Legislative Instruments Amendment Regulations 2008 (No. 1)

Administered by Attorney-General's Department

Legislation au F2008L01257 Regulations Not in force Legislative Instrument

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EXPLANATORY STATEMENT

 

Select Legislative Instrument 2008 No. 66

 

Issued by the Authority of the Attorney-General

 

Legislative Instruments Act 2003

 

Legislative Instruments Amendment Regulations 2008 (No. 1)

 

The Legislative Instruments Act 2003 (the LIA) establishes a comprehensive regime for the registration, tabling, disallowance and sunsetting of all Commonwealth legislative instruments.  Section 62 of the LIA provides that the Governor-General may make regulations prescribing all matters required or permitted by the LIA to be prescribed, or necessary or convenient to be prescribed for carrying out or giving effect to the LIA.

 

The Legislative Instruments Regulations 2004 (the Principal Regulations) facilitate the operation of the LIA by (among other things) providing exemptions from the LIA or parts of the LIA.

 

The purpose of the Legislative Instruments Amendment Regulations 2008 (No. 1) (the Regulations) is to amend the Principal Regulations to provide exemptions from disallowance and sunsetting for Fee Waiver Principles made under subsection 91(1B) of the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act).

 

Part 5 of the LIA provides for the various methods by which a legislative instrument or a provision of such an instrument may be disallowed and cease to have effect.  In every case, the pre-condition is that once a legislative instrument has been laid before the Parliament, a notice of motion of disallowance is given within 15 sitting days.  The purpose of this Part is to facilitate the scrutiny by the Parliament of legislative instruments.

Part 6 of the LIA provides for the automatic repeal or sunsetting of each legislative instrument 10 years after the date that the instrument must be placed on the Register.  The purpose of this part is to encourage regular review and re-making of legislative instruments thereby ensuring that they are kept up to date and only remain in force for so long as they are needed".

Section 91 of the Classification Act provides for the waiver of fees payable to the Director of the Classification Board or the Convenor of the Classification Review Board under the Classification Act.  The payment of fees may only be waived in accordance with written principles determined by the Minister under subsection 91(1B) of the Classification Act.  Fee waiver principles made by the Minister should be specifically made exempt because they are part of an intergovernmental scheme (the National Classification Scheme) and disallowance and sunsetting should not be unilaterally determined by the Commonwealth. 

 

The Regulations are minor and of a machinery nature and do not alter existing arrangements.  For these reasons, no consultation was undertaken.

 

Details of the Regulations are set out in the Attachment, including the reasons why the particular exemptions from the LIA were made.

 

The Regulations are a legislative instrument for the purposes of the LIA and commenced on the day after they were registered on the Federal Register of Legislative Instruments.


Attachment

Regulation 1 – Name of Regulations

 

This regulation provides that the title of the Regulations is the Legislative Instruments Amendment Regulations 2008 (No. 1).

 

Regulation 2 – Commencement

 

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

 

Regulation 3 – Amendment of Legislative Instruments Regulations 2004

 

This regulation provides that the Legislative Instruments Regulations 2004 (the Principal Regulations) are amended as set out in Schedule 1.

 

Schedule 1 – Amendments

 

Item [1] – Schedule 2, after item 2A

 

Item [1] inserts a new item 2AA after item 2A in Schedule 2 to the Principal Regulations.

 

New item 2AA provides an exemption from disallowance for Fee Waiver Principles made under subsection 91(1B) of the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act).

 

Item 8 of the Table in subsection 44(2) of the Legislative Instruments Act 2003 (the LIA) identifies Fee Waiver Principles made under subsection 91(1A) of the Classification Act, as a legislative instrument that is not subject to disallowance under section 42 of the LIA.  Item 10 of the Table in section 54 of the LIA identifies Fee Waiver Principles made under subsection 91(1A) of the Classification Act as a legislative instrument that is not subject to sunsetting pursuant to Part 6 of the LIA.

However, these exemptions are no longer effective following amendments made by the Classification (Publications, Films and Computer Games) Amendment Act 2007 as the Fee Waiver Principles are now made under subsection 91(1B) of the Classification Act.  These amendments commenced on 15 September 2007.

The policy reasons for exempting Fee Waiver Principles made under subsection 91(1A) from disallowance and sunsetting continue to apply to Fee Waiver Principles made under subsection 91(1B).  Fee Waiver Principles made under subsection 91(1A) were specifically made exempt because they are part of an intergovernmental scheme (the National Classification Scheme) and disallowance and sunsetting should not be unilaterally determined by the Commonwealth.  The nature of the Fee Waiver Principles has not changed as a result of the re-numbering of the enabling provision.

Item 44 of the Table in subsection 44(2) of the LIA permits exemptions from disallowance to be prescribed in regulations.  Regulation 8 of the Principal Regulations provides that for item 44 of the table in subsection 44 (2) of the Act, legislative instruments mentioned in Schedule 2 the Principal Regulations are prescribed.  Consequently, inserting new item 2AA into Schedule 2 is an amendment of a machinery nature to ensure Fee Waiver Principles made under the Classification Act continue to be exempt from disallowance.

 

Item [2] – Schedule 3, after item 2

 

Item [2] insert sa new item 2A after item 2 in Schedule 3 to the Principal Regulations.

 

New item 2A provides an exemption from sunsetting for fee waiver principles made under subsection 91(1B) of the Classification Act for the same reasons set out above in relation to disallowance.

 

Item 10 of the Table in subsection 54(2) of the LIA identifies Fee Waiver Principles made under subsection 91(1A) of the Classification Act as a legislative instrument that is not subject to sunsetting pursuant to Part 6 of the LIA.

 

Item 51 of the Table in subsection 54(2) also permits exemptions from sunsetting to be prescribed in regulations.  Regulation 9 of the Principal Regulations provides that for Item 51 of the Table in subsection 54(2) of the Act, legislative instruments mentioned in Schedule 3 are prescribed.  Consequently, inserting new item 2A into Schedule 3 is an amendment of a machinery nature to ensure Fee Waiver Principles made under the Classification Act continue to be exempt from sunsetting.

 

Overview

The Legislative Instruments Amendment Regulations 2008 (No. 1) were enacted to address the need for specific exemptions from disallowance and sunsetting for Fee Waiver Principles made under the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act). The Legislative Instruments Act 2003 (the LIA) established a comprehensive regime for the registration, tabling, disallowance, and sunsetting of all Commonwealth legislative instruments, but these amendments were required to ensure that Fee Waiver Principles, which are part of an intergovernmental scheme, are not unilaterally subject to disallowance or sunsetting by the Commonwealth. The Regulations were issued by the authority of the Attorney-General and are a legislative instrument under the LIA, commencing on the day after they were registered on the Federal Register of Legislative Instruments. These amendments were necessary following changes to the Classification Act, which altered the subsection under which Fee Waiver Principles are made, thereby necessitating adjustments to the exemptions outlined in the Legislative Instruments Regulations 2004.

Scope and Application

The Legislative Instruments Amendment Regulations 2008 (No. 1) amends the Legislative Instruments Regulations 2004 to provide specific exemptions for Fee Waiver Principles made under subsection 91(1B) of the Classification (Publications, Films and Computer Games) Act 1995. These exemptions protect the Fee Waiver Principles from disallowance and sunsetting under the Legislative Instruments Act 2003. The rationale behind these exemptions is that Fee Waiver Principles are part of an intergovernmental scheme known as the National Classification Scheme, and therefore, disallowance and sunsetting should not be unilaterally determined by the Commonwealth. The regulations do not alter existing arrangements but ensure that the Fee Waiver Principles retain their status as exempt from disallowance and sunsetting, consistent with the policy objectives of the National Classification Scheme. These regulations apply to the Commonwealth jurisdiction and do not extend to state or territory laws. The amendments are of a machinery nature and commenced on the day after they were registered on the Federal Register of Legislative Instruments.

Key Provisions

The Legislative Instruments Amendment Regulations 2008 (No. 1) amend the Legislative Instruments Regulations 2004 to provide exemptions from disallowance and sunsetting for Fee Waiver Principles made under subsection 91(1B) of the Classification (Publications, Films and Computer Games) Act 1995 (the Classification Act) (Regulation 3). These exemptions are intended to ensure that the Fee Waiver Principles, which are part of an intergovernmental scheme, are not unilaterally determined by the Commonwealth. The regulations insert new items into Schedule 2 and Schedule 3 of the Principal Regulations, creating exemptions for these principles from disallowance (item 2AA) and sunsetting (item 2A) respectively (Items [1] and [2]). Under the Legislative Instruments Act 2003 (the LIA), legislative instruments are subject to disallowance if a notice of motion is given within 15 sitting days after being laid before Parliament (Part 5). Additionally, each legislative instrument automatically sunsets and is repealed 10 years after the date it must be placed on the Register (Part 6). The Fee Waiver Principles, however, are exempt from these processes due to their intergovernmental nature, ensuring that their validity and applicability are not subject to unilateral federal decisions. The regulations impose obligations on the parties involved, primarily ensuring that the Fee Waiver Principles remain exempt from disallowance and sunsetting as per the amended Classification Act. The Minister must ensure that these principles continue to be made in accordance with the prescribed exemptions, and Parliament must refrain from disallowing or subjecting these principles to sunsetting. Additionally, the regulations require the ongoing maintenance of the Legislative Instruments Regulations 2004 to reflect these exemptions accurately. There are no specific offences, penalties, or civil/criminal consequences outlined for breaches of these regulations. However, any failure to comply with the legislative framework established by the LIA and the Classification Act could potentially lead to legal challenges or other administrative actions. The regulations themselves are minor and of a machinery nature, aiming to maintain the integrity and effectiveness of the legislative processes surrounding Fee Waiver Principles.

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