EXPLANATORY STATEMENT
Select Legislative Instrument 2005 No. 14
Issued by the Authority of the Attorney‑General
Subject - Legislative Instruments Act 2003
Legislative Instruments Amendment Regulations 2005 (No. 1)
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.
Subsection 57(2) of the Act provides, in respect of provisions providing for the disallowance of a legislative instrument that were in effect before 1 January 2005, that the disallowance provisions of the Act are taken to apply to the exclusion of those other provisions. However, subsection 57(5) provides that regulations may be made to preserve the operation of special disallowance provisions referred to in subsection 57(2), despite provisions to different effect in sections 42 to 48 of the Act. Sections 42 to 48 of the Act are the provisions setting out the disallowance regime applying to legislative instruments to which the Act applies. Thus, regulations made under subsection 57(5) will preserve special disallowance regimes rather than allow the disallowance regime under the Act to apply.
These regulations amend the Legislative Instruments Regulations 2004 to preserve the operation of the special statutory disallowance regime in section 22 of the Financial Management and Accountability Act 1997 (the FMA Act).
Under subsection 20(1) of the FMA Act, the Finance Minister may make a written determination to establish a Special Account. Under subsection 22(1) of the FMA Act, the Minister must cause a copy of the determination to be tabled in each House of the Parliament. Either House may, following a motion upon notice, pass a resolution disallowing the determination. However, subsection 22(3) provides that, to be effective, the resolution must be passed within 5 sitting days of the House after the copy of the determination was tabled. If no motion of disallowance is passed, subsection 22(4) provides that the determination takes effect on the day immediately after the last day upon which such a resolution could have been passed.
The Act specifies no conditions that need to be met before the power to make the proposed Regulations may be exercised.
The Amendment Regulations would be legislative instruments for the purposes of the Act. In accordance with subsection 18(1) of the Act, consultation on the Amendment Regulations is unnecessary or inappropriate as the Amendment Regulations do not have a direct, or substantial indirect, effect on business or restrict competition, and are of a minor or machinery nature and do not substantially alter existing arrangements.
Details of the Legislative Instruments Amendment Regulations are in the attached Schedule.
Authority: Section 62 of the
Legislative Instruments Act 2003
Schedule
Details of the Legislative Instruments Amendment Regulations
Regulation 1 provides that the name of Regulations is the Legislative Instruments Amendment Regulations 2005 (No. 1).
Regulation 2 provides that the Regulations commence on the day after they are registered. Because the Regulations are a legislative instrument, the Act requires that they must be registered on the Federal Register of Legislative Instruments in order to be effective.
Regulation 3 provides that Schedule 1 of the Regulations amends the Legislative Instruments Regulations 2004 (the Principal Regulations).
Schedule 1 Amendments
Item 1 This item inserts into Schedule 4 to the Principal Regulations, before the current reference in Schedule 4 to the Remuneration Tribunal Act 1973, a reference to section 22 of the Financial Management and Accountability Act 1997 (the FMA Act).
Section 20 of the FMA Act allows the Minister to establish Special Accounts by written determination. Subsection 22(4) of the FMA Act provides that a determination to create a Special Account is not effective until the day after the end of the five sitting day disallowance period provided for in section 22.
The amendment made by this item would preserve the operation of the special disallowance period in section 22 of the FMA Act. This would mean that determinations made under section 20 of the FMA Act would be subject to the disallowance regime set out in section 22 of the FMA Act and not the disallowance regime set out in Part 5 of the Act (sections 42 to 48).
Overview
The Legislative Instruments Amendment Regulations 2005 (No. 1) were enacted to preserve the special statutory disallowance regime outlined in section 22 of the Financial Management and Accountability Act 1997. These regulations were introduced to ensure that the specific disallowance procedure for Special Accounts established under the FMA Act is maintained, rather than the general disallowance regime provided for in the Legislative Instruments Act 2003. This was achieved by amending the Legislative Instruments Regulations 2004 to include a reference to section 22 of the FMA Act in Schedule 4, ensuring that the special disallowance period remains effective for determinations made under section 20 of the FMA Act. These regulations were issued under the authority of the Attorney-General and were deemed not to require consultation as they do not have a significant impact on business or competition and are of a minor nature.
Scope and Application
The Legislative Instruments Amendment Regulations 2005 (No. 1) pertain to the Legislative Instruments Act 2003 and specifically amend the Legislative Instruments Regulations 2004 to preserve the special disallowance regime outlined in section 22 of the Financial Management and Accountability Act 1997. The Regulations apply to the Financial Management and Accountability Act, ensuring that determinations made by the Finance Minister to establish Special Accounts under section 20 of the FMA Act are subject to the disallowance provisions of section 22 of the FMA Act rather than the general disallowance regime in the Legislative Instruments Act. This amendment ensures that disallowance resolutions must be passed within five sitting days of the determination being tabled in Parliament for the resolution to be effective. The Regulations do not apply to any other legislation or determinations outside the scope of the Financial Management and Accountability Act and are of a minor and machinery nature, thus not requiring extensive consultation as they do not substantially alter existing arrangements or have a direct or substantial indirect effect on business or competition.
Key Provisions
The Legislative Instruments Amendment Regulations 2005 (No. 1) primarily serve to amend the Legislative Instruments Regulations 2004. Specifically, they focus on preserving the special disallowance regime outlined in section 22 of the Financial Management and Accountability Act 1997 (FMA Act) (section 4). This is achieved by inserting a reference to section 22 of the FMA Act into Schedule 4 of the Principal Regulations (Schedule 1, Item 1). The Regulations stipulate that the disallowance period for determinations made under section 20 of the FMA Act remains as outlined in section 22 of the FMA Act, rather than being subject to the disallowance provisions in Part 5 of the Legislative Instruments Act 2003 (sections 42 to 48) (section 3).
Under these Regulations, the Finance Minister holds the authority to establish a Special Account through a written determination (section 6). This determination must then be tabled in each House of Parliament, as mandated by subsection 22(1) of the FMA Act. Either House has the power to pass a resolution disallowing the determination, but this resolution must be enacted within five sitting days of the determination being tabled (subsection 22(3) of the FMA Act). If no such motion is passed, the determination takes effect on the day immediately following the last day on which the disallowance resolution could have been passed (subsection 22(4) of the FMA Act).
Entities governed by these Regulations, primarily the Finance Minister and the Houses of Parliament, are subject to specific obligations. The Finance Minister must make a written determination to establish a Special Account and ensure that a copy of this determination is tabled in each House of Parliament (subsection 20(1) and subsection 22(1) of the FMA Act). Parliamentarians, on the other hand, must act within the stipulated five-day disallowance period to pass a resolution if they wish to disallow the Minister's determination. Failure to do so results in the determination taking effect as per the provisions outlined in the FMA Act.
Breaches of the disallowance regime set out in section 22 of the FMA Act are not explicitly addressed in the text provided. However, the consequences of not adhering to the disallowance period could potentially involve legal challenges regarding the validity of the determination to establish a Special Account. There are no specified maximum penalties in the text, but any legislative or procedural breaches could result in legal ramifications or parliamentary sanctions.