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Legislation Act 2003

The Legislation Act 2003, formerly the Legislative Instruments Act 2003 (LIA), provides the framework for the management of Commonwealth legislation, including the making, registration, publication, parliamentary scrutiny and sunsetting (automatic repeal) of Commonwealth delegated legislation.

'Delegated legislation' refers to the legislative instruments, including rules and regulations, made by rule-makers authorised under Acts of Parliament.

In addition to new provisions, the Legislation Act substantially re-enacted those parts of section 46A and Part XII of the Acts Interpretation Act 1901 that dealt with regulations and disallowable instruments and extended their operation to all legislative instruments.

The Legislation (Exemptions and Other Matters) Regulation 2015 is made under the Legislation Act and provides for exemptions from:

  • legislative instrument status
  • disallowance by the Parliament
  • sunsetting

for certain categories of instruments, as well as particular instruments which are identified by reference to the provision(s) under which they are made.

Review of the Legislative Instruments Act

The LIA provided that it should be reviewed within three years of commencement by a committee appointed by the Attorney-General. In March 2008, a Review Committee was appointed. The committee released an issues paper for public comment, and received a number of submissions about the operation of the LIA.

In March 2009, the committee released its report on the review of the LIA.

The review found that the LIA had been successful in providing a repository of legislative instruments, improving public access to them and facilitating parliamentary scrutiny. The committee also made a number of recommendations to improve the operation and clarity of legislative frameworks for Commonwealth Acts and instruments. In order to implement these recommendations, the Acts and Instruments (Framework Reform) Act 2015 (AIFR Act) was enacted.

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Acts and Instruments (Framework Reform) Act 2015

The AIFR Act came into effect on 5 March 2016 and made substantial amendments to provide a single framework covering registration, publishing and management of all Commonwealth Acts and instruments. It repealed the Acts Publication Act 1905 and incorporated the requirement for publishing Commonwealth Acts into the LIA (now the Legislation Act).

The main changes were as follows:

  • The LIA is renamed the Legislation Act 2003.
  • The Federal Register of Legislative Instruments and the Acts database established under the Acts Publication Act 1905 (accessible via ComLaw) were replaced with the Federal Register of Legislation. All Acts, legislative instruments and notifiable instruments are now accessible via the Federal Register of Legislation website.
  • There is a new category of instrument called ‘notifiable instruments’. This covers instruments that are not suitable to be registered as legislative instruments as they are not of a legislative character, but for which public accessibility and centralised management remains desirable.
  • Exemptions provided by the LIA and Legislative Instruments Regulation 2004 are consolidated into the Legislation (Exemptions and Other Matters) Regulation 2015. This regulation and the Legislation (General) Regulation 2015 replaced the Legislative Instruments Regulation 2004.

Further information is available in the following fact sheet:

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Registration

The Legislation Act requires legislative instruments to be registered and made publicly available on the Federal Register of Legislation. Following registration, legislative instruments are tabled in Parliament by the Office of Parliamentary Counsel.

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Sunsetting

The Legislation Act provides for the gradual sunsetting of legislative instruments unless particular steps are taken to preserve them. This keeps legislative instruments up to date and in force only for as long as needed.
Sunsetting is also an important mechanism for the Australian Government to implement policies about:

  • deregulation
  • clearer laws
  • other legal policy considerations.

Large numbers of legislative instruments began to sunset every six months from 1 April 2015. It is important that Australian Government agencies and departments take early action to manage the process of reviewing and sunsetting legislative instruments.

In general, each Australian Government agency and department will need to take two key steps in relation to each instrument that is due to sunset. These are:

  • reviewing the instrument to determine whether it is still needed and is fit-for-purpose
  • after this review, deciding whether the instrument should be repealed, remade or be subject to other mechanisms for postponement of its sunsetting date.

A number of guides and measures have been put into place to assist agencies and departments to manage their review and sunsetting processes.

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Guide to Managing Sunsetting of Legislative Instruments

The Guide to Managing Sunsetting of Legislative Instruments provides a detailed overview of the sunsetting regime as well as templates to apply for thematic review and exemptions.

A streamlined and simplified Regulatory Impact Statement (RIS) process is also outlined in the Sunsetting legislative instruments guidance note from the Office of Best Practice Regulation.

The Attorney-General's Department maintains regular contact with the network of sunsetting contact officers from each Australian Government department to provide notification of instruments due to sunset, updates to guidance materials and upcoming information seminars.

The Legislation Act also contains a number of useful sunsetting management mechanisms which include:

  • the ability to move sunsetting dates so that a group of regulations that share a common subject or theme can be reviewed together (also known as 'thematic review')
  • the ability to repeal spent and redundant legislative instruments in bulk to easily remove unnecessary legislation
  • the preparation and tabling in Parliament of sunsetting lists to notify rule-makers, agencies and departments of instruments due to sunset within the next 18 months.

For more information on these mechanisms, refer to the Guide to Managing Sunsetting of Legislative Instruments or contact the Administrative Law Section at sunsetting@ag.gov.au.

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Exemptions

There are some exemptions from the whole of the Legislation Act and some exemptions from the disallowance and the sunsetting provisions of the Legislation Act.

The exempted instruments are listed in the Legislation (Exemptions and Other Matters) Regulation 2015 or, in some cases, in the particular legislation authorising the making of the legislative instrument. The Legislation (Exemptions and Other Matters) Regulation and the Legislation (General) Regulation 2015 have replaced the Legislative Instruments Regulation 2004 as part of the reforms to the Commonwealth’s legislative framework.

Legislation introduced into the Parliament after 1 January 2005 will usually explain whether an instrument made under that legislation is covered by the Legislation Act (or the LIA before 5 March 2016).​​​

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