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Review of the Legislative Instruments Act (2003); Submission to Legislative Instruments Act Review Committee (May 2008)

May 2008 Office of the Privacy Commissioner 1. The Office is an independent statutory body whose purpose it is to promote and protect privacy in Australia. The Office has responsibility for the protection of individuals personal information that is handled by Australian and ACT Government agencies, and personal information held by all lar...

pdfReview of the Legislative Instruments Act (2003); Submission to Legislative Instruments Act Review Committee (May 2008)

May 2008

Office of the Privacy Commissioner

1. The Office is an independent statutory body whose purpose it is to promote and protect privacy in Australia. The Office has responsibility for the protection of individuals' personal information that is handled by Australian and ACT Government agencies, and personal information held by all large private sector organisations, health service providers and some small businesses. The Privacy Act 1988 ('the Privacy Act') regulates how these agencies and organisations handle personal information. In addition, the Office has regulatory functions under other Acts, such as the Telecommunications Act 1997 and the Crimes Act 1914. The Office particularly draws the Commission's attention to its regulatory functions in regard to the handling of credit reporting information under Part IIIA of the Privacy Act.

About this submission

2. The Office of the Privacy Commissioner ('the Office') welcomes the opportunity to make a submission to the review of the Legislative Instruments Act 2003 ('the LI Act'), conducted by a Review Committee ('the Committee') appointed by the Attorney-General, the Hon Robert McClelland, and comprising Mr Anthony Blunn AO, Mr Ian Govey and Professor John McMillan. The Office has noted the terms of reference and issues paper released as part of this review.[1]

Preliminary comments

3. In general, the Office supports the operation of the LI Act and the Federal Register of Legislative Instruments (FRLI), as established under s 20 of that Act. In the Office's view, the process of submitting legislative instruments for Parliamentary scrutiny has been significantly streamlined by FRLI, particularly when compared to the previous arrangements for tabling legislative instruments. The Office has also welcomed the assistance that has been provided by FRLI staff and the guidance material that is available, particularly the Legislative Instruments Handbook (December 2004), which has proven invaluable in preparing instruments.

4. The Office also supports the objects of the LI Act, particularly those that provide for an accessible central source of Commonwealth legislative instruments. Similarly, the Office supports the objects of encouraging appropriate consultation before making legislative instruments and high standards in drafting, as well as the establishment of mandatory sunsetting provisions.

5. However, the Office submits that there are some matters where the LI Act and FRLI could be enhanced. These comments draw on the Office's experiences in registering legislative instruments, as well as using FRLI as a repository of instruments.

Questions 1-3:  Scope of the LIA and registration of legislative instruments

Clarifying what is a legislative instrument

6. In response to question 1, the Office recognises that there remains some uncertainty regarding the definition of what is a legislative instrument.

7. This uncertainty has been especially pronounced in regard to the backcapture process of legislative instruments made prior to the implementation of FRLI. While in some places the backcapture process has been useful in clarifying the status of instruments, there have been occasions where uncertainty has emerged. This has included, for example, where an instrument has both administrative and legislative characteristics. In some cases, this uncertainty has led to conflicting advice from FRLI staff.

8. The Office recognises that there are complexities around the meaning of legislative instrument, and that any definition may evolve due to factors such as decisions and interpretations of courts. The Office suggests that the Review note the need for ongoing advice and guidance on the meaning of legislative instrument, particularly if it continues to evolve.

Exemptions due to personal privacy concerns

9. The Office notes that regulations have been made that exempt certain instruments from the FRLI regime in certain circumstances. The issues paper notes that one such circumstance has included to avoid publication of material because of personal privacy concerns.

10. While the Office generally supports this approach, it should be noted that, on occasion, the Privacy Commissioner has made legislative instruments that relate to a specific individual (as an applicant for a Public Interest Determination), without need to identify that individual.[2]

11. Accordingly, de-identifying individuals can result in legislative instruments that are accessible while not unnecessarily interfering with an individual's privacy.

Questions 4-7:  Consultation requirements of the LI Act

Appropriate consultation undertaken

12. The Office generally supports the requirement that legislative instruments should be subject to public consultation, in particular where they may affect the handling of individuals' personal information. As required by various provisions of the Privacy Act, the Office has engaged in consultation on various legislative instruments made since the LI Act came into effect. This consultation has generally been broad-based, though more targeted consultation has also be undertaken where a matter contained an element of urgency.

13. For example, before making a Public Interest Determination, the Privacy Act requires that the Privacy Commissioner publish the application for that determination, provide a draft instrument to any appropriate person and, if requested, hold a conference. In making Public Interest Determinations 10 and 10A, an extensive public consultation process was undertaken, as explained in the statement of reasons accompanying that instrument.[3]

14. Accordingly, while the Office does not express a view on the consultation conducted by other rule-makers, it is submitted that the Privacy Commissioner has conducted appropriate consultation before making legislative instruments.

Improving consultation

15. The Office notes that the existing consultation requirement in the LI Act is relatively narrow. Under s 17, rules-makers are expected to conduct consultation 'particularly' in regard to a proposed instrument that is likely to:

  • have a direct, or substantial indirect, effect on business; or
  • restrict competition.

16. The Office suggests that appropriate consultation, including with the Privacy Commissioner, should also be required where a proposed legislative instrument may affect the handling of individuals' personal information. This would align with the expectations set out in the Australian Government's Legislation Handbook regarding primary legislation, whereby agencies are expected to consult with the Privacy Commissioner before making primary legislation that may affect Australians' privacy.[4]

Questions 8-10:  Drafting standards

Legislative Instruments Act Handbook

17. In regard to measures set out in the LI Act, the Office has received some guidance and advice from FRLI staff on drafting legislative instruments (s 16). In addition, the Office has found the Legislative Instruments Handbook to be a valuable resource. The Office suggests that it would improve the utility of this resource to make it more readily accessible. Currently, this resource is only available in the restricted FRLI lodgement pages, and may not always be easily accessible by staff who are preparing legislative instruments. Making the handbook publicly available would also improve transparency in the community regarding the requirements for legislative instruments.

Question 11-16:  FRLI as a repository of legislative information

Documents in force from "time to time"

18. The Office submits that, except where expressly provided by the enabling legislation, documents incorporated by reference into legislative instruments should not be taken as having effect according to their terms "from time to time". Documents incorporated by reference should be limited to their terms at the time the legislative instrument was scrutinised by Parliament. Such a measure prevents the scope or application of the law being varied without appropriate scrutiny and oversight by Parliament, or without appropriate consultation with stakeholders.

Accessibility of documents incorporated by reference

19. Question 11 seeks views on whether rule-makers should be required to make documents incorporated by reference available to the public, and if so, how.

20. The Office notes concerns regarding the incorporation by reference of documents that may not be freely accessible. The issues paper notes that Australian and international standards may provide an example of less accessible documents. Such documents may not always be widely or freely available, making it difficult to determine how they affect the handling of individuals' personal information if incorporated into legislative instruments.

21. In the Office's view, it is important that the full potential effect of a legislative instrument should be apparent at all stages of the legislative instruments' life, including during the process of making the instrument (from consultation through to Parliamentary scrutiny), as well as after they are made.

22. Accordingly, the Office supports the existing expectation set-out in the Legislative Instruments Handbook that documents included by reference should be described in the explanatory statement and information provided on where they may be accessed. The Office also submits that, given FRLI has introduced electronic lodgement and storage, it may be appropriate for documents included by reference to also be provided in electronic form, either as schedules to the legislative instrument or as explanatory material.

Questions 17-24:  Public access to legislative instruments

Utility of website

23. The Office believes that FRLI has improved public access to legislative instruments.

24. However, the Office's experience has been that the web site on which it is hosted could be enhanced. In particular, there are times where the site has proven slow and the search function for legislative instruments does not always seem intuitive. As a primary object of the LI Act is to improve public accessibility to legislative instruments, these challenges are, in the Office's view, not only technical but fundamental to its utility.

25. The Office has also noted small technical issues relating to lodging instruments, such as a 'remove' function that was unavailable to remove attachments and difficulty in identifying how to attach explanatory material as part of the backcapture process.

Questions 31-36:  Periodic review and repeal of legislative instruments (sunsetting)

26. Question 32 seeks views on whether the default sunsetting provision for all legislative instruments should be reduced from 10 to 5 years. In general, the Office submits that the existing 10 year period is appropriate.

27. Reducing the sunsetting period may have the unintended effect of creating an unreasonable burden on agencies to conduct review process at shorter intervals. Given the Office invests considerable efforts into conducting consultation when making such instruments, this could represent a significant impact on resources.

28. In addition, the Office notes that if a legislative instrument becomes unnecessary within the 10 year period the decision maker will usually be free to conduct a review and where necessary repeal the instrument within that time. Further, where appropriate, the decision maker will usually have discretion to make a legislative instrument with a duration of less than 10 years. Given this flexibility in the potential duration of legislative instrument, it seems unnecessary to create a 5-year sunsetting period.

29. If the Committee chose to explore the possibility of shorter sunsetting periods the Office suggests that one option maybe to consider providing for the relevant scrutinising committee in either House of Parliament to be able to either recommend or require shorter sunsetting periods where there is a clear public interest for such a measure. Shorter sunsetting periods may be appropriate where a legislative instrument:

  • has a significant regulatory impact; or
  • has a significant impact on the rights of individuals, including in regard to the handling fo their personal information; or
  • is a response to circumstances that may reasonably be expected to be one-off or short-term.

Questions 37-46:  Other issues

Aligning existing obligations regarding explanatory material

30. The Office suggests that it may be appropriate for the LI Act to provide for existing requirements that may already apply to a legislative instrument and which serve the same policy intent.

31. For example, the Privacy Act requires that, when making a Public Interest Determination, the Privacy Commissioner must "include" in that instrument a "statement of reasons". At the same time, section 26 of the LI Act requires that a legislative instrument must be accompanied by an "explanatory statement".

32. Accordingly, in making a Public Interest Determination, the Office prepares explanatory material that is incorporated within the instrument, as well as explanatory material that accompanies that instrument. While each document is substantively similar, differing requirements regarding formatting and drafting means that two statements have to be produced that explain the same matter. The Office suggests that this is an inefficiency that could be addressed by clarifying the relationship between requirements in the LI Act, and similar requirements in enabling legislation.



[1] Available at

[2] See, TPID 2005-1 and 2006-1

[3] Public Interest Determination 10 and the accompany statement of reasons are available at

[4] Paragraph 4.7(h)(vi) at page 18.