Legislation Act 2003

The Act binds rule-makers (section 6 defines a rule-maker as the Minister responsible for the relevant enabling legislation, or the person actually authorised to make the instrument), responsible persons for Acts and instruments, the First Parliamentary Counsel, the Office of Parliamentary Counsel, the Attorney-General, the Governor-General as maker of regulations under section 62, and both Houses of the Parliament. Indirectly, it binds anyone whose conduct or rights are affected by a registered instrument, because section 15K provides that a legislative instrument is not enforceable by or against any person, including the Commonwealth, unless it is registered.

The transitional sections (56, 57, 57A) also catch holders of pre-2005 disallowable instruments and instruments made under powers delegated by the Parliament before 1 January 2005, by importing them into the present regime.

Lodgement and registration. Section 15F requires the First Parliamentary Counsel to register an Act as soon as practicable after assent. Section 15G(1) and (2) require the rule-maker for a legislative or notifiable instrument to lodge it for registration as soon as practicable after making. Section 15G(4) requires the rule-maker to lodge an initial explanatory statement for a legislative instrument as soon as practicable after lodgement of the instrument, plus any supplementary or replacement statement.

Explanatory statements (section 15J). An initial or replacement explanatory statement must be approved by the rule-maker, explain the purpose and operation of the instrument, describe any incorporated documents and how they may be obtained, describe consultation undertaken under section 17 or explain why none was undertaken, and (for disallowable instruments) include a statement of compatibility under the Human Rights (Parliamentary Scrutiny) Act 2011.

Consultation (section 17). Before making a legislative instrument, the rule-maker must be satisfied that any consultation that is appropriate and reasonably practicable has been undertaken. Section 19 confirms that failure to consult does not affect validity, but the explanatory statement must address consultation under section 15J(2)(d) and (e).

Compilations (sections 15R, 15S, 15T). When a required compilation event occurs for a legislative instrument or notifiable instrument, the rule-maker must lodge a compilation within 28 days, or a longer period allowed by the First Parliamentary Counsel. The First Parliamentary Counsel must then register that compilation, or prepare and register one if the rule-maker has not lodged in time. For Acts, the First Parliamentary Counsel prepares and registers the compilation directly.

Notification of events affecting currency (section 15L). Responsible persons must notify the First Parliamentary Counsel of events affecting commencement, repeal, lapse, expiry, invalidity, or accuracy of the Register, with prescribed exceptions for routine events such as automatic sunsetting and disallowance.

Tabling (sections 38 and 39). The Office of Parliamentary Counsel must arrange for a copy of each registered legislative instrument to be delivered to each House within 6 sitting days of registration; explanatory statements must be delivered with the instrument or within 6 sitting days. Section 38(3) provides that an instrument is repealed immediately after the last day for tabling if it is not laid in time.

First Parliamentary Counsel. The Counsel maintains the Register, may include any documents likely to be useful (section 15A(3)), must rectify errors (section 15D) including arranging re-tabling and a fresh disallowance period after rectification (section 15DA), may make editorial and presentational changes (section 15V) within the catalogue in section 15X, may give a notice requiring a compilation after a discretionary compilation event (section 15S), and may delegate functions to a Second Parliamentary Counsel or SES employees (section 58).

Attorney-General. The Attorney-General may, by certificate, defer sunsetting in certain circumstances (section 51) and may, by legislative instrument, align sunsetting of instruments to be reviewed together (section 51A). The Attorney-General must lay tabling lists of instruments due for sunsetting before each House (section 52). The Attorney-General must also be satisfied an instrument is spent or no longer required before regulations repeal it under section 48E, must appoint review bodies under sections 59 and 60, and must agree to amendments by regulation under section 61(3).

Governor-General. The Governor-General may make regulations under section 62, including regulations amending legislative or notifiable instruments where the rule-maker agrees (section 61). Section 62(b) is a wide "necessary or convenient" head of power.

Houses of the Parliament. Either House may disallow a legislative instrument or provision under section 42; either House may resolve to continue an instrument in force despite sunsetting under section 53; either House may, while an instrument is subject to disallowance, require incorporated material to be made available (section 41); and both Houses, by resolution, may approve a legislative instrument that is the same in substance as a tabled instrument (section 46).

The Act is procedural rather than criminal. Its enforcement mechanisms operate by invalidity, repeal, and unenforceability rather than offences and fines.

The principal sanction sits in section 15K: a legislative instrument is not enforceable by or against any person, including the Commonwealth, unless registered. Failure to register simply strips the instrument of legal force. Section 38(3) automatically repeals an instrument that is not tabled in time. Section 42 repeals instruments and provisions that are disallowed by either House under the disallowance procedures. Sections 46 and 47 prevent the remaking of instruments that are the same in substance as a tabled or notice-of-disallowance instrument, and any contravening instrument has no effect (sections 46(3) and 47(3)). Section 48 prevents remaking of disallowed instruments within 6 months unless the relevant House approves by resolution; an instrument made in contravention has no effect (section 48(4)).

Sections 48A to 48D operate the automatic repeal of amending, repealing, and commencement instruments and the equivalent provisions in instruments containing other matter. Section 48E enables regulations to repeal spent instruments. Section 50 imposes the sunsetting clock on legislative instruments.

Registration to commencement. Section 12 fixes the default commencement: the start of the day after the day of registration, or as the instrument otherwise provides. Section 12(1A) permits retrospective commencement. Section 12(2) protects persons other than the Commonwealth from retrospective adverse effects on rights or imposition of liabilities. Section 12(5) authorises commencement instruments.

Disallowance window. Under section 42, notice of a motion to disallow must be given within 15 sitting days of the House beginning on the first sitting day after tabling. The House then has a further 15 sitting days to pass a disallowance resolution, failing which subsection 42(2) deems the instrument disallowed. Section 42(3) preserves the clock across dissolution, expiry, or prorogation. Section 47 prevents remaking while a notice of motion is live; section 48 imposes a 6 month bar on remaking after disallowance.

Compilations. Section 15R(3) requires lodgement within 28 days of a required compilation event, or such longer period as the First Parliamentary Counsel allows.

Sunsetting clock. Section 50(1) repeals a legislative instrument on the first 1 April or 1 October on or after the tenth anniversary of registration. Section 50(2) and the embedded table set substituted dates for instruments registered on 1 January 2005, staggered by year-of-making to avoid a single sunset day. Section 51(1) lets the Attorney-General defer sunsetting by certificate, by up to two years, on grounds including imminent cessation, replacement instrument incomplete because of dissolution or unforeseeable reasons, or pre-approval that the Part will not apply. Section 51A allows the Attorney-General to align sunsetting of two or more instruments to be reviewed together, by legislative instrument, on a 1 April or 1 October day no more than five years after the earliest unaltered sunset day. Section 52 requires the Attorney-General to lay sunsetting lists before each House on the first sitting day occurring within 18 months before each sunsetting day. Section 53 lets either House resolve to continue an instrument in force despite sunsetting.

Reviews. Section 59 required a body to be appointed during the three months after the fifth anniversary of the Acts and Instruments (Framework Reform) Act 2015 commencement. Section 60 requires the Attorney-General to appoint a body between 1 January and 31 March 2027 to review the operation of Part 4 of Chapter 3, with a report due before 1 October 2027.

The Act is densely connected to the Acts Interpretation Act 1901. Section 13(1)(a) applies the Acts Interpretation Act to legislative and notifiable instruments as if each provision were a section of an Act, which is the engine for borrowing presumptions of construction, severability under section 13(2), interpretation of references to laws, and the treatment of repeals under section 7 of the Acts Interpretation Act (referenced in sections 48A(3), 48B(3), 48C(3), 48D(3)).

Section 14 governs incorporation by reference: a legislative or notifiable instrument may apply, adopt, or incorporate Acts, covered legislative instruments, and rules of court "as in force at a particular time or as in force from time to time"; for any other instrument or writing, only at a fixed point unless the contrary intention appears (section 14(2)). Section 14(3) limits "ambulatory" incorporation of legislative instruments to disallowable instruments and pre-2005 disallowable instruments.

Section 15J(2)(f) requires statements of compatibility prepared under subsection 9(1) of the Human Rights (Parliamentary Scrutiny) Act 2011 for disallowable legislative instruments. Section 44 carves out instruments under intergovernmental schemes and instruments specifically removed by enabling Acts, but expressly preserves the Corporations Act 2001 from that carve-out. Section 54 carves out the same kinds of instruments from sunsetting under Part 4. Section 57A connects this regime to the historic Acts Interpretation Act 1901 disallowance regime under former section 46A and Part XII.

Section 58 references the Parliamentary Counsel Act 1970 as the source of the First Parliamentary Counsel's appointment and the office of Parliamentary Counsel itself. Section 10(2) cross-references the Seat of Government (Administration) Act 1910 and the Australian Capital Territory (Self-Government) Act 1988 for Territory Ordinances.

• An unregistered legislative instrument is unenforceable, full stop. Section 15K is absolute as between the parties, including the Commonwealth. Failure to lodge an explanatory statement does not affect the instrument's validity (section 15K(2)) but does constitute a breach of section 15G(4).

• Untabled instruments self-repeal. Section 38(3) provides that an instrument is repealed immediately after the last day for it to be laid before a House if a copy is not laid in time. There is no curative provision short of remaking.

• Editorial changes are amendments. Under section 15W, after registration of a compilation, an editorial change has effect for all purposes as if it had been made by an amendment of the Act or instrument that commenced on the day of registration. The "no change of effect" rule in section 15V(6) is therefore the only safeguard against silent substantive drift.

• Retrospective commencement is allowed but cannot disadvantage non-Commonwealth persons. Section 12(1A) permits retrospective commencement despite the common law rule against it, but section 12(2) blocks the retrospective effect to the extent it would adversely affect a person's rights or impose liabilities, except as against the Commonwealth.

• Disallowance is binary and final. A disallowed instrument or provision is repealed; remaking the same in substance within 6 months is barred unless the relevant House approves (section 48). A motion that lapses on dissolution is preserved by section 42(3).

• Sunsetting deferral is constrained. Section 51 requires written application by the rule-maker on specified grounds, and the Attorney-General's certificate may only specify a sunset on a 1 April or 1 October on or before the second anniversary of the original sunsetting day. Section 51 is itself disallowance-exempt only where the certificate specifies a day on or before the first anniversary of the sunsetting day (section 51(4)).

• Carve-outs from disallowance and sunsetting are narrow. Sections 44 and 54 disable Part 2 (disallowance) and Part 4 (sunsetting) only for instruments under intergovernmental schemes or instruments specifically declared, and the Corporations Act 2001 is expressly excluded from the intergovernmental carve-out.

• Incorporation by reference defaults to a fixed-time snapshot. Section 14(1)(b) and (2) mean that, unless contrary intention appears, an instrument cannot incorporate non-Act, non-legislative-instrument, non-rules-of-court material "as in force from time to time."

• Ambulatory incorporation of legislative instruments is restricted. Section 14(3) only allows ambulatory incorporation for disallowable legislative instruments and pre-2005 disallowable instruments.

Example 1: drafting an enabling provision. A primary law that says "the Minister may, by legislative instrument, determine licence conditions" automatically engages section 8(2): the determination is a legislative instrument, must be lodged for registration under section 15G(1), is subject to tabling under section 38, is disallowable under section 42, and (unless covered by section 54) is subject to sunsetting under section 50.

Example 2: a fix without amendment. If a registered instrument contains a typographical or cross-reference error, the First Parliamentary Counsel may correct it as an editorial change under section 15V(2), drawing on the closed list in section 15X(2), and on registration of the compilation it has effect as if it were an amendment commencing on the registration day under section 15W. The instrument's substantive effect must not change (section 15V(6)).

Example 3: rule-maker missing the compilation deadline. If a required compilation event under section 15Q(1) occurs on 1 March and the rule-maker does not lodge a compilation by 29 March, the First Parliamentary Counsel may extend under section 15R(3), or, failing that, must register one as soon as practicable under section 15T(2)(b).

Example 4: planning around sunsetting. A regulation registered on 15 June 2014 sunsets, by default, on 1 October 2024 under section 50(1) (the first 1 April or 1 October on or after the tenth anniversary). The responsible Minister may apply to the Attorney-General for deferral by certificate up to 1 October 2026 under section 51, or the Attorney-General may align the regulation with related instruments for joint review by sunset-altering instrument under section 51A.

Example 5: an instrument that is not laid in time. A registered legislative instrument was tabled in the House of Representatives but, by oversight, never delivered to the Senate within 6 sitting days. Section 38(3) repeals the instrument immediately after the last day for tabling in the Senate. The rule-maker must remake it.

Example 6: judicial notice in litigation. In a matter turning on the text of a Commonwealth regulation, a party need not adduce evidence to prove the assent date of the parent Act, the registration of the regulation, the text of the registered compilation, or that a printed copy is an authorised version (section 15ZB). The court must nevertheless consider whether the source it intends to use is reliable; an authorised version is statutorily reliable under section 15ZB(4).