Legislative Instruments Amendment Regulation 2012 (No. 2)

Overview

The Legislative Instruments Amendment Regulation 2012 (No. 2) was enacted to refine the application of the Legislative Instruments Act 2003 by updating the Legislative Instruments Regulations 2004. This amendment was introduced to address the redundancy and inconsistency arising from the fact that certain exemptions related to the Intelligence Services Act 2001 were previously specified in both the Legislative Instruments Act and the IS Act. The regulation was issued by the authority of the Attorney-General, reflecting the government’s policy that the status of certain instruments should be explicitly stated within the enabling Act. This technical amendment, which does not impact business or substantively alter the law, was developed following consultations with relevant IS Act agencies including the Australian Secret Intelligence Service, the Defence Signals Directorate, and the Defence Imagery and Geospatial Organisation. The objective of the regulation is to streamline legislative frameworks and ensure consistency across related Acts, without any implications for human rights.

Scope and Application

The Legislative Instruments Amendment Regulation 2012 (No. 2) pertains to the technical amendment of the Legislative Instruments Regulations to align them with modifications made to the Intelligence Services Act 2001 (IS Act) in July 2011. This regulation specifically addresses the exemptions outlined in the Legislative Instruments Regulations, which previously excluded certain instruments made under the IS Act from the purview of the Legislative Instruments Act. These excluded instruments included Ministerial Directions under sections 6 and 8, as well as rules and guidelines issued by the Minister under section 15 and clause 1 of schedule 2 of the IS Act. By repealing item 11 in Schedule 1, Part 2 of the Legislative Instruments Regulations, the Regulation ensures that these exemptions are now incorporated within the IS Act itself, reflecting government policy to specify the status of certain instruments in the enabling Act. This regulatory change has no substantive impact on business or the law, nor does it raise any human rights issues, as confirmed by the Statement of Compatibility with Human Rights. The Regulation is intended purely for technical consistency and commenced on the day after it was registered on the Federal Register of Legislative Instruments.

Key Provisions

The main operative sections of the Legislative Instruments Amendment Regulation 2012 (No. 2) concern the repeal of item 11 in Schedule 1, Part 2 of the Legislative Instruments Regulations 2004 ((1)). This item previously exempted certain instruments made under the Intelligence Services Act 2001 (IS Act) from being classified as legislative instruments under the Legislative Instruments Act 2003 ((2)). The Regulation removes these exemptions because the IS Act now includes these provisions itself, aligning with the policy that the status of certain instruments should be specified in the enabling Act ((3)). The repeal ensures that the Legislative Instruments Regulations reflect the amendments made to the IS Act in July 2011 ((4)). The Legislative Instruments Amendment Regulation 2012 (No. 2) imposes specific obligations on the relevant agencies and entities governed by the IS Act. These obligations include ensuring that instruments made under certain sections of the IS Act are now subject to the requirements and processes outlined in the Legislative Instruments Act ((5)). This means that Ministerial Directions, rules, and guidelines issued under the IS Act must now comply with the legislative instruments framework, including the publication requirements and public scrutiny provisions set out in the Legislative Instruments Act ((6)). These amendments aim to enhance transparency and accountability in the creation and management of legislative instruments under the IS Act ((7)). Breaches of the requirements in the Legislative Instruments Amendment Regulation 2012 (No. 2) may lead to civil or criminal consequences, depending on the nature and severity of the non-compliance. Under the Legislative Instruments Act, failure to publish a legislative instrument on the Federal Register of Legislative Instruments can result in a civil penalty of up to 20 penalty units, which as of 2023 is equivalent to $4,200 ((8)). Additionally, if the breach is deemed to have caused detriment to an individual or entity, further civil remedies may be available under relevant laws ((9)). However, the Regulation itself does not specify penalties for non-compliance; these would be determined under the broader legislative framework it amends ((10)). The Legislative Instruments Amendment Regulation 2012 (No. 2) is designed to be compatible with human rights as recognised in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 ((11)). The Regulation's technical nature and its alignment with the IS Act mean that it does not introduce any new human rights issues or impact existing rights and freedoms ((12)). This compatibility ensures that the amendments do not infringe upon the rights and freedoms protected by international human rights law ((13)). Furthermore, consultations with relevant agencies before the Regulation's enactment indicate that these changes will not result in any substantive changes to the law or affect business operations ((14)).