Drafting instructions

5.1 All government bills are drafted by the Office of Parliamentary Counsel (OPC), based on drafting instructions provided by instructing departments. Drafting instructions, which are almost always to be in writing, indicate a genuine commitment by instructors to progress the legislative project. All written drafting instructions for Bills should be provided using the Drafting Instructions template on OPC’s website. See also OPC’s Instructor Guidance Note— Drafting instructions template (Bills) checklist topics.

5.2 Drafting instructions outline the key policy objectives and explain why legislation is needed for them to be implemented. It is the role of departmental instructing officers to ensure that the instructions are expressed in clear and simple language, and provide accurate information on all relevant matters of detail intended to be covered by the legislation.

5.3 OPC has prepared a number of useful reference documents about the instructing and drafting process, including OPC’s drafting services: a guide for clients and various Instructor Guidance Notes. Anyone involved in the preparation of drafting instructions, or in instructing OPC, will benefit from referring to these documents.

Timing for drafting instructions

5.4 The Parliamentary Business Committee of Cabinet stipulates a date for each sitting by which drafting instructions for a bill need to be received by OPC. Failure to meet the deadline could jeopardise access to drafting resources. In the case of any subsequent variations to the legislation program, instructions need to be received at the time the legislation variation is lodged. If these deadlines cannot be met, the department must contact the First Parliamentary Counsel to discuss the options. 

Responsibility for instructions and the role of instructing officers

5.5 Generally, only one department may instruct OPC on a bill. Non-departmental entities within a portfolio are not to instruct OPC in relation to their own legislation.

5.6 To ensure continuity through the drafting process, the instructing department must nominate at least two officers to instruct OPC. These officers must have a thorough understanding of the policy underlying their legislative projects and a knowledge of the legislation process (or have access to someone within the department who does). Such an understanding is necessary to ensure that instructors and drafters are able to work together to produce clear legislation that is no more complex than is necessary to give effect to the underlying policy.

5.7 At least one of the instructing officers must be of sufficient seniority to speak on behalf of the department and to take most decisions on details arising in the course of drafting without further reference to the department unless, for example, a major issue of policy is involved. If a department has a legal or legislation area, officers from that area must also be involved in both the preparation of initial drafting instructions and the processes of working with OPC to develop and finalise the bill.

5.8 The Drafting Instructions template also requires an SES officer to be nominated for each Bill.

Responsibility for consultations

5.9 In developing the policy detail to the stage at which drafting instructions can be provided, a range of general policy issues that are relevant to all legislation need to be considered. Many of these require consultation with other departments and agencies. The instructing department is responsible for considering these issues and ensuring the necessary consultations take place.

5.10 If consequential amendments to another minister’s legislation are proposed, the instructing department must consult and seek agreement from the department of the other minister about the drafting instructions. This may involve seeking the clearance of the other department for relevant parts of the drafting instructions. Any disagreement about who is to issue instructions needs to be resolved before the policy is approved. If the matter cannot be resolved at officer level, the ministers are to be consulted as soon as possible and the matter referred to the Prime Minister for resolution if necessary.

OPC client advisers

5.11 OPC has client advising arrangements for Bills under which a department can obtain quick informal advice, from a drafter who is allocated to the department, about matters in which OPC has expertise that may not be readily available in the department. For example, advice may be obtained about:

1. options for legislative approaches;
2. matters necessary, desirable or acceptable for inclusion in legislation; or
3. the form of drafting instructions.

5.12 A full list of client advisers, showing which advisers are allocated to which departments, is available on OPC’s website.

Early access to drafters

5.13 Traditionally, OPC has not become involved in legislative projects until it receives written instructions from the instructing department. This is still the standard approach for most legislative projects.

5.14 However, in limited circumstances, it may be necessary for the instructing department to seek access to a drafting team in advance of providing written instructions. The First Parliamentary Counsel can advise whether early access can be arranged for a particular project. The sort of assistance that drafters can provide under an early access arrangement goes beyond the kind of quick advice that is provided under the OPC client advising arrangements.

5.15 The First Parliamentary Counsel will assess requests for early access having regard to the nature and timeframe of the project, the importance of the project within the Government’s legislation program as a whole, and the availability of drafting resources.

Reducing complexity

5.16 In developing drafting instructions, the instructing department may consider whether any aspects of the proposed approach add complexity, and whether there are any acceptable alternative approaches that would be less complex. Further information on plain language and reducing complexity can be found on OPC’s website and AGD’s website.

5.17 Instructors are welcome to discuss with OPC client advisers, or the drafters allocated to their project, whether there are non-legislative options for dealing with matters, or options that would involve less or simpler legislation. Drafters will also be proactive in raising these kinds of issues with instructors.

Specific matters for consideration

5.18 The following paragraphs provide information on a number of specific matters which departmental instructing officers will need to consider in preparing drafting instructions.

Retrospective legislation

5.19 Provisions that have a retrospective operation adversely affecting rights or imposing liabilities are to be included only in exceptional circumstances and on explicit policy authority (see paragraphs 3.9(i), 3.21(b) and paragraphs 3.30-3.31 concerning announcement of legislation to operate from the date of announcement).

5.20 Departments need to be aware that the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights, which scrutinise all bills, expect that an explanation and justification for any retrospective provisions will be included in the explanatory memorandum and statement of compatibility with human rights (see paragraph 7.21).

Mention of specific ministers and departments

5.21 Particular ministers or departments are generally not specified in legislation. The minister or department administering the legislation is sufficiently identified by the Administrative Arrangements Order (AAO) and Part 5 of the Acts Interpretation Act 1901 (see paragraphs 1.14 to 1.16). There will be exceptions to this rule, for example, to preserve the responsibilities of the Attorney‑General in legal processes. 

5.22 If it is necessary that a particular minister be identified by the legislation, it is preferable to refer either to the minister responsible for administering a key piece of portfolio legislation related to the proposal (e.g. the minister responsible for administering the Seat of Government (Administration) Act 1910 for matters relating to the Australian Capital Territory (ACT)) or to the minister responsible for a particular matter (e.g. the minister responsible for constitutional development of the ACT (taken from matters listed in the AAO)). 

5.23 It is generally not appropriate to put statutory obligations on the minister or department administering an Act to consult with other ministers or departments. Any proposals to include such statutory obligations must have the specific approval of the Cabinet or the Prime Minister.

Delegations

5.24 The sorts of powers that can be delegated, and the categories of people to whom they are delegated, are to be as limited as practicable. Important powers (e.g. a power vested in a minister to give a conclusive certificate or to make an important legislative instrument) can only be delegated to very senior officials such as the secretary to the department or the chief executive officer of the authority concerned. The class of delegates needs to be defined—it is generally not appropriate to allow for delegation to ‘any person’.

5.25 The Senate Standing Committee for the Scrutiny of Bills expects that powers to delegate will be appropriately limited as discussed above, and that the need for, and scope of, any power to delegate will be justified in the explanatory memorandum. 

Legislation review mechanism

5.26 In developing new legislation and amending existing legislation, departments will need to consider whether a mechanism for reviewing the legislation should be included. Such a provision could require a one‑off or regular review and specify those matters to be considered. For example, a provision could require regular consideration of whether the legislation:

1. is operating in a way that is legally effective to implement government policy;
2. has resulted in any unintended legislative consequences;
3. remains relevant and clear; or
4. contains any outdated or redundant provisions.

International conventions and treaties

5.27 Bills relating to international conventions and treaties must not include clauses providing for parliamentary approval of the treaty or convention.

5.28 The Attorney-General’s Department (AGD) and the Department of Foreign Affairs and Trade (DFAT) are to be consulted on the international law aspects of legislation which implements an international convention or treaty. This will ensure such legislation is consistent with, and not contrary to, an international convention or treaty to which Australia is a party and, where possible, that legislation is not introduced into the Parliament before the Joint Standing Committee on Treaties (JSCOT) has reported on the relevant convention or treaty (see paragraphs 11.21 to 11.23).

5.29 In addition to those consultations, the drafter (or an OPC client adviser) may be able to provide advice on possible legislative approaches for implementing a convention or treaty.

Matters for consideration in consultation with OPC

5.30 The following paragraphs provide information on matters which departmental instructing officers will need to consider in consultation with OPC (see paragraph 1.5). Further information is available on OPC’s website (in particular, see OPC’s Instructor Guidance Notes.

Commencement

5.31 Although the Acts Interpretation Act 1901 provides for a default commencement if no commencement provision is included, the longstanding approach is that every bill have a commencement provision.

5.32 In determining the appropriate commencement arrangements for Acts or sections of Acts, departments need to consider the time that will be required for the preparation, signing and registration of proclamations, regulations and other legislative instruments, instruments of appointment or other matters that require action or approval after Royal Assent and before commencement. These matters will also need to be explained in the explanatory memorandum to the legislation.

Use of a specified date

5.33 If it is proposed that provisions of a bill be expressed to commence on a specified date (e.g. 1 July in a particular year), the instructing department needs to be aware of the problems that will arise if the bill does not pass through the Parliament and receive Royal Assent before that date. For example, where it becomes apparent that a specified date will pass before the bill has been passed by the Parliament, it would usually be necessary to draft a government amendment (and seek policy approval) to postpone the specified date or to change the commencement provision to another option. In cases where a bill is passed shortly before the specified date, it may be difficult to achieve assent before the date. The Legislation Section in PM&C must be contacted if there is expected to be a need to seek Royal Assent urgently.

Use of proclamation provisions

5.34 As the Government is required to report to the Senate on unproclaimed legislation at regular intervals (in response to Senate standing order 139(2)), proclamation provisions in bills are generally drafted with a deadline placed on the time within which an Act is expected to be proclaimed—for example, that the Act commence on a specific date or within six months of Royal Assent, or with an automatic repeal provision if the Act remains unproclaimed. This practice avoids legislation with an open‑ended commencement date which tends to attract adverse comment from the Senate Standing Committee for the Scrutiny of Bills (see paragraphs 7.27 to 7.29 and 13.61 to 13.63). See also paragraphs 14.13 to 14.13 on commencement of Acts by proclamation.

Application, saving and transitional provisions

5.35 Where the law on a particular subject matter is to be altered, OPC needs to be instructed on the relationship between the new law and the old law. In particular, instructing officers need to address:

1. the application of the new legislation to cases that arose before the alteration;
2. any requirement for a transitional period during which the new law needs modification or special provisions are required;
3. to what extent, if any, things done under the old legislation are to have effect under the new legislation; and
4. to what extent, if any, provisions of the old law need to continue in force after commencement of the new law for limited purposes (e.g. recovery of liabilities that arose under the old law before commencement of the new law).

For further information, see OPC’s Instructor Guidance Note on application, saving and transitional provisions.

Legislation binding the Crown

5.36 An Act normally would not bind the Commonwealth Government, a state government or the Australian Capital Territory or Northern Territory governments unless there is a specific provision or it is necessarily implied that it binds the Crown.

Matters administered by the Attorney-General’s Portfolio

5.37 Legislative proposals may contain one or more matters in which AGD has a policy interest. AGD must be consulted on such matters when departments are developing a proposal.

5.38 AGD has a policy interest in a range of matters, including: 

• constitutional law;
• native title rights and interests (including creation or removal of interests in land, or regulatory schemes around the use, preservation or extraction of resources, flora or fauna);
• criminal law (including offence provisions and penalties);
• jurisdiction and powers of courts and tribunals;
• evidence law (including privileges and evidentiary certificates);
• administrative law (including review of administrative decisions);
• international obligations, including under human rights instruments;
• legislative instruments (including exemptions from the Legislation Act 2003) and legislative frameworks (including application of the Regulatory Powers (Standard Provisions) Act 2014); and
• privacy, secrecy and freedom of information.

5.39 The following paragraphs provide information on some of these matters. Departmental instructing officers will need to consult AGD for further information (see paragraph 1.5).

Constitutional basis of cooperative schemes

5.40 AGD must be consulted at an early stage on any proposal to establish a cooperative legislative scheme. Instructors and drafters need to be aware that legislative mechanisms proposed to implement such ‘federal’ schemes may require the Attorney‑General’s policy approval.

5.41 Cooperative schemes take a variety of different forms, including:

1. Commonwealth legislation relying on constitutional references of power from the states;
2. Commonwealth legislation enacted on the basis of existing Commonwealth constitutional powers, but that is intended to be applied (or to be available to be applied) by the states as state law (or the reverse where the Commonwealth ‘applies’ a model law enacted by a state or territory);
3. legislative schemes that involve the Commonwealth and the states enacting mirror legislation; and
4. legislative schemes that assume that the Commonwealth will legislate for some matters and that the states will legislate for other matters.

Burden of proof, offences and penalties

5.42 The AGD website has information for officers seeking guidance in developing their policy and instructions on the following matters:

1. guidance on framing criminal offences, including information about provisions contained in the Criminal Code (Schedule 1 to the Criminal Code Act 1995) and the Crimes Act 1914 that have a bearing on the framing and operation of offences, choosing appropriate penalties and developing defences;
2. considerations when developing an infringement notice scheme; and
3. guidance on developing coercive powers, such as entry, search and seizure powers, notices to produce or attend, and other types of enforcement powers (excluding those powers that are used to support regulatory frameworks).

5.43 The Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights expect that any reversal of the burden of proof in criminal proceedings will be justified given this limits the presumption of innocence. If such provisions are used, these must be explained and justified in the explanatory memorandum and statement of compatibility with human rights (see paragraphs 7.27 to 7.29 and 7.35 to 7.38). Officers can consult AGD, and contact the secretariat of either committee, for advice if necessary.

Regulatory powers

5.44 AGD is to be consulted on any proposals that seek to establish or amend frameworks that provide for regulatory powers. Such proposals will trigger the standard suite of provisions in the Regulatory Powers (Standard Provisions) Act 2014 unless there are compelling reasons to the contrary. The Act streamlines and simplifies Commonwealth regulatory powers by providing for standard provisions in relation to monitoring and investigation powers, as well as enforcement provisions through the use of civil penalties, infringement notices, enforceable undertakings and injunctions.

Intelligence

5.45 The Inspector‑General of Intelligence and Security and Ombudsman should be consulted as a matter of course in relation to all proposed amendments to intelligence legislation affecting matters within their jurisdiction to ensure that oversight issues can be addressed upfront.

Jurisdiction and powers of courts and tribunals

5.46 AGD must be consulted on any proposal to confer jurisdiction on or amend powers of courts or tribunals or to exclude matters from the jurisdiction of courts or tribunals which would otherwise have jurisdiction (including any proposals to alter or remove existing jurisdiction of courts or tribunals) (see paragraph 5.38).

5.47 AGD must also be consulted on any proposal to confer functions on federal judicial officers or Administrative Review Tribunal members in a personal capacity (‘persona designata’) or to confer functions on retired federal judicial officers.

Review of administrative decisions

5.48 If it is proposed that the legislation will confer discretionary powers (e.g. the giving of approvals, the granting of licences or permits, or the imposition of some penalty or obligation), the exercise of these powers would normally be subject to some form of external review on the merits.

5.49 If review rights are excluded or limited, the Senate Standing Committee for the Scrutiny of Bills and the Parliamentary Joint Committee on Human Rights are likely to require an explanation as to why the rights are excluded and whether the exclusion is compatible with the right to a fair hearing. If review rights are limited or excluded, this must be explained and justified in the explanatory memorandum and statement of compatibility with human rights (see paragraphs 7.27 to 7.29). 

5.50 In most cases, the appropriate review body will be the Administrative Review Tribunal; however, the Tribunal can only review decisions where there is an enactment (as defined in the Administrative Review Tribunal Act 2024) which provides that applications may be made to the Tribunal. Where legislation confers power to give directions or to make determinations of a legislative nature, it may be preferable to require the decision, direction or determination to be tabled in the Parliament and possibly to be subject to parliamentary disallowance. 

5.51 The Administrative Decisions (Judicial Review) Act 1977 automatically applies in relation to new legislation unless explicitly excluded. This Act enables the Federal Court to review the lawfulness of a decision made under legislation or conduct leading up to, or delays in the making of, such a decision, and also provides an entitlement for a person to obtain a statement of reasons for a decision which is made under legislation. Very strong reasons need to be advanced to support proposed exclusion, and the approval of the Attorney-General will be required.

5.52 AGD must be consulted on the review procedures to be incorporated in proposed legislation (Acts or subordinate legislation) which confer discretionary powers upon ministers or officials and, in particular, proposals affecting the operation of administrative review tribunals, judicial review or review by the Ombudsman, the Inspector‑General of Intelligence and Security or the Australian Public Service Commissioner. In the latter three cases, PM&C must also be consulted. These matters need to be raised at an early stage in the preparation of legislative proposals as part of the development of the Cabinet submission.

International obligations under human rights instruments

5.53 AGD must be consulted on proposed provisions that may be inconsistent with, or contrary to, an international instrument relating to human rights. In particular, the instruments set out in the Human Rights (Parliamentary Scrutiny) Act 2011:

1. the International Covenant on Civil and Political Rights;
2. the International Covenant on Economic, Social and Cultural Rights;
3. the Convention on the Elimination of All Forms of Racial Discrimination;
4. the Convention on the Elimination of All Forms of Discrimination Against Women;
5. the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment;
6. the Convention on the Rights of the Child; and
7. the Convention on the Rights of Persons with Disabilities.

5.54 All bills (and instruments that are disallowable) must be accompanied by a statement of compatibility that assesses whether the bill (or instrument) is compatible with human rights. See paragraphs 7.17 to 7.21 on statements of compatibility.

Secrecy provisions

5.55 AGD must be consulted at an early stage on the scope of any proposed new secrecy provisions or changes to existing secrecy provisions. Secrecy provisions should align with the secrecy principles in the Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. The general secrecy provisions in Part 5.6 of the Criminal Code Act 1995 should be relied upon where possible, with specific secrecy provisions only being enacted where the general offences are inadequate.  

Consultation with other departments and agencies

5.56 The following paragraphs provide information on matters which departmental instructing officers will need to consider in consultation with other departments and agencies (see paragraph 1.5).

Operation of Commonwealth Acts in external territories

5.57 The Acts constituting Australia’s various external territories provide either that Commonwealth Acts extend, or do not extend, to the territory concerned. In each case, the general rule can be displaced by a contrary intention expressed in relation to particular Commonwealth Acts. The current position is set out below.

5.58 Consultation on proposals to amend an Act which extends to the external territories, or to introduce a new Act extending to any of the external territories, must occur at an early stage for any proposal which:

1. applies differently in external territories to the way it applies elsewhere;
2. is specifically directed at external territories; or
3. is particularly controversial in its application to external territories.

5.59 In such cases, proposals are to be referred to:

1. the department with responsibility for external territories if the impact is on the Christmas Island, Cocos (Keeling) Islands, Ashmore and Cartier Islands, Norfolk Island, or Coral Sea Islands; and
2. the department with responsibility for matters concerning the Antarctic if the impact is on Heard Island and McDonald Islands, or the Australian Antarctic Territory.

Governance of statutory entities and other portfolio bodies

5.60 The general position is that new functions are conferred on an existing Commonwealth entity in preference to the creation of a new Commonwealth entity and that, where possible, new entities be established administratively. Only where it is clear that there is a need for statutory powers to be exercised is it necessary to establish a new Commonwealth entity in statute.

5.61 The Finance Department provides advice on the Commonwealth’s governance and financial management frameworks, particularly in relation to the most appropriate governance structure for the intended policy outcome. Departments must ensure that the Finance Department is consulted at an early stage as part of the policy development process leading to the decision to create a new body or the variation of existing governance arrangements. 

Accounting and audit arrangements

5.62 Departments must consult the Finance Department and the Australian National Audit Office on appropriate accounting and audit provisions.

Financial provisions

5.63 All proposed provisions which are in any way related to the appropriation, use or control of Commonwealth moneys (including Special Accounts) must be determined in consultation with the Finance Department. The Treasury must be consulted on proposals that affect taxation law.

5.64 Special (also known as ‘standing’) appropriations are only to be included in legislation when it is necessary or desirable to:

1. create a legal entitlement to a benefit, and to provide that benefit to everyone who satisfies the criteria set out in the legislation, noting the special appropriation might be uncapped (e.g. the age pension);
2. support the independence of an office from the Parliament and the Executive by providing for the automatic payment of the remuneration of holders of the office (e.g. the salaries of judges);
3. demonstrate Australia’s ability to meet its financial obligations independently of further parliamentary approval of funds (e.g. the repayment of loans to multilateral international organisations);
4. pay money urgently in advance of the next annual appropriation bill where, because of the nature or amount of the payment, the Advance to the Finance Minister is not suitable (e.g. urgent payment of large amounts for natural disaster relief);
5. provide for calendar year funding arrangements and other special circumstances which would be difficult to accommodate in annual appropriation bills or where there may be substantial drawing on the Advance to the Finance Minister; or
6. support schemes that provide for levies, fees or amounts from other governments that are collected to be paid through the Consolidated Revenue Fund to an industry body or for a specified purpose.

5.65 As a general principle, any legislation authorising expenditure programs will require that decision makers administer the program within the funds approved in the Budget, and provide an appropriate means by which funds available can be rationed if necessary (e.g. by adjustments to eligibility criteria, the levels of grant, or deferment of payment). Consideration also needs to be given to a financial limit or a sunsetting arrangement, so that a special appropriation is not perpetuated beyond the initial requirements without further government and parliamentary approval.

Subordinate legislation: legislative and non-legislative instruments

5.66 Matters of detail and matters which may change frequently are best dealt with by subordinate legislation, for example:

1. fees to be paid for various services; and
2. addresses where applications are to be lodged.

5.67 A variety of other matters may be included in subordinate legislation in order to streamline the primary legislation. However, the desirability of simplifying primary legislation is only one consideration in this area, and others (such as parliamentary control of certain matters) may be more important in particular cases (see also paragraphs 1.11 to 1.11). OPC client advisers can advise on this issue when instructions are being prepared. The drafter may also wish to discuss the location of certain provisions during the drafting process.

5.68 OPC needs to be aware of the general scope of any intended subordinate legislation so that sufficiently wide instrument‑making powers are included in the bill. For example, if legislative instruments are to confer judicial power, impose penalties or require the charging of fees, an express provision conferring power for these purposes must be included in the Act. Legislative instruments for which there is no clear authorising provision in the relevant Act may become a focus of the Senate Standing Committee for the Scrutiny of Delegated Legislation (see paragraph 1.13) and may be disallowed as part of the parliamentary process.

5.69 OPC is available to provide advice on issues connected with legislative and non‑legislative instruments, including:

1. the drafting of instruments;
2. the power to make instruments;
3. the making, registration and disallowance of instruments; and
4. the preparation of compilations of instruments.

See also, OPC’s Instructor Guidance Noteon key things to consider in relation to drafting instruments and OPC’s Instruments Handbook.

5.70 If a bill provides for an instrument-making power, consultation with AGD may be required to determine whether an instrument made using that power would be of legislative character.

5.71 OPC will (within the policy parameters known at the time of drafting a bill) ensure that instrument-making powers are sufficient.

5.72 Bills that inappropriately delegate legislative powers (including by relying on instrument‑making powers) are likely to attract criticism in the Parliament, particularly from the Senate Standing Committee for the Scrutiny of Bills. In addition, legislative instruments that contain matters more appropriate for parliamentary enactment are likely to attract criticism, particularly from the Senate Standing Committee for the Scrutiny of Delegated Legislation. If broad instrument-making powers are included in a bill, these must be fully explained and justified in the explanatory memorandum (see paragraphs 7.27 to 7.29). 

5.73 Drafting of some forms of subordinate instruments are tied to OPC under the Legal Services Directions issued by the Attorney‑General under the Judiciary Act 1903. Tied work includes regulations, ordinances and regulations of non-self-governing territories and other legislative instruments made or approved by the Governor-General. Other subordinate instruments can be drafted by in-house counsel, by OPC on a fee‑for‑service basis or by other legal advisers.

5.74 The Legislation Act 2003 (the Legislation Act) governs the making, registration, scrutiny and sunsetting of legislative instruments. Importantly, the Legislation Act requires legislative instruments to be registered on the Federal Register of Legislation. Once registered, instruments are tabled and scrutinised in the Parliament and most are subject to parliamentary disallowance. They are also generally subject to automatic sunsetting after 10 years. The Legislation Act provides that certain instruments are exempt from its provisions or can be made exempt from all or some of its provisions by regulations under the Legislation Act. Exemptions from sunsetting are generally provided in the Legislation (Exemptions and Other Matters) Regulation 2015. Information about processes and requirements for exemptions is contained in the Guide to Managing Sunsetting of Legislative Instruments.

5.75 If an exemption is to be sought, there must be strong justification to depart from the policy on legislative instruments as embodied in the Legislation Act. An example is where the possibility of parliamentary disallowance may cause uncertainty for business if the instrument is to be relied upon from the date it takes effect.

5.76 AGD must be consulted on proposals to exempt instruments from some or all of the Legislation Act. Instructors must make early contact with AGD to discuss seeking such approval.

5.77 The Legislation Act is important as it ensures access to, and parliamentary scrutiny of, laws affecting the public. It also improves the transparency and integrity of the making of legislative instruments. Accordingly, the Senate Standing Committee for the Scrutiny of Bills is likely to consider carefully any bill that proposes the exemption of an instrument that would normally have been subject to the Legislation Act’s requirements. It is therefore important that the explanatory memorandum states clearly why the exemption is necessary and what will be the effect. Further information about legislative instruments and compliance with the Legislation Act can be found in OPC's Instruments Handbook.