EXPLANATORY STATEMENT
Select Legislative Instrument 2009 No. 218
Issued by the authority of the Attorney-General
Legislative Instruments Act 2003
Legislative Instruments Amendment Regulations 2009 (No. 1)
Section 62 of the Legislative Instruments Act 2003 (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 LIA establishes a comprehensive regime for the registration, tabling, disallowance and sunsetting of all Commonwealth legislative instruments. 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 2009 (No. 1) (the Regulations) is to amend the Principal Regulations by omitting item 5 of Schedule 2 to the Principal Regulations. Regulation 8 of the Principal Regulations provides that an instrument mentioned in Schedule 2 to the Principal Regulations is not subject to disallowance by Parliament. Item 5 of Schedule 2 refers to an instrument made under subsection 31(1) of the Disability Discrimination Act 1992 (the DDA).
Section 31 of the DDA has recently been repealed and replaced by a new section 31 pursuant to item 62 of Part 1 of Schedule 2 to the Disability Discrimination and Other Human Rights Legislation Amendment Act 2009. That item commenced on 5 August 2009 – 28 days after the Royal Assent was received. New section 31 of the DDA provides that the Attorney-General may, by legislative instrument, formulate standards, to be known as disability standards, in relation to any area under Part 2 of the DDA. Part 2 provides that it is unlawful for a person to discriminate against a person on the ground of a disability of the other person. New subsection 31(4) provides that a legislative instrument made under section 31 does not take effect before the end of a period in which it could be disallowed in either House of the Parliament. This provision for disallowance replaced a power for the standards that were permitted to be made under the repealed section, to be amended by the Parliament. The new section 31, in providing for disallowance, is inconsistent with the provision of Item 5 of Schedule 2 to the Principal Regulations. The Regulations omit the inconsistent reference in consequence of that change.
No consultations have been undertaken in relation to the Regulations. The omission of Item 5 in Schedule 2 of the Principal Regulations is of a machinery nature and consequential upon the amendment of section 31 of the DDA.
The Regulations are a legislative instrument for the purposes of the LIA.
Details of the Regulations are in the Attachment.
Attachment
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Legislative Instruments Amendment Regulations 2009 (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, Item 5
This item omits item 5, instruments made under subsection 31(1) of the Disability Discrimination Act 1992, from Schedule 2 to the Principal Regulations.
This removes instruments made under subsection 31(1) of the Disability Discrimination Act 1992 from the exemption from disallowance in Parliament.
Overview
The Legislative Instruments Amendment Regulations 2009 (No. 1) were introduced to amend the Legislative Instruments Regulations 2004, specifically targeting item 5 of Schedule 2 to ensure consistency with recent legislative changes. Enacted by authority of the Attorney-General under the Legislative Instruments Act 2003, these regulations were necessary following the repeal and replacement of section 31 of the Disability Discrimination Act 1992. The original section had permitted the formulation of standards without parliamentary disallowance, a power inconsistent with the new section which now provides for disallowance. The amendments made by these regulations are consequential to the legislative change, removing the exemption from disallowance for instruments made under the new section 31 of the DDA, thereby aligning the legislative framework with the updated parliamentary oversight requirements.
Scope and Application
The Legislative Instruments Amendment Regulations 2009 (No. 1) pertain to the operation of the Legislative Instruments Act 2003, which governs the registration, tabling, disallowance and sunsetting of all Commonwealth legislative instruments. Specifically, these Regulations amend the Legislative Instruments Regulations 2004 by removing an exemption from disallowance in Parliament for certain instruments made under the Disability Discrimination Act 1992. The Disability Discrimination Act 1992 was recently amended, with section 31 being repealed and replaced by a new section 31. This new section allows the Attorney-General to formulate standards, known as disability standards, in relation to any area under Part 2 of the Act, which prohibits discrimination against a person on the ground of a disability. The Legislative Instruments Amendment Regulations 2009 (No. 1) ensure that legislative instruments made under the new section 31 are subject to disallowance by Parliament, aligning with the new legislative framework. The Regulations are a legislative instrument for the purposes of the Legislative Instruments Act 2003 and will commence on the day after they are registered on the Federal Register of Legislative Instruments.
Key Provisions
The main sections of the Legislative Instruments Amendment Regulations 2009 (No. 1) include the name of the Regulations (Regulation 1), the commencement date (Regulation 2), and the amendment of the Legislative Instruments Regulations 2004 (Regulation 3). Specifically, the Regulations amend Schedule 2 of the Principal Regulations by omitting item 5, which refers to instruments made under subsection 31(1) of the Disability Discrimination Act 1992 (Regulation 3, Schedule 1, Item 1). This change is consequential upon the amendment of section 31 of the Disability Discrimination Act 1992, which now provides for disallowance of standards formulated by the Attorney-General.
The Regulations impose obligations on the relevant parties to ensure compliance with the amended Legislative Instruments Act 2003 (LIA). The amendments require that instruments made under the new section 31 of the Disability Discrimination Act 1992 are no longer exempt from disallowance by Parliament. This means that these instruments will be subject to the disallowance process, allowing Parliament to review and potentially disallow them within the specified period. The omission of item 5 from Schedule 2 of the Principal Regulations aligns with the new legislative framework for disability discrimination standards.
Breach of the Legislative Instruments Act 2003, including non-compliance with the Legislative Instruments Amendment Regulations 2009 (No. 1), may result in civil or criminal consequences. Under section 16 of the LIA, an instrument that does not comply with the Act is invalid. However, the specific penalties for breach of these Regulations are not outlined in the Explanatory Statement. The penalties for non-compliance with the LIA generally include fines and potential imprisonment, depending on the nature and severity of the breach. The Regulations aim to ensure that the legislative process remains transparent and accountable, reflecting the updated legislative framework for disability standards.