EXPLANATORY STATEMENT
Select Legislative Instrument 2011 No. 21
Subject: Legislative Instruments Act 2003
Legislative Instruments Amendment Regulations 2011 (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. Part 6 of the Act provides a regime for the sunsetting (automatic ceasing) of legislative instruments after 10 years of operation. The regime ensures that legislative instruments are reviewed regularly and kept up-to-date.
The purpose of the Legislative Instruments Amendment Regulations 2011 (No. 1)
(the Regulations) is to amend the Principal Regulations to provide an exemption from the sunsetting regime under the Act for Tariff Concession Orders (TCOs) made under Part XVA of the Customs Act 1901 (the Customs Act).
Part XVA of the Customs Act enables the Chief Executive Officer of Customs to make TCOs for imported goods where there is no local industry that produces substitutable goods in the ordinary course of business. Once a TCO is in place, any person importing goods covered by the TCO can do so at a free rate of duty. The Customs Act provides a comprehensive system for the management of TCOs, which includes processes for making, revoking and reviewing TCOs. These mechanisms are more suited to the nature of TCOs than the sunsetting regime provided for under the Act.
Regulation 9 of the Principal Regulations provides that an instrument mentioned in Schedule 3 to the Principal Regulations is declared not to be subject to sunsetting for the purposes of the Act. The Regulations insert a new item 3AA after item 3 of Schedule 3 to the Principal Regulations to prescribe an exemption for tariff concession orders made under Part XVA of the Customs Act.
The Regulations are minor and of a machinery nature and do not alter existing arrangements. The Regulations were developed in consultation with the Minister for Home Affairs, who is responsible for the Customs Act, 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 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 2011 (No. 1)
Regulation 1 – Name of Regulations
This regulation provides that the title of the Regulations is the Legislative Instruments Amendment Regulations 2011 (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 3, item 3AA, after item 3
Item 1 of the Regulations inserts new material into Schedule 3 to the Principal Regulations. Schedule 3 lists instruments made under particular provisions that are declared not to be subject to the sunsetting regime provided under the Legislative Instruments Act 2003 (the Act).
Item 1 inserts a new item 3AA in Schedule 3 to the Principal Regulations. Item 3AA provides an exemption from sunsetting for tariff concession orders made under Part XVA of the Customs Act 1901.
Overview
The Legislative Instruments Amendment Regulations 2011 (No. 1) were enacted to modify the Legislative Instruments Regulations 2004 under the authority of Section 62 of the Legislative Instruments Act 2003. This amendment was introduced to address the need for a tailored regulatory approach for Tariff Concession Orders (TCOs) made under Part XVA of the Customs Act 1901, ensuring they are not subject to the sunsetting regime of the Legislative Instruments Act 2003. The sunsetting regime, designed to ensure legislative instruments are regularly reviewed, was deemed inappropriate for TCOs, which are better managed by the comprehensive system provided under the Customs Act. The regulations were developed in consultation with relevant ministers and the Attorney-General to ensure they did not alter existing arrangements but provided a more suitable exemption for TCOs. The amendments were made to Schedule 3 of the Principal Regulations, inserting a new item that exempts TCOs from the sunsetting provisions, thereby maintaining their validity indefinitely unless otherwise revoked or amended by the Customs Act.
Scope and Application
The Legislative Instruments Amendment Regulations 2011 (No. 1) amend the Legislative Instruments Regulations 2004 to provide an exemption from the sunsetting regime under the Legislative Instruments Act 2003 for Tariff Concession Orders (TCOs) made under Part XVA of the Customs Act 1901. This amendment applies to TCOs, which are orders made by the Chief Executive Officer of Customs for imported goods where there is no local industry that produces substitutable goods in the ordinary course of business, allowing these goods to be imported at a free rate of duty. The exemption is intended to recognise the specialised management framework for TCOs within the Customs Act, which includes specific processes for making, revoking, and reviewing TCOs, rendering the sunsetting regime under the Legislative Instruments Act less suitable. The Regulations are minor, of a machinery nature, and do not alter existing arrangements. They were developed in consultation with relevant Ministers and commenced on the day after registration on the Federal Register of Legislative Instruments.
Key Provisions
The Legislative Instruments Amendment Regulations 2011 (No. 1) (Regulations) amend the Legislative Instruments Regulations 2004 (Principal Regulations) to exempt Tariff Concession Orders (TCOs) made under Part XVA of the Customs Act 1901 from the sunsetting regime provided under the Legislative Instruments Act 2003 (the Act). Section 62 of the Act allows the Governor-General to make regulations that prescribe all matters required or permitted by the Act, and these Regulations are a legislative instrument for the purposes of the Act (Section 4). The Regulations insert a new item 3AA into Schedule 3 of the Principal Regulations, which lists instruments exempt from the sunsetting regime (Regulation 3).
The Regulations impose a specific obligation on the Legislative Instruments Regulations 2004 by amending Schedule 3 to include Tariff Concession Orders made under the Customs Act. This amendment ensures that TCOs are not subject to the automatic cessation or sunsetting after 10 years of operation, as provided for in the Act (Regulation 3, Schedule Item [1]). The Regulations were developed in consultation with the Minister for Home Affairs and the Attorney-General, ensuring that the exemption aligns with the comprehensive management system for TCOs under the Customs Act.
Under the Legislative Instruments Act 2003, there are no specific offences, penalties, or consequences for breaching the provisions of the Regulations. However, the Act outlines general principles for the management and oversight of legislative instruments, including requirements for registration, review, and publication. The Regulations themselves do not introduce any new offences or penalties; they merely provide an exemption from the sunsetting regime for TCOs. The Regulations commence on the day after they are registered on the Federal Register of Legislative Instruments (Regulation 2).