Legislative Instruments Amendment (Exemptions—Emergency Management Ordinances) Regulation 2015

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Legislative Instruments Amendment (Exemptions—Emergency Management Ordinances) Regulation 2015

EXPLANATORY STATEMENT

Select Legislative Instrument No. 81, 2015

Issued under the Authority of the Attorney‑General

 

OUTLINE

Section 62 of the Legislative Instruments Act 2003 (the Act) provides that the Governor‑General may make regulations prescribing all matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the Act.

The Act establishes a comprehensive regime for the management of Commonwealth legislative instruments. 

Section 7 of the Act lists categories of instruments that are not legislative instruments and therefore not subject to the Act.  Item 24 of the table in section 7(1) of the Act provides that instruments prescribed by the regulations for the purposes of that table are not legislative instruments.  Regulation 7 of the Legislative Instruments Regulations 2004 (the Principal Regulations) provides that an instrument listed in Schedule 1 to the Principal Regulations is not a legislative instrument. 

The purpose of the Legislative Instruments Amendment (Exemptions—Emergency Management Ordinances) Regulation 2015 (the Regulation) is to amend Schedule 1 of the Principal Regulations. 

The amendments insert three items into Schedule 1 of the Principal Regulations to confirm that the following are not legislative instruments and are exempt from the operation of the Act:

  1. each of the following instruments made under the Emergency Management Ordinance 2012 (CI) (CI Ordinance) or the Emergency Management Ordinance 2012 (CKI) (CKI Ordinance) following their proposed amendment by the Christmas Island and Cocos (Keeling) Islands Legislation Amendment (2015 Measures No. 1) Ordinance 2015 (Amendment Ordinance):
    1. an emergency situation declaration
    2. an extension of an emergency situation declaration
    3. a state of emergency declaration or
    4. an extension of a state of emergency declaration
  2. a declaration of a state of emergency made under the proposed Jervis Bay Territory Emergency Management Ordinance 2015 (Jervis Bay Ordinance). 

The intention is to put beyond doubt that declarations and extensions of declarations, of emergency situations or states of emergency made for the Territories of Jervis Bay, Christmas Island or the Cocos (Keeling) Islands are not legislative instruments.  The desirability of confirming this was established through consultation with the Department of Infrastructure and Regional Development.

The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulation may be exercised.

The Regulation is a legislative instrument for the purposes of the Act.

The exemptions commence on the later of the day after registration of the proposed Regulation, and the day the Amendment Ordinance or Jervis Bay Ordinance, respectively, commence. 

Regulatory impact analysis

Before this Regulation was made, its expected impact was assessed using the Preliminary Assessment tool approved by the Office of Best Practice Regulation (OBPR).  That assessment indicated that it will have no or low impact on business, individuals and the economy.  This assessment has been confirmed by the OBPR (OBPR reference 18850).

Statement of compatibility with human rights obligations

Before this Regulation was made, its impact on human rights was assessed using tools and guidance published by the Attorney‑General’s Department. This Regulation will make technical amendments to the Principal Regulations which will have no impact on the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.  This Regulation is compatible with human rights as it does not raise any human rights issues.

PROCESSES FOR REVIEW OF THIS REGULATION

This Regulation is subject to tabling and disallowance under Part 5 of the LIA, and will cease as if repealed on the day after the last of its provisions commence.

OTHER ISSUES

Matter incorporated by reference

This Regulation does not apply, adopt or incorporate other matter by reference.

More information

An explanation of the provisions and the Schedules to this Regulation is provided in Attachment A.


NOTES ON PROVISIONS AND SCHEDULES    ATTACHMENT A

Section 1 Name of Regulation

This section provides that the title of the Regulation is the Legislative Instruments Amendment (Exemptions—Emergency Management Ordinances) Regulation 2015. 

Section 2  Commencement

This section provides for the preliminary sections of the Regulation to commence on the day after it is registered on the Federal Register of Legislative Instruments.

The amendments relating to Christmas Island and the Cocos (Keeling) Islands commence on the later of the day after the Regulation is registered, and the day the proposed Christmas Island and Cocos (Keeling) Islands Legislation Amendment (2015 Measures No. 1) Ordinance 2015 (the Amendment Ordinance) commences.  The Amendment Ordinance is intended to make amendments to the Emergency Management Ordinance 2012 (Territory of Christmas Island) (CI Ordinance) and the Emergency Management Ordinance 2012 (Territory of Cocos (Keeling) Islands) (CKI Ordinance). 

The amendments relating to the Jervis Bay Territory commence on the later of the day after the Regulation is registered, and the day the proposed Jervis Bay Territory Emergency Management Ordinance 2015 (Jervis Bay Ordinance) commences. 

Section 3 Authority

This section provides that the Regulation is made under the Legislative Instruments Act 2003 (the Act). 

Section 4 Schedule(s)

This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulation has effect according to its terms.

Schedule 1 Amendments

Schedule 1 of the Regulation adds additional items to Schedule 1 to the Principal Regulation. Part 2 of Schedule 1 to the Principal Regulation lists instruments made under particular provisions that are declared not to be legislative instruments. Instruments listed in Schedule 1 of the Principal Regulation are not subject to the provisions of the Act. 

Item 1 inserts two new items into Part 2 of Schedule 1 to the Principal Regulation, confirming that:

a)      each of the following instruments made under the CI Ordinance:

  1. an emergency situation declaration;
  2. an extension of an emergency situation declaration;
  3. a state of emergency declaration;
  4. an extension of a state of emergency declaration, and

b)     each of the following instruments made under the CKI Ordinance:

  1. an emergency situation declaration;
  2. an extension of an emergency situation declaration;
  3. a state of emergency declaration;
  4. an extension of a state of emergency declaration

are not legislative instruments for the purposes of the Act. 

Item 2 inserts one more new item into Part 2 of Schedule 1 to the Principal Regulation confirming that a declaration of a state of emergency made under the proposed Jervis Bay Ordinance is not a legislative instrument for the purposes of the Act. 

The variation of a declaration of a state of emergency under the Jervis Bay Ordinance, and revocations of declarations or revocations of extensions made under the CI Ordinance or the CKI Ordinance, do not need to be formally exempted from the operation of the Act.  This is because such revocations or variations would already be covered by item 33 of Part 1 of Schedule 1 to the Principal Regulation, which provides that an instrument that varies or revokes a non-legislative instrument is itself not a legislative instrument for the purposes of the Act. 

An extension of an emergency situation declaration or a state of emergency declaration made under the CI Ordinance or the CKI Ordinance would be done by a separate instrument, and not by variation of the original declarations. As a result of this different mechanism for making extensions of such declarations, specific exemptions are necessary.  Item 33 of Part 1 of Schedule 1 to the Principal Regulation would not apply to these extensions. 

Overview

The Legislative Instruments Amendment (Exemptions—Emergency Management Ordinances) Regulation 2015 was enacted to clarify that specific emergency declarations and extensions made under certain emergency management ordinances in the Christmas Island, Cocos (Keeling) Islands, and Jervis Bay Territory are not to be considered legislative instruments under the Legislative Instruments Act 2003. This regulation was issued under the authority of the Attorney-General and aims to ensure that the declarations and extensions of emergency situations or states of emergency for these territories are exempt from the requirements and oversight stipulated in the Legislative Instruments Act. The regulation responds to consultations held with the Department of Infrastructure and Regional Development, affirming the need for these declarations to be outside the legislative instruments regime. This amendment to the Legislative Instruments Regulations 2004 was made to provide clarity and certainty regarding the status of emergency declarations and extensions in these territories. By exempting these instruments from the Act's provisions, the regulation ensures that they are not subject to the scrutiny and approval processes typically required for legislative instruments. This amendment was deemed necessary to streamline emergency management processes and avoid unnecessary bureaucratic hurdles during critical times.

Scope and Application

The Legislative Instruments Amendment (Exemptions—Emergency Management Ordinances) Regulation 2015 amends the Legislative Instruments Regulations 2004 to clarify that certain emergency declarations and extensions of declarations made under the Emergency Management Ordinance 2012 (CI) and the Emergency Management Ordinance 2012 (CKI) are not considered legislative instruments under the Legislative Instruments Act 2003. This clarification applies to emergency situation declarations, extensions of emergency situation declarations, state of emergency declarations, and extensions of state of emergency declarations made for the territories of Christmas Island, Cocos (Keeling) Islands, and Jervis Bay. These instruments are explicitly stated to be exempt from the operation of the Act, ensuring that they do not require the formal scrutiny and approval processes outlined in the Act. The amendments ensure that such emergency declarations and extensions are not subject to the requirements of the Act, thereby streamlining the process during emergency management responses in these territories. The exemptions apply from the later of the day after the regulation is registered or the day the related ordinances commence. The regulation itself is subject to disallowance and will cease to have effect after the commencement of its provisions.

Key Provisions

The Legislative Instruments Amendment (Exemptions—Emergency Management Ordinances) Regulation 2015 amends the Legislative Instruments Regulations 2004 to specify certain instruments related to emergency management in specific territories as non-legislative instruments. Specifically, the regulation confirms that emergency situation declarations, extensions of such declarations, state of emergency declarations, and extensions of state of emergency declarations made under the Emergency Management Ordinance 2012 for the territories of Christmas Island and the Cocos (Keeling) Islands are not subject to the Legislative Instruments Act 2003 (section 4(1)(a), (b), (c), and (d)). Additionally, it specifies that a declaration of a state of emergency made under the proposed Jervis Bay Territory Emergency Management Ordinance 2015 is also not a legislative instrument (section 4(2)). This regulation ensures that these specific instruments are exempt from the regulatory regime established by the Legislative Instruments Act. Entities and individuals involved in making or administering these emergency declarations under the specified ordinances for Christmas Island, the Cocos (Keeling) Islands, and the Jervis Bay Territory are subject to the exemptions provided by this regulation. These entities include the relevant local governments and emergency management authorities of the respective territories. The regulation exempts these specific instruments from the provisions of the Legislative Instruments Act, meaning they do not require formal registration, laying before Parliament, or other formalities that would apply to legislative instruments. This is intended to streamline the process of making such emergency declarations during critical times without unnecessary bureaucratic delays. There are no specific offences, penalties, or civil/criminal consequences outlined in the regulation for breaches of its provisions. The regulation itself is a technical amendment that confirms the status of certain instruments as non-legislative, thus relieving them from the procedural requirements of the Legislative Instruments Act. However, any failure to comply with the substantive laws under which these emergency declarations are made (i.e., the Emergency Management Ordinances) could result in separate legal consequences under those ordinances, such as administrative penalties or other legal actions. The regulation's focus is purely on clarifying the status of these instruments under the regulatory framework of the Legislative Instruments Act. The Legislative Instruments Amendment (Exemptions—Emergency Management Ordinances) Regulation 2015 is made under section 62 of the Legislative Instruments Act 2003, which allows for the prescribing of matters necessary for carrying out or giving effect to the Act. The regulation is designed to ensure that emergency declarations and related instruments in specified territories are not subject to the requirements of the Legislative Instruments Act, thereby facilitating quicker and more efficient responses during emergencies. The exemptions provided by the regulation are intended to support effective emergency management practices without imposing additional regulatory burdens during critical periods.

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