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Editors --- "Passage of the Legislative Instruments Act" [2004] AdminRw 21; (2004) 56 Admin Review 71

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Passage of the Legislative Instruments Act

The Legislative Instruments Act 2003 received Royal Assent on 17 December 2003, over a decade after publication of the Administrative Review Council report that provided the impetus for the legislation. The Council’s 1992 report, Rule Making by Commonwealth Agencies, made a total of 31 recommendations for the purposes of improving the quality and transparency of delegated legislation. The principal elements of the Council’s proposals were as follows:

• better guidance on matters appropriate for inclusion in Acts of parliament and matters that can be included in delegated legislation

• improved practices to ensure high-quality drafting for all Commonwealth rules

• mandatory consultation with the community before the making of important rules

• procedures for parliamentary scrutiny and control that should apply to all rules

• sunsetting of all rules on a 10-year rotating basis

• establishment of a Legislative Instruments Register in which all rules should be published, with rules unenforceable if not published in this way

• special adaptations of these general procedures for rules of court and rules made under intergovernmental schemes for nationally uniform regulations.

Although the Act does not precisely mirror the Council’s recommendations, it does incorporate the main features of the proposed regime. It establishes an authoritative register of legislative instruments, with registration required for an instrument to be enforceable. It also encourages consultation when instruments are being made, emphasises high standards of drafting, ensures parliamentary scrutiny, and provides for sunsetting of instruments after approximately 10 years.

The Act is expected to commence on 1 January 2005. The Law and Justice Legislation Amendment Act 2004 makes some minor technical adjustments, with the amendments to come into effect immediately after the Legislative Instruments Act commences.

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