes of section [Y]. (3) An instrument made by the Chief Executive under subsection (1) or (2) is a notifiable instrument.". (2) Each of the following is a notifiable instrument: (a) a commencement instrument for an Act, legislative instrument or notifiable instrument, or for a provision of an Act or such an instrument; (b) an instrument, other than a legislative instrument, prescribed by regulation for the purposes of this paragraph; (c) an instrument, other than a legislative instrument, that is registered as a notifiable instrument, if the instrument is made under a power delegated by the Parliament or another power given by law; (d) an instrument, other than a legislative instrument, that includes a provision that amends or repeals another notifiable instrument. Note: The effect of paragraph (c) is that an instrument (other than a legislative instrument) may be a notifiable instrument because it is registered as a notifiable instrument, even if it would not otherwise be a notifiable instrument because of this section. For a corresponding provision relating to legislative instruments, see subsection 8(3). Modification of the operation of this Act (3) The enabling legislation for a notifiable instrument, or a regulation under this Act in relation to a notifiable instrument, may modify the operation of this Act in relation to the instrument. Example: Such a regulation may provide that a provision of this Act about explanatory statements that is expressed to apply in relation to legislative instruments is also to apply to a particular class of notifiable instruments. Registration to satisfy other publication or notification requirements (4) If an Act or an instrument requires an instrument (other than a legislative instrument), or the particulars of the instrument's making, to be published or notified in the Gazette or in any other way, then, unless the contrary intention appears, the requirement is taken to be satisfied if the instrument is registered as a notifiable instrument. 12 Commencement of legislative instruments and notifiable instruments When do legislative instruments and notifiable instruments commence? (1) A legislative instrument or a notifiable instrument commences: (a) at the start of the day after the day the instrument is registered; or (b) so far as the instrument provides otherwise—in accordance with such provision. Note: The instrument may provide for its commencement by enabling a commencement instrument to be made: see subsection (5). Retrospective commencement (1A) Despite any principle or rule of common law, a legislative instrument or notifiable instrument may provide that the instrument, or a provision of the instrument, commences before the instrument is registered. Note: The effect of this subsection is to allow legislative and notifiable instruments to commence retrospectively (subject to subsection (2)). This subsection is subject to a contrary provision (see subsection (4)). Retrospective application (2) However, if a legislative instrument or notifiable instrument, or a provision of such an instrument, commences before the instrument is registered, the instrument or provision does not apply in relation to a person (other than the Commonwealth or an authority of the Commonwealth) to the extent that as a result of that commencement: (a) the person's rights as at the time the instrument is registered would be affected so as to disadvantage the person; or (b) liabilities would be imposed on the person in respect of anything done or omitted to be done before the instrument is registered. Retrospective commencement or application subject to contrary provision (4) The effect of subsection (1A) or (2) in relation to an instrument is subject to any contrary provision in an Act. Commencement instruments (5) Without limiting paragraph (1)(b), for the purposes of that paragraph, a legislative instrument or notifiable instrument may authorise the making of a commencement instrument in relation to the legislative instrument or notifiable instrument. 13 Construction of legislative instruments and notifiable instruments (1) If enabling legislation confers on a person the power to make a legislative instrument or notifiable instrument, then, unless the contrary intention appears: (a) the Acts Interpretation Act 1901 applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and (b) expressions used in any instrument so made have the same meaning as in the enabling legislation as in force from time to time; and (c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the person to make the instrument. (2) If the making of a legislative instrument or notifiable instrument would, apart from this subsection, be construed as being in excess of the power to make the instrument, 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 person the power to make a legislative instrument or notifiable instrument: (a) specifying, declaring or prescribing a matter; or (b) doing anything in relation to a matter; then, in exercising the power, the person may identify the matter by referring to a class or classes of matters. (4) For the purposes of subsection (3), matter includes thing, person and animal. (5) The amendment of a legislative instrument or notifiable instrument by an Act does not prevent the instrument, as so amended, from being amended or repealed by a person who is currently authorised under the enabling legislation for the instrument to make instruments of the same kind. Note: This section has a parallel, in relation to instruments other than legislative instruments or notifiable instruments, in subsection 33(3AB) and 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 by a legislative instrument or notifiable instrument, the instrument may, unless the contrary intention appears, make provision in relation to that matter: (a) by applying, adopting or incorporating, with or without modification, any of the following, as in force at a particular time or as in force from time to time: (i) the provisions of an Act; (ii) the provisions of a legislative instrument covered by subsection (3); (iii) the provisions of rules of court; 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: (i) the time the first‑mentioned instrument commences; or (ii) a time before the first‑mentioned instrument commences (whether or not the other instrument is still in force, or the other writing still exists, at the time the first‑mentioned instrument commences). (2) Unless the contrary intention appears, the legislative instrument or notifiable 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. (3) The following legislative instruments are covered by this subsection: (a) disallowable legislative instruments; (b) legislative instruments that were disallowable under the Acts Interpretation Act 1901 or any other Act at any time before 1 January 2005. Note: The substantive provisions of this Act commenced on 1 January 2005. Forms (4) If a legislative instrument or notifiable instrument provides for a form to be used, this section does not apply in relation to the form. Note: This section has a parallel, in relation to instruments that are not legislative instruments, in section 46AA of the Acts Interpretation Act 1901. Chapter 2—Registration of Acts, legislative instruments and notifiable instruments Part 1—The Federal Register of Legislation Division 1—Simplified outline of this Part 15 Simplified outline of this Part The Federal Register of Legislation contains the following: • Acts, legislative instruments and notifiable instruments as made, and explanatory statements for legislative instruments; • compilations of Acts, legislative instruments and notifiable instruments; • other relevant documents and information. Rule‑makers for legislative instruments and notifiable instruments are responsible for lodging the instruments for registration (together with explanatory statements for legislative instruments). Legislative instruments are not enforceable unless registered. Responsible persons for Acts, and rule‑makers for legislative instruments or notifiable instruments, must notify the First Parliamentary Counsel of some events affecting the status of the Acts or instruments. Division 2—Federal Register of Legislation 15A Federal Register of Legislation—establishment and maintenance (1) The First Parliamentary Counsel must establish and maintain a register of Acts, legislative instruments and notifiable instruments, to be known as the Federal Register of Legislation. Note 1: The contents of the Federal Register of Legislation may be accessed on the approved website (see section 15C). Note 2: The Federal Register of Legislation in its initial form consists of the following: (a) the contents of the Federal Register of Legislative Instruments established under this Act, when this Act was known as the Legislative Instruments Act 2003; (b) the contents of the Acts database under the Acts Publication Act 1905 (which was repealed when this section commenced); (c) other legislative material published on the whole‑of‑government legislation website known as ComLaw. (2) The Register must contain the following: (a) Acts as made that are registered under this Part; (b) legislative instruments and notifiable instruments as made that are registered under this Part; (c) compilations, registered under this Part, of Acts, legislative instruments and notifiable instruments; (d) explanatory statements, registered under this Part, for legislative instruments; (e) other documents registered under this Part. (3) The Register may contain additional documents if the First Parliamentary Counsel considers that the documents are likely to be useful to users of the Register, including the following (without limitation): (a) Acts as made (other than Acts registered under this Part); (b) instruments as made (other than legislative instruments or notifiable instruments registered under this Part); (c) Gazette notices; (d) compilations of Acts or instruments (other than compilations registered under this Part); (e) documents that may be considered under section 15AB of the Acts Interpretation Act 1901 (and that section as applied by section 13 of this Act) in working out the meaning of an Act, legislative instrument or notifiable instrument, for example, an explanatory memorandum for an Act. (4) The First Parliamentary Counsel may include in the Register any information that he or she considers likely to be useful to users of the Register. (5) Without limiting subsection (1), the First Parliamentary Counsel may, subject to this Act and the rules, do anything he or she considers necessary or desirable to ensure that the Register is accurate and up‑to‑date, and contains material likely to be useful to users of the Register. 15B Federal Register of Legislation—complete record of registered laws The Federal Register of Legislation is, for all purposes, taken to be a complete and accurate record of all registered Acts, legislative instruments and notifiable instruments. Note: For authorised versions of Acts, legislative instruments, notifiable instruments and compilations, and judicial notice of authorised versions, see Part 3 of this Chapter. 15C Federal Register of Legislation—access to registered material on approved website The First Parliamentary Counsel must ensure that registered Acts, legislative instruments, notifiable instruments and compilations, and other registered documents, are available to the public on a website (an approved website) prescribed by the rules. 15D Federal Register of Legislation—rectification of Register (1) If: (a) the First Parliamentary Counsel becomes aware that the Register contains an error; and (b) the error is that: (i) for an Act as assented to—the text of the Act as it appears in the Register is not the same as the text of the Act as assented to; or (ii) for a legislative instrument or notifiable instrument as made by the rule‑maker—the text of the instrument as it appears in the Register is not the same as the text of the instrument as made by the rule‑maker; or (iii) for a compilation—the compilation as it appears in the Register does not represent the state of the law that it purports to represent; or (iv) for any other document on the Register—the text of the document as it appears in the Register is not the same as the text of the original document; the First Parliamentary Counsel must arrange for the error in the Register to be rectified as soon as possible. Note: A disallowable legislative instrument may be required to be re‑tabled in the Parliament as a result of the rectification (see section 15DA). (2) The First Parliamentary Counsel must include in the Register a statement that the rectification has been made, and a brief outline of the rectification in general terms. (3) The rectification: (a) does not affect any right or privilege that was acquired, or that accrued, because of reliance on the content of the Register before the rectification was made; and (b) does not impose or increase any obligation or liability that was incurred before the rectification was made. Rectification does not affect time of registration (4) To avoid doubt, the rectification of an error under subsection (1) in relation to an instrument does not affect the time at which the instrument is taken to have been registered. Note: For example, subsection (1) does not affect the commencement of an instrument that is expressed to commence on the day after registration. 15DA Requirement for re‑tabling and new disallowance period after rectification of Register (1) This section applies if: (a) the First Parliamentary Counsel rectifies an error in the Register referred to in subparagraph 15D(1)(b)(ii); and (b) the rectification results in a version (the originally tabled version) of a disallowable legislative instrument that was previously registered being replaced by another version (the correct version) of the instrument; and (c) at the time of the rectification, the originally tabled version of the instrument has been laid before either or both Houses of the Parliament under subsection 38(1). Requirement for re‑tabling (2) The First Parliamentary Counsel must arrange for a copy of the correct version of the instrument to be delivered to each House of the Parliament to be laid before each House within 6 sitting days of that House after the rectification. Note: The re‑tabling of the instrument does not affect any disallowance of the instrument. In all other cases, the re‑tabling of the instrument starts a new disallowance period (see subsections (3) and (4)). Application of new disallowance period (3) The following applies (subject to subsection (4)) for the purposes of this Act: (a) the instrument is taken to have been delivered to, and laid before, a House of the Parliament under subsection 38(1) when the instrument is delivered to, and laid before, that House under subsection (2) of this section (except for the purposes of subsection 39(2)); (b) the instrument becomes subject to disallowance under Part 2 of Chapter 3; (c) section 46 applies as if the instrument had been registered at the time of the rectification; (d) if the disallowance period for the originally tabled version has ended—any repeal of the instrument or a provision of the instrument under section 48A or 48C is taken not to have occurred; (e) if: (i) a notice of motion to disallow the instrument or a provision of the instrument has been given in a House of the Parliament; and (ii) the notice has not been withdrawn; and (iii) the motion has not been disposed of; at the time the correct version of the instrument is laid before a House as mentioned in subsection (2)—that notice of motion is taken to have been given in that House on the sitting day of that House after the correct version of the instrument is laid before that House; (f) if a provision of the instrument (but not the whole instrument) has previously been disallowed—the laying before a House of the Parliament as mentioned in subsection (2) does not affect the previous disallowance of the provision. (4) Subsection (3) does not apply in relation to an instrument if, at the time the instrument is delivered to a House of the Parliament under subsection (2), the instrument has been disallowed. Section does not affect time of registration (5) To avoid doubt, the laying before a House of the Parliament of an instrument as mentioned in subsection (2) does not affect the time at which the instrument is taken to have been registered (except as provided by paragraph (3)(c)). 15E Federal Register of Legislation—keeping the Register The rules may provide for, or in relation to, the following: (a) keeping the Federal Register of Legislation; (b) giving unique identifiers to registered Acts, legislative instruments, notifiable instruments and compilations, and other registered documents; (c) numbering for series of legislative instruments, notifiable instruments and other documents in the Register; (d) including additional documents in the Register and removing them from the Register; (e) including information in the Register, changing it and removing it from the Register. Division 3—Registration on Federal Register of Legislation 15F Registration of Acts The First Parliamentary Counsel must register an Act as soon as practicable after the Act is assented to. 15G Lodgement of legislative instruments and notifiable instruments, and other material Legislative instruments and notifiable instruments (1) The rule‑maker for a legislative instrument must lodge the instrument for registration as a legislative instrument as soon as practicable after the instrument is made. (2) The rule‑maker for a notifiable instrument must lodge the instrument for registration as a notifiable instrument as soon as practicable after the instrument is made. (3) The rule‑maker for an instrument made under a power delegated by the Parliament, other than a legislative instrument or notifiable instrument, may lodge the instrument for registration as a legislative instrument or notifiable instrument. Note: For instruments that become legislative instruments by registration, see subsection 8(3). For instruments that become notifiable instruments by registration, see paragraph 11(2)(c). Explanatory statements for legislative instruments (4) The rule‑maker for an instrument that is lodged for registration as a legislative instrument must: (a) lodge an initial explanatory statement for the instrument for registration as soon as practicable after the instrument is lodged for registration; and (b) lodge any supplementary explanatory statement or replacement explanatory statement for the instrument for registration as soon as practicable after it is prepared. Note: For explanatory statements and supplementary and replacement explanatory statements, see section 15J. Other documents (5) The rule‑maker for an instrument that is, or that is to be, registered as a legislative instrument or notifiable instrument may lodge a document that relates to the instrument for registration. 15H Registration of legislative instruments and notifiable instruments, and other documents (1) If an instrument is lodged for registration as a legislative instrument or notifiable instrument in accordance with section 15G and the rules, the First Parliamentary Counsel must register the instrument: (a) if the instrument is lodged for registration as a legislative instrument—as a legislative instrument; or (b) if the instrument is lodged for registration as a notifiable instrument—as a notifiable instrument. (2) If an instrument or document is lodged for registration otherwise than as a legislative instrument or notifiable instrument, in accordance with section 15G and the rules, the First Parliamentary Counsel must register the instrument or document accordingly. (3) However, the First Parliamentary Counsel must not register an instrument or document if: (a) for a document lodged for registration otherwise than as a legislative instrument or notifiable instrument—the First Parliamentary Counsel considers that: (i) the document is not likely to be useful to users of the Register; or (ii) it would otherwise be inappropriate to register the document; or (b) before the instrument or document is registered, the person lodging the instrument or document (or another person acting on behalf of the responsible person for the instrument, or for the instrument to which the document relates) withdraws the lodgement. (4) If the First Parliamentary Counsel does not register an instrument or document because of paragraph (3)(a), he or she must give written notice to the person lodging the instrument or document. 15J Explanatory statements Definition of explanatory statement (1) An explanatory statement for a legislative instrument is one of the following statements prepared for laying before each House of Parliament: (a) a statement (an initial explanatory statement) for the instrument that complies with subsection (2); (b) a statement (a replacement explanatory statement) for the instrument that: (i) replaces an explanatory statement for the instrument that has already been registered; and (ii) complies with subsection (2); (c) a statement (a supplementary explanatory statement) for the instrument that: (i) amends an initial explanatory statement or a replacement explanatory statement; and (ii) complies with subsection (3). Requirements for initial and replacement explanatory statements (2) An initial explanatory statement, or a replacement explanatory statement, for a legislative instrument must: (a) be approved by the rule‑maker; and (b) explain the purpose and operation of the instrument; and (c) if any documents are incorporated in the instrument by reference—contain a description of the incorporated documents and indicate how they may be obtained; and (d) if consultation was undertaken under section 17 before the instrument was made—contain a description of the nature of that consultation; and (e) if no such consultation was undertaken—explain why no such consultation was undertaken; and (f) if the instrument is a disallowable legislative instrument—contain a statement of compatibility prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011; and (g) contain such other information as is prescribed by regulation. Requirements for supplementary explanatory statements (3) A supplementary explanatory statement for a legislative instrument must: (a) be approved by the rule‑maker; and (b) contain such other information as is prescribed by regulation. Single explanatory statements—one or more legislative instruments (4) A single explanatory statement may relate to one or more legislative instruments. 15K Registration—enforceability of legislative instruments (1) A legislative instrument is not enforceable by or against any person (including the Commonwealth) unless the instrument is registered as a legislative instrument. (2) A failure by the rule‑maker to lodge an explanatory statement in relation to a legislative instrument for registration as required by subsection 15G(4) does not affect the validity or enforceability of the instrument. 15L Events affecting the currency or accuracy of the Register (1) The responsible person for a registered Act, legislative instrument or notifiable instrument must give notice to the First Parliamentary Counsel of the occurrence of any of the following events in relation to the Act or instrument: (a) an event resulting in, or otherwise affecting, the commencement of the Act or instrument (or a provision of the Act or instrument); (b) a discretionary compilation event for the Act or instrument; (c) an event resulting in the Act or instrument (or a provision of the Act or instrument) being repealed, lapsing, expiring or otherwise ceasing to be in force; (d) an event resulting in the Act or instrument, or a provision of the Act or instrument, being (or being declared by a court or tribunal to be) invalid or unenforceable; (e) the responsible person's becoming aware of: (i) an error in the Register to which subsection 15D(1) (Federal Register of Legislation—rectification of Register) may apply; or (ii) any other error in the Register; (f) another event prescribed by the rules. Example: If a registered legislative instrument is expressed to commence when a particular treaty comes into force for Australia, paragraph (1)(a) would require the responsible person for the instrument to notify the First Parliamentary Counsel when the treaty comes into force. (2) However, subsection (1) does not require the responsible person to give notice to the First Parliamentary Counsel of any of the following events in relation to a registered Act or instrument: (a) the occurrence of a day or time specified in the Act or instrument, or the making of a commencement instrument, resulting in, or otherwise affecting, the commencement of the Act or instrument (or a provision of the Act or instrument); (b) a required compilation event for the Act or instrument; (c) for a disallowable legislative instrument—the disallowance of: (i) the instrument (or a provision of the instrument); or (ii) another legislative instrument (or a provision of another legislative instrument) that amends the instrument; (d) for a legislative instrument or notifiable instrument—the amendment or repeal of the instrument by: (i) the operation of Part 3 of Chapter 3 (repeal of spent instruments or provisions); or (ii) the operation of Part 4 of Chapter 3 (sunsetting of legislative instruments); (e) another event prescribed by the rules. 15M Rules for lodgement and registration The rules may provide for, or in relation to, any of the following: (a) the lodgement of instruments and documents for registration, including any or all of the following: (i) the form in which instruments and documents must or may be lodged; (ii) any other matters affecting how instruments and documents must or may be lodged; (iii) the information that must or may be provided with instruments and documents; (iv) the certification of instruments and documents; (v) other requirements to be satisfied for lodgement; (b) the identification of instruments and documents lodged for registration, including authorising the First Parliamentary Counsel to do any or all of the following: (i) adding a name to an unnamed instrument or document; (ii) amending the name of an instrument or document; (iii) adding anything to an instrument or document to assist in its identification; (iv) doing anything else in relation to an instrument or document to assist users of the Register to identify or refer to the instrument or document; (c) the withdrawal of lodgement of instruments or documents; (d) the registration of Acts, instruments and documents; (e) the refusal of registration of instruments and documents; (f) alternative arrangements for the registration of Acts, instruments and documents in the event of technical difficulties; (g) any other matter relating to the lodgement of instruments and documents; (h) any other matter relating to the registration of Acts, instruments and documents. Part 2—Compilations Division 1—Simplified outline of this Part 15N Simplified outline of this Part A compilation shows the text of an Act, legislative instrument or notifiable instrument as amended (if at all) and in force on the compilation date stated in the Act or instrument. The First Parliamentary Counsel must generally register a compilation after a registered Act or instrument is amended, and in some other circumstances. A rule‑maker for a legislative instrument or notifiable instrument must lodge a compilation for registration if the instrument is amended, or in some circumstances on notice from the First Parliamentary Counsel. The First Parliamentary Counsel may make editorial changes and some other changes in preparing a compilation of a registered Act or instrument, as long as they do not change the effect of the Act or instrument. Division 2—Registration of compilations 15P Registered compilations—information requirements (1) Without limiting the information that a registered compilation of an Act, legislative instrument or notifiable instrument (the principal law) may include, the registered compilation must include the following information: (a) the compilation date; (b) if any editorial changes are made in preparing the compilation—a statement that editorial changes have been made and a brief outline of the changes in general terms; (c) details (including commencement details) of any Act or instrument that amends the principal law; (d) the amendment history of provisions of the principal law; (e) any further information prescribed by the rules. (2) However, the information mentioned in any of paragraphs (1)(c) to (e) does not need to be included in the compilation if: (a) the First Parliamentary Counsel is satisfied that the information mentioned in that paragraph is otherwise appropriately available on an approved website to users of the Federal Register of Legislation; and (b) the compilation indicates in general terms how users of the Register may access that information on the approved website. 15Q Definitions of required compilation event and discretionary compilation event etc. Definitions (1) A required compilation event occurs for an Act, legislative instrument or notifiable instrument when: (a) the Act or instrument is expressly amended (otherwise than under section 48C or 48D); or (b) in the case of a disallowable legislative instrument: (i) a provision of the instrument is disallowed under section 42; or (ii) a provision of another disallowable legislative instrument has amended a provision of the instrument, but the amending instrument, or the amending provision, is disallowed under section 42; or (c) a provision of the Act or instrument is repealed under another Act or instrument (other than this Act), or because of the making of another Act or instrument; or (d) something else happens that is prescribed by the rules for the purposes of this paragraph. (2) A discretionary compilation event occurs for an Act, legislative instrument or notifiable instrument when: (a) a provision of the Act or instrument commences; or (b) in the case of a legislative instrument or notifiable instrument—the instrument is amended by section 48C or 48D; or (c) the Act or instrument is modified; or (d) the Act or instrument is impliedly amended; or (e) a provision of the Act or instrument is repealed under another provision of that Act or instrument; or (f) if no compilation has been registered for the Act or instrument—the text of the Act or instrument as registered otherwise ceases to show the text of the Act or instrument as in force; or (g) if a compilation has been registered for the Act or instrument—the text of the latest registered compilation otherwise ceases to show the text of the Act or instrument as amended (if at all) and in force; or (h) something else happens that is prescribed by the rules for the purposes of this paragraph. Note: Sections 48C and 48D provide for the automatic repeal of amending, repealing and commencement provisions of legislative instruments and notifiable instruments. When an Act or instrument is amended (3) For the purposes of this Division, an Act or instrument is (subject to subsection (4)) amended by an Act or instrument, or a provision of an Act or instrument, when the amending Act or provision commences. (4) Despite any other provision of this Act, a compilation of an Act or instrument is not required to be prepared or lodged for registration to take account of a retrospective commencement of an amendment of the Act or instrument. However, such a compilation of an Act or instrument may be prepared and lodged for registration. 15R Lodgement of compilations of instruments—required compilation events Compilation required to be prepared and lodged (1) If a required compilation event occurs for a legislative instrument or notifiable instrument, the rule‑maker must prepare and lodge for registration a compilation of the instrument for registration. Compilation date (2) The compilation date for the compilation must be the date of the required compilation event. Time for lodgement (3) The rule‑maker must lodge for registration the compilation required by subsection (1) within 28 days after the event occurs, or a longer period allowed by the First Parliamentary Counsel. Exceptions (4) This section does not apply to legislative instruments or notifiable instruments, or in circumstances, prescribed by rules made for the purposes of this subsection. Example: A circumstance prescribed by the rules may be if the First Parliamentary Counsel prepares and registers a compilation of a legislative instrument or notifiable instrument. 15S Lodgement of compilations of instruments—discretionary compilation events Compilation required to be prepared and lodged if notice given (1) If a discretionary compilation event occurs for a legislative instrument or notifiable instrument, the First Parliamentary Counsel may, by written notice given to the rule‑maker, require the rule‑maker, within a period stated in the notice, to prepare and lodge for registration a compilation of the instrument for registration. Compilation date (2) The compilation date for the compilation must be the date of the discretionary compilation event. Time for lodgement (3) If a notice is given under subsection (1) to a rule‑maker for an instrument, the rule‑maker must lodge for registration a compilation of the instrument within the period stated in the notice, or a longer period allowed by the First Parliamentary Counsel. 15T Registration of compilations Required compilation events for Acts (1) If a required compilation event occurs for an Act, the First Parliamentary Counsel must prepare and register a compilation of the Act as soon as practicable afterwards. Required compilation events for instruments (2) If a required compilation event occurs for a legislative instrument or notifiable instrument, the First Parliamentary Counsel must register a compilation of the instrument: (a) if a compilation is lodged