BILLS DIGEST NO. 11, 2016–17              20 September 2016

Statute Update Bill 2016

Juli Tomaras
Law & Bills Digest Section 

This Digest replaces the 14 September 2016 version, to reflect the report of the Senate Scrutiny of Bills released on that date.

Date introduced:  1 September 2016
House:  House of Representatives
Portfolio:  Attorney-General
Commencement: On the 28th day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at September 2016.

History of the Bill

An almost identical version of this Bill was introduced into the 44th Parliament on 3 March 2016.[1] That Bill had not passed the House of Representatives when Parliament was prorogued on 15 April 2016. The Bill lapsed on prorogation of Parliament.

Purpose of the Bill

The purpose of the Statute Update Bill 2016 (the Bill) is to update provisions in relevant Acts so as to align and be consistent with contemporary drafting precedents and practice, thus serving to enhance clarity, readability and administration of relevant legislation.

Structure of the Bill

This is an omnibus bill which contains four schedules and proposes a large number of amendments across a large number of portfolios to:

•       substitute penalties expressed as a number of dollars with penalties expressed as a number of penalty units in 100 principal Acts (Schedule 1)

•       substitute references to ‘maximum penalty’ with references to ‘penalty’ in 27 principal Acts (Schedule 2)

•       clarify the evidentiary status of certain certificates and registers in the provisions of 32 principal Acts, to provide that the evidentiary status of a certificate (or other instrument or register) is prima facie evidence of the matters stated in it (Schedule 3)

•       update references in four principal Acts (consistent with the amendments made in Schedule 3 of the Statute Law Revision Act 2012[2]) so that they refer to aircraft registered ‘under regulations made under the Civil Aviation Act 1988’ rather than referring to the specific regulations by name (Schedule 4).

Background

According to the Explanatory Memorandum, this Statute Update Bill was required to take account of changes to drafting precedents and practice which were not considered appropriate to include in a Statute Law Revision Bill because some of them would resulting in minor changes to the substance of the law. [3] Substantive changes are not considered appropriate for inclusion in Statute Law Revision Bills.[4]

First Parliamentary Counsel’s editorial powers under the Legislation Act 2003

The Office of Parliamentary Counsel (OPC) is an independent statutory agency responsible for drafting proposed Commonwealth laws and subordinate legislation, and performing related functions. OPC is headed by First Parliamentary Counsel (FPC) who is authorised to, among other things, approve editorial and other technical matters suitable for inclusion in appropriate amending Bills.[5]

Since March 2016, under section 15V of the Legislation Act 2003 (Cth) (Legislation Act), the FPC is empowered to make minor editorial or presentational changes to the text of an Act in preparing a compilation[6] for registration on the Federal Register of Legislation (FRL).[7] These editorial changes have effect as though they were made by amendments to the original Act.[8] The editorial changes are only permitted where the FPC considers that the change is needed to bring the Act or instrument into line with, or more closely into line with, legislative drafting practices of OPC; or to correct an error or a misdescribed amendment.[9] Significantly, such an editorial change must not change the substantive effect of the law.[10]

Because at least some of the otherwise minor amendments to this Bill will alter the substance of the law, it would not have been appropriate to use the editorial change power in section 15V to effect the changes.

Committee consideration

Senate Selection of Bills Committee

The Senate Section of Bills Committee resolved to defer consideration of this Bill until its next meeting.[11]

Senate Standing Committee for the Scrutiny of Bills

The version of this Bill introduced in the 44th Parliament in March of this year was considered by the Scrutiny of Bills Committee in May 2016.[12] At that time, the Scrutiny of Bills Committee sought the Attorney-General’s advice ‘as to whether section 4AB of the Crimes Act 1914 applies to existing regulation-making powers that authorise regulations to prescribe offences with penalties not exceeding an amount expressed in dollars’.[13]

In its report of 14 September 2016, the Scrutiny Committee noted that the Explanatory Memorandum to the current Bill confirms that section 4AB of the Crimes Act applies to these provisions.[14] The Committee thanked the Attorney-General for including this information and had no further comment on the Bill.[15]

Policy position of non-government parties/independents

At the time of writing, the position of non-government parties and independents had not been publically articulated.

Financial implications

The Explanatory Memorandum notes that the Bill will have no financial impact.[16]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible as the proposed amendments represent ‘minor technical corrections and improvements’ resulting in ‘either no change or only minor changes to the substance of the law’, which do not engage and human rights. [17]

The Parliamentary Joint Committee on Human Rights considered that the version of the Bill introduced in March 2016 did not raise human rights concerns.[18]

Key issues and provisions

Schedule 1—References to dollar penalties

A number of older Commonwealth Acts still contain references to a penalty for an offence expressed as a dollar amount. The amendments proposed under Schedule 1 substitute penalties expressed as a number of dollars with penalties expressed as a number of penalty units in 100 principal Acts.

Current Commonwealth drafting principle and practice is that a penalty for an offence should be expressed in ‘penalty units’ rather than dollar amounts.[19] Section 4AA of the Crimes Act 1914[20] (Cth) specifies the current monetary value of a penalty unit equals $180. The rationale for expressing a penalty as a penalty unit rather than a dollar amount is that it:

… facilitates the uniform adjustment of penalties across legislation from time to time to reflect the changing value of money. This also ensures that the relationship between the levels of maximum fines and imprisonment penalties is preserved despite this change.[21]

Section 4AB of the Crimes Act provides for the automatic conversion of penalties expressed in dollars into penalties expressed in penalty units, which is a time-inefficient process. In addition, the retention of dollar amounts in some pieces of legislation is misleading as they can appear to be less than the actual legal penalty calculated in accordance with section 4AB. The Explanatory Memorandum states that this is because the conversion from dollars to penalty units involves ‘dividing the number of dollars by 100, and rounding up to the next whole number if necessary, [to work out the penalty unit amount] which leads to a higher penalty than is stated in the provision’.[22] For example, if an offence sets out a penalty of $5,000, this would be converted into a reference to a penalty of 50 penalty units, which is currently $9,000—a significantly higher penalty than that which appears on the face of the legislation. The proposed amendments are designed to remove the need for such conversion and to provide clarity as to the penalty involved for the relevant offence.

Schedule 2—References ‘maximum penalty’

Current Commonwealth drafting practice is that ‘a penalty will be read as being a maximum penalty unless the contrary intention appears.’[23] This is provided in section 4D of the Crimes Act 1914 (Cth). Accordingly, the proposed amendments in Schedule 2 substitute references to ‘maximum penalty’ with references to ‘penalty’ in 27 principal Acts. Minor consequential changes are also made as a result of substituting references to ‘maximum penalty’.

Schedule 3—Amending Acts

A number of Commonwealth Acts contain provisions that enable a person or entity to provide proof of a formal or technical matter that is not likely to be in dispute (though may be difficult to prove under the normal evidential rules) by providing an evidentiary certificate (or other instrument) is prima facie, evidence of the matter that is stated in it. For example, a reporting scientist may provide an evidentiary certificate in a criminal proceeding stating that any of the following is evidence of the matter in question:

•       that a stated thing was received at a stated laboratory on a stated day

•       that the thing was tested at the laboratory on a stated day or between stated days

•       that a stated DNA profile has been obtained from the thing

•       that the reporting scientist:

–      examined the laboratory's records relating to the receipt, storage and testing of the thing, including any test process that was done by someone other than the reporting scientist; and

–      confirms the records indicate all quality assurance procedures for the receipt, storage and testing of the thing that were in place in the laboratory at the time of the test were complied with.

Another example is an evidentiary certificate supplied by Centrelink to Pension Bonus Scheme members, to acknowledge that they have met the work test for the period indicated on the certificate.

Current Commonwealth drafting practice is to include a provision in the relevant legislation stating that an evidentiary certificate is either conclusive or prima facie evidence of the matters contained in that certificate. The Explanatory Memorandum states that the proposed amendments in Schedule 3 of the Bill relate to provisions in Acts that deal with the evidentiary status of a certificate (or other instrument or register) to clarify that for those provisions, an evidentiary certificate is prima facie evidence of the matters stated in it.

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[1].              Parliament of Australia, ‘Statute Update Bill 2016 homepage’, Australian Parliament website.

[2].              L Ferris, Statute Law Revision Bill 2012, Bills digest, 16, 2012–13, Parliamentary Library, Canberra, 2012.

[3].              Explanatory Memorandum, Statute Update Bill 2016, p. 2.

[4].              Department of the Prime Minister and Cabinet (PM&C), Legislation handbook, 4th edn., PM&C, Canberra, 1999, p. 24.

[5].              The Office of Parliamentary Counsel (OPC), Drafting direction no. 4.4—changes using FPC's editorial powers and statute law revision amendments, document release 2.0, reissued 29 February 2016, pp. 7–8; PM&C, Legislation handbook, op. cit., p. 24.

[6].              For more detail refer to C Raymond, Statute Law Revision (Spring 2016) Bill 2016, Bills digest, 8, 2016–17, Parliamentary Library, Canberra, 2016. A ‘compilation’ of an Act is a point in time collation of an Act as it was originally enacted by a ‘principal Act’, and any amendments made to its provisions over time by an ‘amending Act’ such as repealing and substituting particular provisions or parts of provisions.

[7].              Legislation Act 2003 (Cth) (Legislation Act), Chapter 2, Part 2, Division 3, inserted by the Acts and Instruments (Framework Reform) Act 2015.
See also: D Spooner, Acts and Instruments (Framework Reform) Bill 2014, Bills digest, 70, 2014–15, Parliamentary Library, Canberra 2014.

[8].              Legislation Act, section 15W.

[9].              Legislation Act, subsection 15V(2). (This provision also covers editorial changes to legislative and notifiable instruments.) Subsection 15V(4) imposes a corresponding condition on the exercise of the power under subsection 15V(3) to make presentational changes.

[10].              Legislation Act, subsection 15V(6).

[11].              Senate Standing Committee for Selection of Bills, Report, 5, 2016, The Senate, amended 1 September 2016.

[12].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 5, 2016, The Senate, 3 May 2016, p. 17.

[13].              Ibid., p. 19.

[14].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 6, 2016, The Senate, 14 September 2016, p. 37. 

[15].              Ibid.

[16].              Explanatory Memorandum, Statute Update Bill 2016, op. cit., p. 2.

[17].              The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill.

[18].              Parliamentary Joint Committee on Human Rights, Thirty-seventh Report of the 44th Parliament, 2 May 2016, p. 2.

[19].              Attorney-General’s Department (AGD), A guide to framing Commonwealth offences, infringement notices and enforcement powers, AGD, Canberra, September 2011, p. 42; Office of Parliamentary Counsel (OPC), OPC drafting manual, edn. 3.1, February 2016, p. 35.

[20].              Crimes Act 1914.

[21].              AGD, A guide to framing Commonwealth offences, infringement notices and enforcement powers, op. cit., p. 42.

[22].              Explanatory Memorandum, Statute Update Bill 2016, op. cit., p. 5.

[23].              AGD, A guide to framing Commonwealth offences, infringement notices and enforcement powers, op. cit., p. 37.