Principle (a): Compliance with legislative requirements

Overview

Senate standing order 23(3)(a) requires the committee to scrutinise each instrument as to whether it is in accordance with its enabling Act and otherwise complies with all legislative requirements. Under this principle, the committee is typically concerned with:

whether the instrument is within the powers conferred by its enabling Act so that it is legally authorised;
whether any statutory preconditions to the making of the instrument have been satisfied; and
whether the instrument complies with all other relevant legislative requirements.

Requirements of the enabling Act and statutory preconditions

A legislative instrument must be made in accordance with the powers conferred by its enabling legislation, including any relevant statutory limitations or preconditions. This includes those in the Acts Interpretation Act 1901 (Interpretation Act).

The explanatory statement to the instrument should therefore indicate:

the source of legislative authority for the instrument, including its enabling provision(s);
whether any statutory preconditions for the instrument to be lawfully made were satisfied and the factual basis for satisfying those preconditions;
if the instrument was made in anticipation of the commencement of its enabling provision(s), that the instrument relies on section 4 of the Interpretation Act; and
if the instrument repeals or amends another instrument, and there is no express power in its enabling legislation to do so, that the instrument relies on subsection 33(3) of the Interpretation Act.

Requirements of the Legislation Act

An instrument and its accompanying explanatory statement must also comply with the requirements of the Legislation Act 2003 (Legislation Act).

The explanatory statement should therefore address the following requirements of that Act:

purpose and operation of the instrument – the instrument's explanatory statement must explain the purpose and operation of the instrument (paragraph 15J(2)(b));
retrospective commencement – if the instrument, or part of the instrument, applies retrospectively, the committee expects the explanatory statement to address whether this would disadvantage rights or impose liabilities on a person other than the Commonwealth. That is because retrospective commencement does not apply to the extent it disadvantages a person's rights or imposes liabilities on a person other than the Commonwealth (subsection 12(2)). Further information can be found in the committee's guideline on principle (h).
incorporation – if the instrument incorporates a document, its explanatory statement must describe the document and indicate how it may be obtained (paragraph 15J(2)(c)). The committee expects the explanatory statement to indicate whether the document can be freely accessed and used. It also expects the explanatory statement to indicate the manner of incorporation, such as incorporating the document at a certain date or as it exists from time-to-time, and the legislative authority relied upon to incorporate the document from time-to-time (if applicable). Further information can be found in the committee’s guideline on principle (f);
consultation – any consultation that the rule-maker considers to be appropriate and that is reasonably practicable must be undertaken (subsection 17(1)). In determining whether consultation was appropriate, the rule-maker may have regard to relevant matters, including consultation with experts and persons likely to be affected (subsection 17(2)). The committee expects the explanatory statement to describe the nature of any consultation undertaken in relation to the specific instrument (and not only to a broader issue or a series of legislative reforms or instruments). If no consultation was undertaken, the explanatory statement must explain why no consultation was undertaken (paragraph 15J(2)(e)). Further information can be found in the committee’s guideline on principle (d); and
statement of compatibility with human rights – the explanatory statement to a disallowable instrument must include a statement of compatibility with human rights (paragraph 15J(2)(f)), which the committee expects to be in the form of a 'standalone' statement. That is, the reader should be able to understand the overall measures in the instrument without needing to refer to other parts of the explanatory statement. Additional information in relation to human rights is available on the Parliamentary Joint Committee on Human Rights website, including a guidance note on drafting statements of compatibility with human rights. Further information about statements of compatibility is also available on the Attorney-General's Department's website.

Explanatory statement checklist

The following checklist summarises what should be included in an instrument’s explanatory statement under scrutiny principle (a):

Legislative authority

The explanatory statement should:

identify specific provision(s) of its enabling Act that provide the legal authority for the instrument to be made;
note that the instrument relies on section 4 of the Interpretation Act if it is made in anticipation of the commencement of its enabling provisions; and
note that the instrument relies on subsection 33(3) of the Interpretation Act if the instrument repeals or amends another instrument and there is no express power in its enabling legislation to do so.

Compliance with legislative preconditions

If the instrument’s enabling legislation establishes any preconditions for making the instrument, the explanatory statement should explain how they have been satisfied.

Incorporation of documents

If the instrument incorporates a document, the explanatory statement should:

identify the document with sufficient specificity (e.g., name and edition, if applicable);
indicate how the document may be obtained, including whether it can be freely accessed and used;
provide the manner of incorporation (e.g., incorporated as of a certain date or as it exists from time-to-time); and
indicate the legislative authority relied upon to incorporate the document from time-to-time (if applicable).

Consultation

The explanatory statement should address:

whether consultation occurred in relation to the specific instrument, and if not, why no consultation occurred; and
the nature of any consultation that occurred and whether experts and persons likely to be affected by the instrument were consulted.

Explanation of purpose

The explanatory statement must explain the purpose and operation of the instrument.

Statement of compatibility with human rights

The explanatory statement of a disallowable instrument must contain a 'standalone' statement of compatibility with human rights.

Explanation of retrospective commencement

If the instrument, or part of the instrument, applies retrospectively, the explanatory statement should address whether this would disadvantage rights or impose liabilities on a person other than the Commonwealth.