Legislation (Exemptions and Other Matters) Regulation 2015

Commonwealth agencies and departments: Every Commonwealth agency that makes instruments under statutory powers must determine whether those instruments are legislative instruments, notifiable instruments, or neither. This Regulation is the reference point for many of those determinations.

Parliamentary counsel and legislative drafters: When drafting new legislation, parliamentary counsel must consider whether instruments to be made under proposed powers will or will not need to be legislative instruments, and whether exemptions from disallowance or sunsetting are needed. This Regulation shows the existing exemption landscape.

Regulated entities seeking review: When a person is affected by a government instrument, understanding whether that instrument is a legislative instrument determines important procedural rights (including whether it can be challenged via disallowance processes or whether it has expired due to sunsetting).

Courts and tribunals: The classification of instruments as legislative or administrative in character has been litigated extensively. This Regulation provides the definitive list of instruments excluded from the legislative instrument category under paragraph 8(6)(b) of the Legislation Act 2003.

This Regulation does not impose obligations on private persons. Its operative function is to determine the legal character and lifecycle of instruments made by government. The key operative provisions are:

Section 6: Classes of instruments that are not legislative instruments. The table covers instruments of delegation, directions to delegates, ministerial directions to Commonwealth companies or corporate entities in specified circumstances, instruments authorising or approving particular persons to take particular actions, instruments that make findings or decisions in particular cases, instruments of appointment, contracts and other arrangements, administrative policies, and various other administrative categories.

Section 7: Particular instruments that are not legislative instruments. A detailed table listing specific instruments by enabling section and parent Act. These range from ASIO guidelines (item 4) to Aviation Transport Security instruments (item 5) to Census Act notices (item 6) to specific immigration instruments.

Section 8: Classes of instruments that are notifiable instruments. A table listing instruments that must be registered on the Federal Register of Legislation as notifiable instruments rather than legislative instruments.

Section 9: Classes of legislative instruments not subject to disallowance. The table includes instruments made under intergovernmental cooperative schemes, certain international treaty-related instruments, and other categories where parliamentary disallowance is considered inappropriate.

Section 10: Particular legislative instruments not subject to disallowance. The table lists specific instruments by enabling provision and parent Act. The 2024 amendment removed Australian Research Council funding rules from this list, subject to transitional provisions in Part 6.

Section 11: Classes of legislative instruments not subject to sunsetting. Includes instruments the sunsetting of which would be impractical or disruptive.

Section 12: Particular legislative instruments not subject to sunsetting. A table of specific long-lived instruments, such as constitutional framework-related instruments, that should not expire automatically.

The Regulation is made by the Governor-General under the Legislation Act 2003. The Attorney-General's Department administers the Legislation Act framework and advises on interpretive questions. The Federal Register of Legislation, administered by the Office of Parliamentary Counsel, gives practical effect to the registration and classification obligations.

The Regulation itself does not confer discretionary powers on any individual decision-maker. It operates as a fixed reference table. However, section 6(1) table item 4 includes instruments authorising or approving a particular person to take a particular action, which effectively means that individual licence grants, approvals, and similar determinations are excluded from being legislative instruments irrespective of which parent Act authorises them.

There are no penalties in this instrument. It is a classification and exemption Regulation. The consequences of misclassifying an instrument (treating it as a legislative instrument when it is not, or vice versa) are legal rather than penal: an instrument treated as a legislative instrument when it is not may be registered unnecessarily, while an instrument that should have been registered as a legislative instrument but was not may be invalid or unenforceable if registration is a condition of its validity.

The Regulation does not specify application or notification timeframes for private persons. Its effect is automatic: any instrument falling within a class identified in sections 6-7 is automatically treated as not a legislative instrument; any instrument falling within sections 9-10 cannot be disallowed; any instrument falling within sections 11-12 does not sunset.

Part 6 transitional provisions: The 2024 Measures No. 1 amendment removed Australian Research Council funding rules from the disallowance exemption list in section 10. The transitional provision in section 13 preserves the pre-amendment treatment for instruments made before 1 July 2024 under the old ARC Act Division 1, and for instruments made between 1 July 2024 and 30 June 2025 under the transitional Division 1.

Legislation Act 2003 (Cth): The parent Act. Every provision of this Regulation operates as an exercise of a power given by the Legislation Act 2003. Key Legislation Act provisions engaged: s 8(6)(b) (power to exclude instruments from being legislative instruments), s 11(2)(b) (power to declare instruments to be notifiable instruments), s 44(2)(b) (power to disapply disallowance), s 54(2)(b) (power to disapply sunsetting).

Acts Interpretation Act 1901 (Cth): Interacts with the classification of instruments. As considered in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48, whether an instrument is a legislative instrument affects which provisions of the Acts Interpretation Act apply to it.

Federal Register of Legislation: The practical infrastructure through which the classification of instruments as legislative or notifiable instruments is given effect.

Migration Act 1958 (Cth): Several immigration instruments appear in the tables within this Regulation. Ministerial directions under section 499 of the Migration Act are among the instruments whose classification has been contested in courts.

Australian Research Council Act 2001 (Cth): The 2024 amendment to this Regulation removed ARC funding rules from the disallowance exemption list, with transitional provisions in Part 6.

The tables are the operative content: The sections of this Regulation are largely short operative provisions pointing to tables. The actual substance lies in the tables. Reading the sections without examining the tables gives only a framework understanding; anyone researching a specific instrument type must examine the relevant table entries.

Classification as not a legislative instrument does not mean the instrument is invalid or unregistered: An instrument classified as not a legislative instrument under Part 2 may still be required to be registered as a notifiable instrument, or may be subject to registration requirements under other laws. "Not a legislative instrument" is a classification that affects disallowance and sunsetting rights, not necessarily whether the instrument exists or has legal effect.

The Regulation only covers paragraph 8(6)(b) exemptions and equivalent: The Legislation Act 2003 has other mechanisms for excluding instruments from the legislative instrument category (including specific declaration provisions in individual Acts under section 10 of the Legislation Act). This Regulation only covers the exemptions made under paragraphs 8(6)(b), 44(2)(b), and 54(2)(b). Instruments may also be excluded from the legislative instrument category by other means not covered in this Regulation.

The legislative/administrative character question remains live: Even where an instrument falls within a class described in section 6 of this Regulation, questions of whether an instrument is truly administrative in character (rather than legislative) may still arise in judicial review contexts. The characterisation question as analysed in Jagroop [2016] FCAFC 48 remains relevant for instruments not clearly within a listed class.

2024 amendments introduced transitional complexity: The removal of ARC funding rules from the disallowance exemption list creates a transition period where instruments made before 1 July 2024 are treated differently from instruments made on or after 1 July 2025. Legal advisers to the ARC need to track the specific dates.

Ministerial direction to a corporate entity: A Minister issues a written direction to a Commonwealth corporate entity under a provision of its enabling Act. If the direction falls within item 3 of the table in section 6 (ministerial direction to a Commonwealth company or corporate entity, with specific exceptions), it is not a legislative instrument and does not need to be registered on the Federal Register of Legislation as a legislative instrument. The exceptions for directions required to be laid before Parliament or published in full in the Gazette mean that some directions of this kind remain legislative instruments.

AFP Commissioner's order: An order made by the AFP Commissioner under section 38 of the Australian Federal Police Act 1979 is listed in item 2 of the table in section 7 as a particular instrument that is not a legislative instrument. A person affected by such an order cannot challenge it on the basis that it has not been registered as a legislative instrument or that it has not been disallowed.

Intergovernmental scheme instrument: A legislative instrument made under an intergovernmental cooperative scheme and listed in the section 9 table is exempt from disallowance. Parliament cannot pass a resolution to annul it. This reflects the cooperative federalism nature of such instruments.

Research grant rule: An ARC funding rule made under Division 1 of Part 7 of the Australian Research Council Act 2001 before 1 July 2024 remains exempt from disallowance under the transitional provision in section 13, even though the general exemption for such rules was removed by the 2024 amendment. A funding rule made under the transitional Division 1 between 1 July 2024 and 30 June 2025 is also preserved. Funding rules made after 30 June 2025 under the new ARC Act structure will be subject to disallowance.