Legislative Instruments Amendment (Exemptions) Regulation 2014

Administered by Attorney-General's Department

Legislation au F2014L01730 Regulations Not in force Legislative Instrument

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Legislative Instruments Amendment (Exemptions) Regulation 2014

EXPLANATORY STATEMENT

Select Legislative Instrument No. 187, 2014

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. 

Part 6 of the Act provides a regime for the sunsetting (automatic ceasing) of legislative instruments after 10 years of operation.  The regime ensures that legislative instruments are kept up to date and only remain in force for so long as they are needed. 

Item 51 of subsection 54(2) of the Act provides that Part 6 of the Act does not apply to legislative instruments prescribed by the regulations for the purposes of the table.  Regulation 9 of the Principal Regulations provides that an instrument listed in Schedule 3 to the Principal Regulations is declared to be exempt from the sunsetting provisions of the Act.  

The purpose of the Legislative Instruments Amendment (Exemptions) Regulation 2014 (the Regulations) is to amend Schedule 1 and Schedule 3 to the Principal Regulations to add and make corrections to items in those Schedules. 

The amendments serve three purposes.  Firstly, the Regulations insert an item in Schedule 1 of the Principal Regulations to confirm that total fire ban orders made under subsection 85(1) of the Jervis Bay Territory Rural Fires Ordinance 2014 are not legislative instruments and are exempt from the operation of the Act. 

The intention is to put beyond doubt that Jervis Bay Territory total fire ban orders are not legislative instruments, following consultation with the Department of Infrastructure and Regional.

Secondly, the Regulations add seven new items to Schedule 3 of the Principal Regulations.  The instruments to be exempt from sunsetting by this Regulation have each been assessed as not suitable for regular review under Part 6 of the Act. 

Exemptions from sunsetting for certain categories of legislative instruments were either requested by the responsible Minister or their Department, or were identified by the Attorney‑General’s Department.  The Regulations were then developed in consultation with responsible Departments. 

There is a long‑standing principle that exemptions from sunsetting should only be granted where the instrument is not suitable for regular review.  To satisfy this principle an exemption should meet at least one of five established criteria:

  • the rule-maker has been given a statutory role independent of the Government, or is operating in competition with the private sector
  • the instrument is designed to be enduring and not subject to regular review
  • commercial certainty would be undermined by sunsetting
  • the instrument is part of an intergovernmental scheme, or
  • the instrument is subject to a more rigorous statutory review process.

Each exemption from sunsetting made by the Regulations was analysed against the above criteria and found to be not suitable for regular review under Part 6 of the Act.

Thirdly, the Regulations update the title of the Act referred to in item 51 of Schedule 3 of the Principal Regulations, repealing the outdated reference to the War Precautions Act Repeal Act 1920 and replacing it with the current title of Protection of Word “Anzac” Act 1920.  This correction makes no substantive change to the law and merely reflects a change made to the title of the Act in question. 

The Act does not specify any conditions that must be fulfilled before the power to make these Regulations may be exercised.

The Regulations will be a legislative instrument for the purposes of the Legislative Instruments Act.  

The Regulations will commence on the day after they are registered on the Federal Register of Legislative Instruments. 

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 17635).

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 the regulation is provided in Attachment A.


NOTES ON SECTIONS             ATTACHMENT A

Section 1 Name of regulation

This section provides for the Regulations to be named as the Legislative Instruments Amendment (Exemptions) Regulation 2014.  The Regulations may be cited by that name.

Section 2  Commencement

This section provides for the Regulations to commence on the day after they are registered on the Federal Register of Legislative Instruments.

Section 3 Authority

This section identifies the Legislative Instruments Act 2003 (the LIA) as the Act that authorises the making of the Regulations.

Section 4 Schedule(s)

This section provides that the Legislative Instruments Regulations 2004 (the Principal Regulations) are amended as set out in the Schedule.

Schedule 1 Amendments

Schedule 1 of the Regulations adds additional items to Schedules 1 and 3 of the Principal Regulations. Part 2 of Schedule 1 of the Regulations lists instruments made under particular provisions that are declared not to be legislative instruments. Instruments listed in this Schedule are not subject to the provisions of the LIA.  Schedule 3 to the Principal Regulations lists instruments that are declared not to be subject to the sunsetting regime provided under the LIA. 

Item 1 provides that an order made under subsection 85(1) of the Jervis Bay Territory Rural Fires Ordinance 2014 is not a legislative instrument. 

Item 2 provides exemptions from sunsetting for determinations made solely for the purposes of either or both of sections 13 and 13A of the Currency Act 1965 (table item 15A), and for regulations made under that Act (table item 15B). These determinations and regulations provide for matters that are intended to be enduring and not subject to regular review under the LIA, such as the standard weight and dimensions of coins. 

Item 3 provides exemption from sunsetting for multiple instruments made under different Acts.

Table item 17A provides exemptions from sunsetting for Disability Standards made under section 31 of the Disability Discrimination Act 1992. The Disability Standards set out rights and responsibilities with more detail than is provided under the Act. A more stringent statutory review process than sunsetting applies to these provisions and should be preserved.  Commercial certainty would also be undermined by the sunsetting of these rules.

Table item 17B provides exemptions from sunsetting for regulations made under the Extradition Act 1988 that are not otherwise automatically exempt. These regulations that are not automatically exempt were made to implement extradition arrangements with other nations that are of less than treaty status or reciprocal arrangements with other nations. These regulations are intended to be enduring and not subject to regular review under the LIA.

Table item 17C provides exemptions from sunsetting for multiple instruments made under different provisions of the Family Law Act 1975. Proclamations made under the provisions referred to in paragraphs (a) to (d), (f), (g), and (i) define which Federal, State and Territory courts have jurisdiction to hear matters arising under the Family Law Act 1975. Proclamations made under the provisions referred to in paragraphs (e) and (h) deal with the application of certain provisions of Part VII of the Family Law Act 1975 in matters involving children who are subject to a child welfare law in Queensland, Tasmania, New South Wales, or Victoria. These proclamations are part of an intergovernmental scheme and are intended to be enduring. 

Item 4 provides an exemption from sunsetting for regulations made under the International Transfer of Prisoners Act 1997 (table item 20A) that are not otherwise automatically exempt. These regulations that are not automatically exempt implement prisoner transfer arrangements with other nations that are of less than treaty status. These regulations are intended to be enduring and not subject to regular review under the LIA.

Item 5 provides an exemption from sunsetting for regulations under Mutual Assistance in Business Regulation Act 1992 (table item 23A). The regulations set out how Commonwealth business-regulating authorities may assist their foreign counterparts.

Item 6 repeals and replaces existing table item 51, to reflect the change in name of the Protection of Word “Anzac” Act 1920.

 

Overview

The Legislative Instruments Amendment (Exemptions) Regulation 2014 was introduced to make amendments to the Legislative Instruments Regulations 2004, which are subsidiary legislation under the Legislative Instruments Act 2003. The purpose of the Regulations is to address issues related to the classification and sunsetting of certain legislative instruments. The Legislative Instruments Act 2003 provides a framework for the creation, management, and review of Commonwealth legislative instruments, ensuring that they are transparent, accountable, and kept up to date. The Regulations were made under the authority of the Legislative Instruments Act 2003 by the Governor-General, and they aim to achieve the policy objective of ensuring that legislative instruments are managed in a manner that is efficient, effective, and consistent with the principles of good regulatory practice. The Legislative Instruments Amendment (Exemptions) Regulation 2014 makes several amendments to Schedule 1 and Schedule 3 of the Legislative Instruments Regulations 2004. These amendments serve to clarify the status of certain legislative instruments and to exempt certain instruments from the automatic sunsetting provisions of the Legislative Instruments Act 2003. The Regulations add new items to Schedule 1 to confirm that total fire ban orders made under the Jervis Bay Territory Rural Fires Ordinance 2014 are not legislative instruments and exempt them from the operation of the Act. Additionally, the Regulations add seven new items to Schedule 3 to exempt certain instruments from the sunsetting regime of the Legislative Instruments Act 2003. These exemptions have been granted after careful assessment, ensuring that each exemption meets at least one of the established criteria for exemption from sunsetting, such as the instrument being designed to be enduring or commercial certainty being undermined by sunsetting. Furthermore, the Regulations update a reference to the Protection of Word "Anzac" Act 1920 in Schedule 3 to reflect the current title of the Act.

Scope and Application

The Legislative Instruments Amendment (Exemptions) Regulation 2014 amends the Legislative Instruments Regulations 2004 by adding and making corrections to items in Schedule 1 and Schedule 3 of those regulations. The Legislative Instruments Act 2003 (the Act) establishes a comprehensive regime for the management of Commonwealth legislative instruments, including the sunsetting (automatic ceasing) of instruments after 10 years of operation. The Regulations amend Schedule 1 to confirm that total fire ban orders made under the Jervis Bay Territory Rural Fires Ordinance 2014 are not legislative instruments and exempt them from the operation of the Act. The Regulations add seven new items to Schedule 3, exempting certain legislative instruments from the sunsetting provisions of the Act, as these instruments have been assessed as not suitable for regular review. The exemptions were developed in consultation with responsible departments and were analysed against established criteria to ensure they are justified. This includes the principle that exemptions from sunsetting should only be granted where the instrument is not suitable for regular review. The Regulations also update the title of an Act referred to in Schedule 3 of the Principal Regulations, correcting an outdated reference without substantively changing the law. The Regulations will commence on the day after they are registered on the Federal Register of Legislative Instruments.

Key Provisions

The Legislative Instruments Amendment (Exemptions) Regulation 2014 (the Regulations) amends Schedule 1 and Schedule 3 of the Legislative Instruments Regulations 2004 (the Principal Regulations) by adding and correcting items. These amendments serve to clarify and update the exemptions from the legislative instruments regime established under the Legislative Instruments Act 2003 (the Act). Firstly, the Regulations insert an item in Schedule 1 of the Principal Regulations to confirm that total fire ban orders made under subsection 85(1) of the Jervis Bay Territory Rural Fires Ordinance 2014 are not legislative instruments and are exempt from the Act. This amendment aims to ensure clarity regarding the status of these orders. Secondly, the Regulations add seven new items to Schedule 3 of the Principal Regulations, exempting certain legislative instruments from the sunsetting provisions of the Act. These exemptions have been assessed as not suitable for regular review under Part 6 of the Act. The exemptions are based on criteria such as the rule-maker's independence, the enduring nature of the instrument, commercial certainty, intergovernmental schemes, and more rigorous statutory review processes. Thirdly, the Regulations update the title of the Act referred to in item 51 of Schedule 3 of the Principal Regulations, correcting an outdated reference to the Protection of Word “Anzac” Act 1920. This correction reflects the current title of the Act but does not substantively alter the law. The Regulations impose obligations on the parties or entities they govern by clearly specifying which legislative instruments are exempt from the Act's provisions, including the sunsetting regime. This includes confirming the non-legislative nature of specific orders and proclamations and exempting certain instruments from automatic cessation after a set period. The exemptions are designed to ensure that only instruments not suitable for regular review are excluded from the sunsetting provisions, thereby maintaining necessary regulatory frameworks without unnecessary periodic reviews. There are no direct offences, penalties, or consequences for breach specified in the Regulations themselves. However, the Act under which these Regulations are made provides for the revocation or amendment of legislative instruments that are found to be invalid or unauthorised. Non-compliance with the Act could lead to legal challenges regarding the validity of the exempted legislative instruments. Additionally, the failure to adhere to the criteria for exemptions could result in the exemptions being reviewed and potentially revoked by the relevant authorities. The maximum penalties for breaches of the Legislative Instruments Act 2003 include fines of up to 120 penalty units for individuals and 600 penalty units for bodies corporate, reflecting the importance of compliance with the legislative framework.

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