EXPLANATORY STATEMENT
Select Legislative Instrument 2010 No. 319
Subject: Legislative Instruments Act 2003
Legislative Instruments Amendment Regulations 2010 (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.
The Act establishes a comprehensive regime for the management of Commonwealth legislative instruments and the Legislative Instruments Regulations 2004 (the Principal Regulations) facilitates the operation of the Act by, among other things, providing exemptions from the whole or part of the Act.
The purpose of the Legislative Instruments Amendment Regulations 2010 (No. 1)
(the Regulations) is to amend the Principal Regulations to provide an exemption from the whole of the Act for rules made under section 15 of the Intelligence Services Act 2001 (the Intelligence Services Act).
Section 15 of the Intelligence Services Act requires the Ministers responsible for Intelligence Services Act agencies to make written rules regulating the way that they communicate and retain intelligence information concerning Australian persons, known as Privacy Rules. The exemption from the Act addresses doubt surrounding the characterisation of the Privacy Rules and removes the requirement for the Privacy Rules to be registered and subject to disallowance and consultation requirements in the Act. The Privacy Rules are instead subject to Parliamentary oversight and consultation under the Intelligence Services Act. This Act requires consultation on any amendments to the Privacy Rules with the Attorney‑General, the Inspector-General of Intelligence and Security and the Parliamentary Joint Committee on Intelligence and Security.
Regulation 7 of the Principal Regulations provides that an instrument mentioned in Schedule 1 to the Principal Regulations is declared not to be a legislative instrument for the purposes of the Act. The Regulations insert a new paragraph (ba) into item 11, Part 2 of Schedule 1 to the Principal Regulations to prescribe an exemption for rules made under section 15 of the Intelligence Services Act.
The Regulations are minor and of a machinery nature and do not alter existing arrangements. The Regulations were developed following consultation with the Minister for Defence, Minister for Foreign Affairs and the Inspector-General of Intelligence and Security, who are responsible for Intelligence Services Act agencies and the Attorney-General.
Details of the Regulations are set out in the Attachment.
The Act specifies no conditions that need to be satisfied before the power to make the proposed Regulations may be exercised.
The Regulations are a legislative instrument for the purposes of the Act.
The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments.
ATTACHMENT
Details of the Legislative Instruments Amendment Regulations 2010 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Legislative Instruments Amendment Regulations 2010 (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 the Schedule.
Schedule – Amendments
Item [1] – Schedule 1, Part 2, item 11, after paragraph (b)
Item 1 of the Regulations inserts new material into Part 2 of Schedule 1 to the Principal Regulations. Part 2 of Schedule 1 lists instruments made under particular provisions that are declared not to be legislative instruments for the purposes of the Legislative Instruments Act 2003 (the Act).
Item 1 inserts a new paragraph (ba) in Schedule 1, Part 2 to the Principal Regulations. Paragraph (ba) inserts an exemption from the Act for rules made under section 15 of the Intelligence Services Act 2001.
Overview
The Legislative Instruments Amendment Regulations 2010 (No. 1) were enacted to address uncertainties and streamline processes related to the management of legislative instruments, particularly those concerning intelligence services. Enacted under Section 62 of the Legislative Instruments Act 2003, these regulations amend the Legislative Instruments Regulations 2004 to exempt rules made under Section 15 of the Intelligence Services Act 2001 from the legislative oversight provided by the Act. This exemption was necessary to clarify the legal status of these rules, ensuring they are subject to appropriate oversight and consultation mechanisms under the Intelligence Services Act rather than being subject to the registration, disallowance, and consultation requirements of the Legislative Instruments Act. The objective of these amendments is to ensure that intelligence communications and retention rules are appropriately managed while maintaining necessary oversight and consultation with relevant authorities.
Scope and Application
The Legislative Instruments Amendment Regulations 2010 (No. 1) amend the Legislative Instruments Regulations 2004 to exempt rules made under section 15 of the Intelligence Services Act 2001 from the application of the Legislative Instruments Act 2003. This amendment addresses the uncertainty regarding the characterisation of these Privacy Rules by removing the requirement for their registration and subjecting them to disallowance and consultation requirements under the Legislative Instruments Act. Instead, these rules are now subject to oversight and consultation requirements under the Intelligence Services Act, ensuring appropriate parliamentary scrutiny. This exemption applies to rules regulating the communication and retention of intelligence information concerning Australian persons, aligning with the specific oversight mechanisms established under the Intelligence Services Act. The Legislative Instruments Amendment Regulations 2010 (No. 1) are minor in nature and do not alter existing arrangements, having been developed through consultation with relevant ministers and oversight bodies. These Regulations are effective from the day after their registration on the Federal Register of Legislative Instruments.
Key Provisions
The Legislative Instruments Amendment Regulations 2010 (No. 1) introduce a significant exemption from the Legislative Instruments Act 2003 (the Act) for rules made under section 15 of the Intelligence Services Act 2001 (the Intelligence Services Act). Specifically, Regulation 3 amends the Legislative Instruments Regulations 2004 (the Principal Regulations) by inserting a new paragraph (ba) into item 11, Part 2 of Schedule 1, which exempts rules made under section 15 of the Intelligence Services Act from the scope of the Act (Reg. 3, Sch. 1, item [1]). These rules, known as Privacy Rules, govern how intelligence agencies communicate and retain intelligence information concerning Australian persons and are subject to oversight and consultation requirements under the Intelligence Services Act (s. 15(2)-(6)).
Under the Legislative Instruments Amendment Regulations 2010 (No. 1), the Privacy Rules are exempt from the registration, disallowance, and consultation requirements that would otherwise apply under the Legislative Instruments Act 2003 (s. 15(2)-(6)). This amendment is intended to address ambiguity regarding the classification of the Privacy Rules as legislative instruments and to streamline the process for their creation and amendment. Instead of complying with the Legislative Instruments Act, the Privacy Rules must adhere to the consultation requirements stipulated in the Intelligence Services Act, including consultations with the Attorney-General, the Inspector-General of Intelligence and Security, and the Parliamentary Joint Committee on Intelligence and Security (Intelligence Services Act s. 15(2)-(6)).
The Legislative Instruments Amendment Regulations 2010 (No. 1) do not impose new obligations or requirements on the parties or entities governed by the Legislative Instruments Act 2003 beyond what is already specified in the Intelligence Services Act 2001. The Regulations clarify that Privacy Rules are not subject to the legislative instruments regime, thereby removing the need for additional compliance measures under the Legislative Instruments Act. This amendment ensures that the Privacy Rules remain subject to the appropriate oversight and consultation mechanisms within the Intelligence Services Act.
There are no offences, penalties, or civil/criminal consequences specified within the Legislative Instruments Amendment Regulations 2010 (No. 1) for breaches of the Act or the Regulations themselves. The Regulations are minor and do not alter existing arrangements, but rather provide clarity and streamline the process for creating Privacy Rules under the Intelligence Services Act 2001. The primary consequence of non-compliance with the Privacy Rules would be addressed under the provisions of the Intelligence Services Act, which includes potential legal and administrative repercussions for failing to meet the oversight and consultation requirements.