Federal Register of Legislation - Australian Government

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Legislation Rule 2016

Authoritative Version
Rules/Other as made
This instrument prescribes the approved website for the Federal Register of Legislation and other matters to do with requirements relating to lodgement, registration and authorised versions.
Administered by: Attorney-General's
Registered 02 Mar 2016
Tabling HistoryDate
Tabled HR15-Mar-2016
Tabled Senate15-Mar-2016

EXPLANATORY STATEMENT

Legislation Rule 2016

Issued by First Parliamentary Counsel
in compliance with section 26 of the Legislative Instruments Act 2003

 

INTRODUCTION

This rule was made for the purposes of the Legislation Act 2003 (the Act), and is a legislative instrument under section 61A of that Act. The Act is currently known as the Legislative Instruments Act 2003 (the LIA), but will be renamed and undergo other changes when the Acts and Instruments (Framework Reform) Act 2015 commences on or before 5 March 2016.

OUTLINE

As a result of recent changes to the Act, First Parliamentary Counsel now has a general power to make rules under section 61A of the Act, and must make a rule prescribing the approved website on which registered laws and other documents on the Federal Register of Legislation are to be available to the public under section 15C of the Act.

This rule prescribes an approved website, namely https://www.legislation.gov.au. This URL is new and aligns with the new title of the Act and with the URLs for similar sites maintained by other jurisdictions. It replaces the existing website https://www.comlaw.gov.au, and links to the existing site will be redirected to the new site to facilitate a smooth transition.

First Parliamentary Counsel may also make rules on a range of other matters as detailed in sections 15E and 15ZA of the Act, and in various sections in between. Drawing on these powers, this rule goes into some technical detail about what should or may need to happen before and after registration. The purpose of these provisions is to ensure that:

·         documents are lodged in a format that is suitable for registration; and

·         lodgements are managed (and if appropriate, edited) in a consistent and transparent matter.

Some matters now dealt with in the rule were previously dealt with in the Legislative Instruments Regulations 2004 (the 2004 Regulation), which will be repealed when the Legislation (Exemptions and Other Matters) Regulation 2015 commences. Relevant provisions of the 2004 Regulations have been retained and incorporated into the rule as follows:

Existing provision in 2004 Regulation

New provision in rule

subsection 4(2) on electronic lodgement of instruments

subsection 5(1)

subsection 4(3) on hard copy lodgement of instruments

[not retained - no longer required by the Act]

section 5 on information to be lodged with legislative instrument for registration

subsection 5(2)


Some other matters now dealt with in the rule were previously dealt with in guidance material such as the Legislative Instruments Handbook. Having said that, only the most critical matters have been incorporated into the rule. Best practice guidance on other matters will continue to be published on the Office of Parliamentary Counsel (OPC) website http://www.opc.gov.au.

PROCESS BEFORE RULE WAS MADE

Regulatory impact analysis

Before this rule was made, the rule’s regulatory impact was assessed using the Preliminary Assessment tool approved by the Office of Best Practice Regulation (OBPR). It is not expected to impact on businesses, community organisations or individuals, and the OBPR has confirmed that a full Regulation Impact Statement is not required (OBPR reference 20503).

Statement of compatibility with human rights obligations

Before this rule was made, the rule’s impact on human rights was assessed using tools and guidance material published by the Attorney‑General’s Department.

The rule establishes basic technical standards for the publication of legislation, to improve its usability and ensure that it is accessible to the people who rely on older or assistive technology. As such, the rule may advance and protect human rights such as:

·         fair trial and fair hearing rights under Article 14 of the International Covenant on Civil And Political Rights (the ICCPR); and

·         rights of access to information under Article 9 and access to justice under Article 13 of the  Convention on the Rights of Persons with Disabilities (the CRPD).

The rule does not infringe on, and is compatible with, the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Consultation before making

Before this rule was made, First Parliamentary Counsel considered the general obligation to consult imposed by section 17 of the LIA, and the specific circumstances where consultation may be unnecessary or inappropriate set out in section 18 of that Act.

An exposure draft of this rule was published on the ComLaw and OPC websites in mid‑December 2015, and comments requested by 5 February 2016. A courtesy copy was also sent to the Clerks of both Houses of the Parliament, to the legislation liaison officers of every portfolio Department, and to every user authorised to lodge documents for registration under the existing legal framework.

A small number of comments were received and a detailed response was provided to each person who made comments.

Statutory preconditions and Parliamentary undertakings relevant to this rule

There are no statutory preconditions or Parliamentary undertakings directly relevant to the making of this rule. A related undertaking, to report on the use of editorial powers under sections 15V to 15X of the Act, is not affected by the making of this rule.


PROCESSES FOR REVIEW OF THIS RULE

This rule is subject to tabling and disallowance under Part 5 of the LIA, and to sunsetting under Part 6 of the LIA. When changes to the LIA commence, relevant provisions will be located in Chapter 3, Part 2 and Chapter 3, Part 4 of the Act respectively.

OTHER ISSUES

Matter incorporated by reference

As noted in the rule, a number of expressions used in the rule are defined in the Act. The rule does not apply, adopt or incorporate any other matter by reference.

More information

A provision by provision explanation of the rule is provided in Attachment A, and guidance on key aspects of the rule will be published on the OPC website http://www.opc.gov.au.
NOTES ON SECTIONS                                                                         ATTACHMENT A

Part 1—Preliminary

Section 1         Name

This section provides for the rule to be cited as the Legislation Rule 2016.

Section 2         Commencement

This section provides for the rule to commence after the later of two events.

The first event is the start of the day after the rule is registered. This date is the default commencement that would apply if no commencement date was specified, and is important to avoid making the rule retrospective.

The second event is the commencement of Schedule 1 to the Acts and Instruments (Framework Reform) Act 2015 (Act No. 10 of 2015), which received Royal Assent on 5 March 2015. That Schedule will commence on 5 March 2016, unless an earlier date is fixed by proclamation.

Section 3         Authority

This section identifies the Act that authorises the making of the rule, namely the Legislation Act 2003. This Act is currently known as the Legislative Instruments Act 2003, but will be renamed and will undergo other changes when the Acts and Instruments (Framework Reform) Act 2015 commences.

Section 4         Definitions

This section defines a number of key terms used throughout the rule, including by reference to expressions defined in the Act.

Part 2—Lodgement

Section 5         Requirements for lodgement

This section is similar to section 4 of the existing 2004 Regulation. It prescribes how documents must be lodged for registration under the Act, and requires documents to be lodged:

·                     using a specified online facility unless another method is agreed; and

·                     in a particular format to enable the document to be converted; and

·                     without content that is dynamic and that may interfere with the content of the document.

These requirements are important to enable documents to be registered quickly as required by the Act, and to be converted accurately into a choice of file formats as required by long-standing government accessibility standards for websites.

There is also provision for First Parliamentary Counsel to agree to the use of other methods and formats. This may be necessary if, for example, technical difficulties prevent timely lodgement of an instrument that is about to commence. A similar provision is made in the existing regulation.

Section 6         Withdrawal of lodgement

This section makes clear that a person who lodges a document for registration has an obligation to withdraw the lodgement if they become aware that it is incomplete or inaccurate. This requirement is consistent with section 15L of the Act, which requires First Parliamentary Counsel to be notified of events affecting the currency or accuracy of the Register.

Section 7         Requirements for compilations

This section of the rule builds on the minimum content requirements for compilations set out in subsection 15P(1) of the Act. To ensure that compilations are useful to users of the Register, it requires compilations to include:

                     (a)  the name of the principal law;

                     (b)  the number of the compilation;

                     (c)  the name of the Department or agency that prepared the compilation;

                     (d)  a key setting out any abbreviations used in any notes to the compilation;

                     (e)  for an instrument—the enabling legislation for the instrument.

With the exception of paragraph (b), these requirements are consistent with the way compilations of Acts and regulations have been prepared over many years, and extending them to all instruments will help ensure greater consistency across the statute book.

The requirement for a compilation number (paragraph (b)) is new but will enable users of the Register to more easily identify a particular compilation.

Section 8         Compilations prepared and lodged by OPC

This section of the rule clarifies that a rule-maker does not need to prepare and lodge a compilation under section 15R of the Act if this is to be done by OPC. It recognises long-standing arrangements, and in particular that OPC:

·                     routinely prepares compilations for all instruments that must be drafted by OPC; and

·                     is able to prepare compilations for other instruments by agreement.

Part 3—Registration

Section 9         Approved website for registered material

This section prescribes the approved website where registered documents will be available to the public, namely https://www.legislation.gov.au.

This URL, which is new, aligns with the new title of the Act and with the URLs for similar sites maintained by other jurisdictions. Links to the existing ComLaw website https://www.comlaw.gov.au will be redirected to the new site to facilitate a smooth transition.

Section 10       Giving unique names

This section clarifies that First Parliamentary Counsel may name or rename a document lodged for registration, if the document does not have a name or has the same name as a document that is already on the Register. This provision is expressly permitted by subparagraphs 15M(b)(i) and (ii) of the Act.

Section 11       Inserting unique identifiers

This section recognises the practice of inserting a unique identifier into every document before it is registered, to assist with its identification. This provision is expressly permitted by paragraph 15E(v) and subparagraph 15M(b)(iii) of the Act.

Section 12       Alternative arrangements in the event of technical difficulties

This section specifies alternative arrangements for registering documents in the event that technical difficulties prevent registration and publication on the approved website. This provision is expressly permitted by paragraph 15M(f) of the Act, and it provides for an Act, instrument or other document to be registered by:

·         publishing it on the OPC website www.opc.gov.au; or

·         if that website is not available—displaying it at OPC’s place of business.

The section also clarifies that a document registered using an alternative arrangement must be made available to the public on the approved website as soon as practicable after technical difficulties have ceased.

There is a similar provision in paragraph 31(2)(b) of what is currently the Legislative Instruments Act 2003, but that provision will be repealed when the name of the Act changes. The existing provision also requires documents to be gazetted then registered, and deems the date of registration to be the date of gazettal.

A deeming provision is no longer needed because of the way paragraph 15M(f) of the amended Act is framed. The date of registration for a registered document will be the earliest day on which it is registered by whatever means (the approved website, the OPC website, or OPC’s place of business).

Section 13       Events affecting the currency or accuracy of the Register

This section allows First Parliamentary Counsel to require documentary evidence of the occurrence of an event that affects the currency or accuracy of the Register. This power is limited to the situation where a responsible person has notified such an event under section 15L of the Act, and is permitted by paragraph 15M(h) of the Act.

The provision is not prescriptive about the exact form of document that may be required, because it is not practical to anticipate every event that could affect the currency or accuracy of the Register. However, to illustrate what may be required, if a rule-maker notifies one of the following events then it may be appropriate to require documentation as follows:

·         if a court or tribunal has found a registered law or a provision of such a law to be invalid or unenforceable—a copy of the written judgement

·         if the commencement of a law is tied to a treaty that commences on an exchange of letters between Ministers or similar—a notice of treaty commencement.

A document required by First Parliamentary Counsel under this provision is likely to be registered under paragraph 15A(3)(e) of the Act, if it may be considered in determining the meaning of a registered law under section 15AB of the Acts Interpretation Act 1901.

Part 4—Authorised versions

Section 14       Authorised versions

This section specifies the form of words that must be included in a registered law or explanatory statement to indicate that it is an authorised version. A single phrase, namely “Authorised version”, will soon be used for all registered documents but several other forms of words are also recognised, consistent with past practice under previous legislative frameworks.

The section also specifies that, for electronic copies of registered documents, only the .pdf format is regarded as authoritative. A registered document will normally be published in a choice of file formats to comply with government accessibility requirements, but its appearance can be subtly distorted by the conversion process and also by the end user’s device and software choices.

In particular, complex formatting and special symbols may not always display correctly in .doc,.docx and .html formats and this can significantly alter the meaning of a document. For example, the Greek letter “Mu” (μ) can be misread as an “m” as part of an international unit of measurement, resulting in the user seeing a much larger measurement than was intended by the rule-maker.

In light of such issues, only the .pdf format will be authorised and this approach is consistent with past practice under previous legislative frameworks.

This section of the rule is intended to satisfy the various requirements in section 15ZA of the Act regarding authorised versions of registered laws and their explanatory statements.