Index to Explanatory Memoranda 1901–1982

‘Was there an EM?’: Explanatory Memoranda and Explanatory Statements in the Commonwealth Parliament*

Patrick O'Neill
Law and Bills Digest Section

Contents

Executive Summary
Introduction
Explanatory material in the United Kingdom Parliament
The first Explanatory Memorandum: Copyright Bill 1905
The second Explanatory Memorandum: Commonwealth Electoral Bill 1905
The first Comparative Memoranda
Later developments
From unpredictability to codification
    Legislation Handbook
    Standing Orders
The quality of Explanatory Memoranda
Other sources for research on Bills
Online sources for Explanatory Memoranda
Explanatory Statements to Commonwealth Regulations
The Index to Explanatory Memoranda
Appendix One: Example of a Comparative Memorandum
Appendix Two: Explanatory Memoranda in the states and territories
Endnotes

*Originally published as Parliamentary Library Research Brief No. 15 2004–05. An earlier version of this paper was also published in the Autumn 2005 issue of Australian Law Librarian and the April 2005 issue of AIAL Forum. This online version was last updated on 12 September, 2006.

Executive Summary

Explanatory Memoranda now accompany every government Bill introduced into the Parliament, but this has not always been the case. From 1901 to 1982, there was no easy way of knowing if an Explanatory Memorandum had been produced for a particular Bill. An online Index to Explanatory Memoranda (‘the Index’), produced by the Parliamentary Library, will now make it possible for legislators and researchers to know if a Memorandum was produced.

In the first half of the 20^th century, Memoranda more commonly took the form of Comparative Memoranda, that is, documents that set out the text of a principal Act as it would appear if the current Bill was passed and identified the additions or deletions made by the Bill to that Act. From the 1950s, Explanatory Memoranda in the modern sense have been more common. These are documents that assist members of Parliament, officials and the public to understand the objectives and detailed operation of the clauses of a Bill.

Explanatory Statements are similar to Explanatory Memoranda, but the term is used for documents that explain the purpose of Commonwealth Regulations rather than Bills. These have been supplied by government departments to the Senate Regulations and Ordinances Committee since 1932. However, there is presently no easy way to obtain copies of Explanatory Statements that pre-date 1991. From 2005, Explanatory Statements to all subordinate legislation are available from the Federal Register of Legislative Instruments.

Introduction

Since 1984, section 15AB of the Acts Interpretation Act 1901 has provided for the use of extrinsic material in the interpretation of an Act of Parliament. Included in the list of relevant extrinsic material is:

… any explanatory memorandum relating to the Bill containing the provision, or any other relevant document, that was laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted;⁽¹⁾

Previously, Explanatory Memoranda (‘EMs’) had been used principally as an aid in the legislative process, but with this amendment, they assumed much more importance in the interpretative process. This change was not matched, however, by an increase in the availability of past EMs, and in fact, the early history of EMs is unknown. Judging from the number of phone calls received by the Parliamentary Library in Canberra, the question ‘Was there an EM?’ must be asked frequently of law librarians, but the only certain way to establish whether or not there was in fact an EM to a particular Bill has been to look physically at the bound volumes of Bills held by certain libraries.

This is about to change with the publication in May 2005, by the Commonwealth Parliamentary Library, of an online Index to all EMs from 1901 to 1982.⁽²⁾ This Index was established by the only possible means, that is, by checking all 198 volumes of Bills for that period. From 1983, it has been standard practice for an EM to be presented to Parliament with every government Bill. (This practice does not however apply to private senators’ or members’ Bills.) Thus the availability of EMs will now be clear for the whole history of the Commonwealth Parliament. The aim of this Research Brief is to explain some of the history revealed by the new Index. A brief overview of the history of EMs in the states and territories is also included at Appendix Two.

Explanatory material in the United Kingdom Parliament

It is worth recording the practice of the UK House of Commons which shows that the use of material similar to EMs is long-established. The 1883 edition of Erskine May’s guide to parliamentary practice states as follows:

… the analysis of the several clauses, which is often prefixed to the bill, supplies the place of the ancient breviate. The practice of affixing a breviate or brief to every bill, prevailed during the greater part of the 17th century; …⁽³⁾

In 1881, a complaint about explanatory material seems to imply that the practice of preparing explanatory material had fallen out of use and was viewed with some wariness:

Sir R. ASHETON CROSS … wished, however, to draw the attention of Mr. Speaker to the fact that at the head of the Bill, as circulated to hon. Members, there was a statement or a summary of the objects of the measure drawn up on the authority of those who had introduced it. He thought that such a practice was a dangerous one, and that if such a statement was to be drawn up at all it ought to be done by an entirely independent authority.

The Speaker replied:

As the right hon. Gentleman has called my attention to the statement of objects contained at the head of this Bill, I am bound to say … that I think the practice referred to is one which is open to abuse … No doubt, to a certain extent, some convenience may result from the practice of accompanying a Bill by such a statement; but, at the same time, I feel the force of the observation … that if a statement of this kind is desirable it should be drawn up by some independent authority.⁽⁴⁾

The Speaker’s subsequent instruction to the Public Bill Office on EMs was dated 9 March 1882 and marks the starting-point for current practice in the United Kingdom. The quotation from Erskine May above concluded as follows:

… and at present a member bringing in a bill may prepare a memorandum explanatory of the contents and objects of the bill, but containing nothing of an argumentative character, which, when revised in the Public Bill Office, will be printed and circulated with the bill.⁽⁵⁾

The first Explanatory Memorandum: Copyright Bill 1905

When was the first EM presented to the Commonwealth Parliament? The answer is, surprisingly early. When the Copyright Bill was introduced in the Senate in August 1905, questions were asked during debate about the origins of the clauses in the Bill. Senator George Pearce stated that:

Senator Keating in introducing the measure, indicated that it is largely based on the report of the [1875–78 UK] Royal Commission. It would have been helpful to honorable senators in the case of a highly technical measure of this description, if some indication had been given as to what portions of the bill are based on the report of the Commission, and what are based on existing legislation. We should then have been able to see how far the Bill clashes with, or takes away, existing rights in the States.⁽⁶⁾

Senator Henry Dobson complained that:

I notice from this Bill an absence of marginal notes, telling us from what source the clauses are taken. We have often found such notes of great service in the consideration of Bills. I am, however, informed that many of the clauses have been taken not from English Acts, but from Bills prepared as the result of various conventions and conferences on copyright. Those Bills, as Senator Symon tells us, have not yet been placed upon the statute-book of Great Britain.⁽⁷⁾

In replying to these concerns, Senator John Keating spoke for the Government:

I wish to indicate that I heard the representations made by some honorable senators in discussing the second reading. I think it might facilitate the consideration of the measure if some information of the character they referred to were supplied to them. Originally it was my intention to have a memorandum prepared on this highly technical Bill, which would help honorable senators to understand its provisions. Before the consideration of the Bill in Committee is resumed, I shall endeavour to get such information supplied to them as will enable them to properly approach its consideration.⁽⁸⁾

The resulting document, ‘Memorandum of References to Similar Provisions in Acts and Bills’, bears a printer’s date of 12 September 1905 and was referred to in the parliamentary debate on 13 September as ‘a very useful paper which has been circulated’.⁽⁹⁾ It lists every clause in the Bill and states the precedents from which the drafting has been derived (see Figure 1).⁽¹⁰⁾

The Copyright Bill 1905 was amended before it passed the Senate. A new version of the EM was prepared when the Bill came to the House of Representatives in October 1905.⁽¹¹⁾ The main differences were caused by the addition or deletion of a clause or two, and involve the renumbering of the clauses rather than changes to the text itself.

This first known EM for the Commonwealth Parliament is one of a very select group whose main task was to outline the precedents—from the United Kingdom, the Australian states, New Zealand or Canada—from which the provisions of a Commonwealth Bill were drawn.

Figure 1: Explanatory Memorandum (Senate version), Copyright Bill 1905

(This information was usually included in marginal notes; see p.8). There are only four such EMs in the Index, three of which date from before 1910.⁽¹²⁾

This brief history reveals some of the complexity of early EMs:

• different versions could be presented to either the Senate or the House of Representatives if a Bill was amended during its passage through the chamber in which it was introduced. Nowadays the differences may be highlighted by the use of the term ‘Revised Explanatory Memorandum’ or ‘Supplementary Explanatory Memorandum’, but this was certainly not the case during most of the 20^th century. For the period 1901–82, 22 instances have been found of different Senate and House of Representatives EMs. These are indicated in the Index with the phrase ‘Takes account of [Senate/House of Representatives] amendments to the Bill.’ On the other hand, there are many cases—460 in the Index—where identical EMs were presented to each chamber
• the differences may be visible only by a close reading of the two documents
• the EM may be mentioned in the parliamentary debate, but there is usually no mention of it in the Senate Journals nor in the House of Representatives Votes and Proceedings, and
• the only way of dating many EMs is to rely on the printer’s date, which seems to be consistently used only until 1959. Thereafter, the date of the introduction of a Bill is supplied in the Index as an approximation.

The second Explanatory Memorandum: Commonwealth Electoral Bill 1905

Two days after the EM for the Copyright Bill was printed, the same Minister, Senator Keating, made the second reading speech for the Commonwealth Electoral Bill 1905, saying:

… I hope by Saturday morning to have [senators] supplied with a printed memorandum which will not only give a reference to the sections of the Act sought to be amended, but point out concisely the effect of each amendment and the necessity or reason for its enactment.⁽¹³⁾

Later, in response to a request for a copy of the principal Act, he reiterated:

I shall supply [senators] … with a copy of the principal Act, and a memorandum which will clearly indicate, in concise form, the effect of each amendment, and the necessity or reason for its amendment.⁽¹⁴⁾

This description would sit well with any of today’s EMs. It qualifies the Commonwealth Electoral Bill 1905 as in fact the first Bill to have an EM in the modern sense. The four-page EM was printed on 16 September 1905. Although it has at most 3–4 sentences per clause of the Bill and concentrates on explaining what has changed rather than why it has changed, it is easily recognisable as an EM.⁽¹⁵⁾ Again, since the Bill was amended in the Senate before being sent to the House of Representatives, a revised EM was printed six days after the Bill was introduced into that chamber.⁽¹⁶⁾

The differences between the Senate and House of Representatives versions are best seen in the handwritten annotations of Robert Garran, then Secretary of the Attorney-General’s Department, in the file on the Bill now held by the National Archives of Australia.⁽¹⁷⁾ A ‘Comparative table of the clauses of the bill and the sections of the Commonwealth Electoral Act 1902’ had been prepared for an earlier version of the Bill, in mid-July 1905, and is available in the same file at the National Archives.⁽¹⁸⁾

Although these first EMs were revised to reflect parliamentary amendments to the Bills concerned, it was to be over 28 years before similar cases occurred, with the Excise Tariff 1933, the Navigation Bill 1935 and the Australian Soldiers’ Repatriation Bill 1935.

The first Comparative Memoranda

The natural tendency today is to regard EMs as the primary tool to assist Parliament in its task of scrutinising proposed legislation, but this was not the case during the first decades of the 20^th century. A number of approaches were tried before EMs established their supremacy.⁽¹⁹⁾

On a few occasions in 1901–02, when the first laws of the new nation were being made, versions of Bills were produced that showed, in bold font or strikethrough font, the additions or deletions being made during passage through Parliament. This happened for such contentious legislation as the Post and Telegraph Bill 1901, the Commonwealth Public Service Bill 1901, the Commonwealth Electoral Bill 1902, and the Customs Tariff Bill 1902.

Today, if amendments have occurred, new versions of Bills are routinely produced once they have passed one of the houses of Parliament. What is different about these early examples, however, is that the amendments are made obvious to the eye. This practice seems not to have persisted into 1903, but was replaced by other approaches. On one occasion, a sheet of amendments was circulated explaining the differences between the Judiciary Bill 1902 and the Judiciary Bill 1903.⁽²⁰⁾ More often, large Bills that had been subjected to many amendments were reprinted during the course of debate, but without highlighting the amendments by use of different fonts.

In 1905, in the debate on the Copyright Bill, there were allusions to the practice:

Senator KEATING.—If an entirely new Bill were submitted, it would be very difficult for honorable senators to appreciate where an alteration was being made.

Senator BEST.—Not unless it was shown in different type.

Senator KEATING.—That method has been adopted, but experience has shown that it is attended with some difficulties.⁽²¹⁾

Another legislative aid, occasionally used, was the production of a table of contents of the sections of a Bill. This was done for the Commonwealth Public Service Bill 1901 and the Navigation and Shipping Bill 1904. It did not however become a common practice until 1973.⁽²²⁾

Marginal notes were also inserted into some early Bills, showing the location of precedents from other jurisdictions for particular provisions of a Bill. These marginal notes were used from 1901 until at least 1945, and some were still present in the 1973 reprint of Commonwealth Acts.⁽²³⁾

A slightly new approach was tried later in 1905, the same year that the first EMs were produced. A document was produced setting out certain sections of the existing Immigration Restriction Act 1901, as they would be if amended. Again, in 1906, a part of the Australian Industries Preservation Bill 1906 was printed with the proposed amendments incorporated.

Most of these dozen documents related to completely new laws. As time went by, however, the practice of passing amending Acts prompted new ways of conveying information. The developments outlined in the preceding paragraphs culminated in the production of a new type of document.

Late in 1909, a document was presented to the House of Representatives entitled ‘Reprint of the Commonwealth Electoral Acts, showing the amendments proposed by the Commonwealth Electoral Bill 1909’ (see Figure 2).⁽²⁴⁾ The amending Bill was only 12 pages long, but the anticipatory reprint of the Act contained 54 pages, and began with this note: ‘Type ruled through indicates the matter proposed to be omitted. Black type indicates matter proposed to be inserted’. Users of word-processing software that tracks changes would be familiar with the practice adopted here.

This 1909 document contains nothing by way of summary or explanation of the Bill, and therefore cannot really be called an Explanatory Memorandum. The term ‘black-type memorandum’ is used for this type of document, even today, by staff of the Attorney-General’s Department and the Office of Parliamentary Counsel, because new material was shown in bold type. However, the term ‘Comparative Memorandum’ (CM) has been used before, and is adopted in the Index for this type of document.⁽²⁵⁾ A working definition might be this:

A document that sets out the text of a principal Act as it will appear if the current Bill is passed, and identifies the additions or deletions made by the Bill to that Act. Alternatively, it sets out differences between a current Bill and a former version of that Bill, or between an existing rate of tariff and a proposed rate.

Although the dozen documents produced from as early as 1901 do fit this definition of CM, the significant innovation in 1909 was that for the first time an anticipatory reprint of an existing Act, with proposed amendments highlighted by different fonts, was produced. The innovation did not pass unnoticed. During the second reading debate on 29 October 1909, Mr J.  H. Catts (Labor, Cook) spoke as follows:

I have not, so far, heard any honorable member congratulate the Minister of Home Affairs on the way in which this Bill has been presented for our consideration. I wish to do so now. Under the practice hitherto adopted in the framing of amending measures it has been very difficult for honorable members to compare the proposed amendments with the various provisions of existing legislation. I am very glad to note in this case a new departure. The Minister has supplied honorable members with a copy of the existing Act as proposed to be amended by this measure, in which the amendments are indicated in black letters. Honorable members are thus enabled very readily to understand the changes proposed to be made in the existing law.⁽²⁶⁾

In the period covered by the Index, there are 300 CMs, the latest having been issued for the Freedom of Information Bill 1981 (showing the differences between it and the Freedom of Information Bill 1978).⁽²⁷⁾ Of the 300, 112 constitute a subset that is probably of lesser interest for legal research: these are the documents that show the differences between old and new rates of customs and excise tariffs. That leaves 188 CMs that may be of interest to law librarians and other researchers, but be warned not to order a CM when you really want an EM. In contrast to CMs, there are 1423 EMs in the Index.

As with EMs, different versions of CMs may have been presented to each chamber of Parliament, depending on amendments in the originating chamber. This has occurred six times during the period covered by the Index, the last time being with the Conciliation and Arbitration Bill 1956.

Later developments

One of the more interesting EMs is the one presented for the Land Tax Assessment Bill 1909. Although the title of the Bill sounds innocuous and one would, these days, expect a rather dry outline of taxation, the EM in fact outlines the political objectives of the Bill as being to increase the white population of Australia:

A population sufficiently large to effectively develop its various resources and defend it from invasion is essential to the progress and even the very existence of every country. While this is true of all countries, it is particularly true of Australia. No land has greater natural resources; none, by reason of geographical situation or by the enormous extent of its coastline, is so vulnerable to attack.

… Our need is for men—of our own or kindred races—to settle upon our lands, to further develop our great resources, to create new wealth.⁽²⁸⁾

The first Bill that was subject of both an EM and a CM seems to have been the Income Tax Assessment Bill 1930, which occasioned this exchange in the House of Representatives:

Mr THEODORE (Dalley—Treasurer)[11.25].—I move—

That the bill be now read a second time.

Honorable members will no doubt appreciate the fact that the income tax laws are very complex, and have become highly technical. Amendments of a comprehensive character have become difficult to follow, and extremely difficult to understand.

Dr. Earle PAGE.—Difficult to explain, too.

Mr THEODORE.—As my predecessor, the right honorable member for Cowper (Dr. Earle Page) remarks, it is difficult to explain them. I have endeavoured to assist honorable members by circulating, in addition to the bill, a printed memorandum, showing, in black type, the proposed amendments to the original law, and also giving explanatory notes that are very extensive.

Mr. STEWART.—A most welcome innovation!

Mr THEODORE.—I think that they will be welcomed, although the notes themselves make somewhat tedious reading because of the technical terminology that must be employed. The circulation of the explanatory memorandum will, perhaps, make it unnecessary for me to traverse the whole bill, and to deal with every provision in detail. …⁽²⁹⁾

In this quotation, the term ‘memorandum’ appears to be used for what is now termed the Comparative Memorandum, and ‘explanatory notes’ is used for what is now termed the Explanatory Memorandum.

The first EM for a private senator’s Bill was the one presented for the Wheat Industry Insurance Bill 1938, but as a general rule, private senators’ or members’ Bills have not been accompanied by EMs. Only three other instances of EMs for private Bills are noted in the Index, though there may have been more.⁽³⁰⁾ Even today, the requirement for EMs is applied to government Bills rather than private Bills, although recently there has been a trend to produce EMs for major private Bills, such as the National Animal Welfare Bill 2003, which was introduced by the Australian Democrats.

Up to the 1940s, the numerical balance between EMs and CMs remained heavily in favour of CMs, but with the 1950s, EMs began to predominate, and during the 1970s, there were only eight CMs but 518 EMs. As to why CMs have apparently gone out of fashion, the answer might be that a good EM is normally superior to a CM, because it should explain not only the changes, but also the reasons for them. To take a random example, the EM for the Australian Citizenship Amendment Bill 1986 here states both the current law and the proposed changes:

Section 10 of the Act presently provides that persons born in Australia (other than children of diplomats, consular officials and enemy aliens) automatically become Australian citizens. This clause amends section 10 so that a person born in Australia after the amendment comes into effect will be an Australian citizen only if at the time of birth, at least one of the parents of the person is either an Australian citizen or a permanent resident. … (clause 4, at p. 2)

Up to the 1960s, the terms ‘Explanatory Memorandum’ and ‘Memorandum’ were used almost interchangeably for what is termed Comparative Memoranda in this Research Brief. The term ‘Notes on Clauses’ was first used as a full title in 1968, and during the 1970s the term ‘Explanatory Memorandum’ was used almost interchangeably with ‘Notes on Clauses’.

From unpredictability to codification

It was only in the early 1980s that the availability of an EM for a Bill began to become more predictable. The two sources for today’s rules relating to EMs are the Legislation Handbook and the Standing Orders of the House of Representatives. Below is an outline of the changes in the rules established by these two publications.

Legislation Handbook

The earliest incarnation of the Legislation Handbook was prepared by the Australian Public Service Board in 1975, and it gives a good description of the practice that prevailed up till then:

5.142 It is the practice of Ministers, from time to time, to arrange for the preparation of explanatory memoranda or other documents in connexion with Bills that are to be introduced into the Parliament. Though the memoranda take various forms, they usually relate to Bills of some complexity. The memoranda are prepared primarily for the information of Senators and Members and copies are circulated to them at the time of the introduction of the relevant Bill in each Chamber. A further distribution of copies to other persons may be made subsequently by the sponsoring department. In the past, the physical form of memoranda has varied, some being duplicated and others printed by letterpress, offset or photo-lithography.

5.143 In the case of those memoranda printed by the A.G.P.S. in letterpress format it has been the practice of the Parliament to order the printing of further copies so that the memorandum may be published and sold by the A.G.P.S. in the same manner as the Bill to which it relates.

5.144 Directions were given in 1968 by the Clerks of the Senate and of the House of Representatives that, in future, all memoranda circulated for the information of Members and Senators in connexion with Bills should be published and sold by the A.G.P.S.⁽³¹⁾

The Legislation Handbook has been published by the Department of the Prime Minister and Cabinet since 1980, and has gone through four editions since then.⁽³²⁾

The 1980 edition of the Legislation Handbook stipulates for the first time that EMs shall be prepared for all Bills that need explanation:

Previously, explanatory memoranda have been prepared on certain complex bills only. These documents are circulated for the information of senators and members at the time of the introduction of a bill in the relevant Chamber and serve a similar purpose to notes on clauses. A unified terminology will now be used and explanatory memoranda should be prepared on all bills the clauses of which require any explanation. Simple bills will require only the heading and outline, described in para 2.73 below. Under this revised format, explanatory memoranda will replace both the notes on clauses and general outline.⁽³³⁾

In March 1981, the Attorney-General’s Department held an in-house symposium on statutory interpretation.⁽³⁴⁾ This led to the announcement on 27 May 1981 that a discussion paper would be produced on extrinsic aids to statutory interpretation. (On the same day, the amendments to the Acts Interpretation Act requiring the purpose or object of an Act to be taken into account in interpreting it were introduced into the Senate.) The discussion paper was tabled in Parliament on 14 October 1982, leading to a public symposium in Canberra on 5 February 1983.⁽³⁵⁾ The proceedings of the symposium were tabled on 30 November 1983.⁽³⁶⁾ The resulting amendments to the Acts Interpretation Act—for the purposes of this Research Brief, principally the insertion of section 15AB—were introduced into the Senate on 8 March 1984, receiving assent on 15 May 1984.⁽³⁷⁾ From that date, EMs have been a valid extrinsic aid for the interpretation of statutes in the circumstances outlined in the Acts Interpretation Act (see the quotation from the Legislation Handbook below for details).

Meanwhile, the second edition of the Legislation Handbook had been published, taking into account legislative procedures as at June 1983. This edition for the first time required an EM for every government Bill:

An explanatory memorandum is prepared for every bill. Where a number of closely interrelated bills are being introduced into the Parliament simultaneously, a single document incorporating explanatory memorandums for all the bills in the package may be produced if that is a more convenient way of providing the information.⁽³⁸⁾

The 1983 Handbook also specified for the first time that supplementary EMs should be produced for government amendments unless the amendments were brief and straightforward. It also required EMs to be revised before amended Bills were presented to the other house of Parliament.⁽³⁹⁾ This had of course happened with the first EM in 1905, so the Handbook was merely codifying a practice that had been followed many times. This also means that from 1983, simply requesting ‘the EM’ for a Bill that was amended before passing to the next house of Parliament is not a clear-cut request: one should specify which EM is required.

Current practice had, however, preceded both the Legislation Handbook and the amendments to the Acts Interpretation Act. By the end of 1982, if not sooner, it was standard practice for an EM to be prepared for every government Bill, making 1982 a logical time to conclude the Index. However, during the 33rd Parliament (March 1983–October 1984), there were in fact three government Bills that did not have EMs, perhaps because of the speed of their passage through Parliament.⁽⁴⁰⁾

The later editions of the Legislation Handbook spell out in more detail the structure that was already in place. The main changes relate to such things as Financial Impact Statements and Regulation Impact Statements. However, they do include a succinct summary of the purpose of an EM:

8.1    An explanatory memorandum is a companion document to a bill, to assist members of Parliament, officials and the public to understand the objectives and detailed operation of the clauses of the bill.

8.2    The Acts Interpretation Act 1901 (section 15AB) allows an explanatory memorandum (and also a second reading speech – see paragraph 8.28) to be used by a court to interpret legislation to:

(a)   confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or

(b)    determine the meaning of a provision when:

(i)    the provision is ambiguous or obscure; or

(ii)   the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or unreasonable.⁽⁴¹⁾

Standing Orders

From 1986, the practice was adopted of formally tabling EMs in the House of Representatives and the Senate at the end of the second reading speech that introduced a Bill. This meant that the existence of the EM was recorded in the House of Representatives Votes and Proceedings and the Senate Journal, and thus avoided the need for the Clerks to give evidence in court that an EM had indeed been presented to Parliament (under the Evidence Act 1905, s. 7(1), the Votes and Proceedings or Journals, as well as papers presented to either House of the Parliament, were able to be taken at face value as evidence).

In February 1994, a provision relating to EMs was first inserted into the House of Representatives Standing Orders. This required EMs to be presented with the Bill, at the first reading stage, and read as follows:

First reading and explanatory memorandum
215. On the presentation of a bill by a Member, or on the receipt from the Senate of a bill for the concurrence of the House, it shall be read a first time without any question being put. In the case of a bill presented by a Minister, an explanatory memorandum signed by the Minister and including an explanation of the reasons for the bill shall then be presented to the House.

In 1996, the previous practice was reverted to, and the EM was again presented at the end of the second reading speech introducing the Bill.⁽⁴²⁾

Most recently, on 29 March 2006— after debate delayed the tabling of the EM for the Workplace Relations Amendment (Work Choices) Bill 2005 in November 2005—the presentation of the EM was again moved from the second reading to the first reading stage: the Bill and the EM will both be presented, and the second reading speech may immediately follow.⁽⁴³⁾

The Standing Orders of the House of Representatives currently provide as follows:

141 First reading and explanatory memorandum
(a) When a bill is presented to the House, or a Senate bill is first received, the bill shall be read a first time without a question being put. A Member presenting a bill during private Members’ business may speak to the bill, before it is read a first time, for no longer than 5 minutes.
(b) For any bill presented by a Minister, except an Appropriation or Supply Bill, the Minister must present a signed explanatory memorandum. The explanatory memorandum must include an explanation of the reasons for the bill.

There is no similar provision relating to EMs in the Standing Orders of the Senate.

The quality of Explanatory Memoranda

Once one has obtained a copy of an EM, the next question is: how useful is it going to be? Since EMs are produced by the departments sponsoring Bills, their quality cannot be expected to be uniform either at any period or across all departments of the public service. Some of the earliest EMs, such as the one for the Surplus Revenue Bill 1908, would rate as high-quality for their time.⁽⁴⁴⁾ Anecdotal evidence suggests that during the early 1970s, for example, EMs were on the whole fairly uninformative. A turning-point may have occurred in the late 1980s–early 1990s. The Australian Taxation Office appears to have led the way in providing high-quality EMs, especially with the rewrite of the sales tax legislation in 1992.⁽⁴⁵⁾

However, there have been a number of occasions when parliamentary committees have complained about the quality of EMs. In June 1995, the House of Representatives Standing Committee on Procedure expressed its disappointment at the general standard of EMs, repeating an MP’s complaint that ‘a prose rendering of each provision of this bill, a mere jargonistic paraphrase, gives little understanding of the operation of these provisions’.⁽⁴⁶⁾

In 1999, the Senate Standing Committee for the Scrutiny of Bills stated that ‘a growing number of Explanatory Memoranda do not satisfactorily explain what is being proposed in a particular bill’.⁽⁴⁷⁾ On 25 June 2003, in presenting another report from the same committee, Senator Crossin said that ‘it seems, increasingly, that Explanatory Memoranda are failing to Explain’.⁽⁴⁸⁾ And on 24 March 2004, the Scrutiny of Bills Committee issued a report on The Quality of Explanatory Memoranda Accompanying Bills.⁽⁴⁹⁾ Although it recognised that some EMs were of high quality, it also noted an ‘ongoing problem with the poor quality of information’ in a number of EMs, and made recommendations for improvements. These were:

• consolidation of all information relevant to EMs, such as from Legislation Circulars and Office of Parliamentary Counsel Drafting Directions, into the Legislation Handbook
• checking of EMs by an appropriately qualified person before the introduction of a Bill, to ensure that the EM fully explains the Bill and complies with the amended Legislation Handbook
• consideration of development of a training course for those who prepare EMs, and
• Senate guidelines to assist senators in the preparation of private Bills.⁽⁵⁰⁾

The Government response to this report was stated to be still under consideration as at 9 December 2004.⁽⁵¹⁾

In September 2006, the Senate Foreign Affairs, Defence and Trade Legislation Committee made a strong recommendation ‘that the government take steps to ensure that explanatory memoranda provide members of parliament with the information necessary to be able to make informed decisions about the legislation before them.’⁽⁵²⁾

The final word on the quality of EMs should go to the Scrutiny of Bills Committee:

The transparency of the legislative process, the quality of legislation and the ability of people to read and understand the laws passed by the Parliament will all be improved if the standard of explanatory material is improved.⁽⁵³⁾

Other sources for research on Bills

Another source for research on the history of Bills—although not a source covered by the Acts Interpretation Act—is the original government file on almost every Bill passed since 1901. These files were produced by the Attorney-General’s Department from 1901 to 1970, and since then have been produced by the Office of Parliamentary Counsel, which was established by the Parliamentary Counsel Act 1970. The files occupy 448 metres of shelf-space at the National Archives and contain ‘manuscript drafts, proof and final copies (with manuscript amendments) of Bills as at their first and subsequent readings, and correspondence directing the preparation of them’.⁽⁵⁴⁾ Although there are gaps in the early years, one can find equivalents to EMs, such as a draft EM for the Judiciary Bill 1905, along with what appear to be Robert Garran’s annotations.⁽⁵⁵⁾

A source for analysis of Bills is the Bills Digests, which have been produced by the Parliamentary Library since 1977. The digests are produced to help parliamentarians debate the Bill. They contain background on the policy and events behind the Bill, as well as detailed discussion of the main provisions. They reflect the Bill as introduced and do not canvass subsequent amendments, nor do they have any official legal status. Comprehensive coverage of government Bills began in 1993. Digests have also been produced for significant private members’ or senators’ Bills, but this is not done as a matter of course. The digests are available at various libraries, and are online from August 1990.⁽⁵⁶⁾ There is at present no online index of digests published from 1977–90, but an index should be made available by the end of this year.

More general information on Bills is contained in the Bills Lists published by both the Senate and the House of Representatives. The Senate Bills List contains brief descriptions of the purpose of Bills, the date they were introduced and passed by either house of Parliament, referral to parliamentary committees, amendments, the resolution of disagreements between the Senate and the House of Representatives, assent dates and Act numbers, as well as details of changes to Bill titles. The Senate list is updated at the end of each sitting period, with an interim Daily Bills Update as well. The House of Representatives Daily Bills List contains principally the dates of introduction and passing, with separate listings of House and Senate Bills. Both lists are available on the Parliament’s website from 1996.⁽⁵⁷⁾

Online sources for Explanatory Memoranda

ScalePlus, ComLaw and BillsNet, 1996–present

It is well known that EMs from 1996 have been available online in the ScalePlus database, maintained by the Attorney-General’s Department.⁽⁵⁸⁾ Users should remember that EMs are entered in the database in the year in which the related Bill is introduced, which may not be the same year as when the Bill is passed. These EMs have also been migrated to the new ComLaw web site—which is to replace ScalePlus—during 2005, and are available there as attachments, once one has browsed to the appropriate Bill.⁽⁵⁹⁾

A parallel source to ScalePlus/ComLaw is the BillsNet service from Parliament’s web site, which also provides bills online.⁽⁶⁰⁾ The Old Bills database within BillsNet contains both Bills and EMs from 1996. The fastest way to access EMs through this database is to browse ‘Old Bills’, then select the title of the Bill; the EM appears as an option along with the text of the Bill, the Parliamentary Library’s Bills Digest and the second reading speeches.⁽⁶¹⁾

Other web sites, 1936–present

A less well-known site for EMs is the Australian Taxation Office’s Legal Database, which has an ‘Extrinsic Materials’ subset dating back to 1936.⁽⁶²⁾ Although the earlier years include materials relating almost solely to income tax Bills, there is a surprisingly wide range of material in later years: 1991, for example, includes material relating to data-matching, political broadcasts, the Medicare levy, superannuation, petroleum resource rent, income tax, fringe benefits tax and the wool tax.

There are also a couple of EMs, relating to the unsuccessful 1985 and 1988 Bills of Rights, on the Parliamentary Library web site.⁽⁶³⁾

Rather than maintain a set of bookmarks or links to all these web sites in one’s internet browser, a good alternative is to simply keep a link to the National Library of Australia’s GovPubs database.⁽⁶⁴⁾ GovPubs is a mini web site that presents the history and availability of the following types of parliamentary and legal publications: Bills, EMs, Acts, Regulations, budget papers, Hansards, notice papers, gazettes, votes and proceedings/journals, government directories and parliamentary handbooks. It is a very useful library of concise data and internet addresses for legal researchers.

Explanatory Statements to Commonwealth Regulations

The importance of Explanatory Statements to Regulations has been growing in recent years, and has fully come of age with the passing of the Legislative Instruments Act 2003. Explanatory Statements are to Commonwealth Regulations what EMs are to Bills. In other words, they fulfil exactly the same function. The different terminology serves merely to distinguish them from EMs.

The early history of Explanatory Statements is just as shrouded in mystery as the history of EMs. They are also far more difficult to locate.

The story begins with the establishment of the Senate Standing Committee on Regulations and Ordinances in March 1932. This Committee, the oldest Senate committee apart from the in-house committees such as the Standing Orders Committee or the Library Committee, was established in response to concerns about the volume of Regulations being laid before Parliament. Advocates of the change had compared the figure of 3708 pages of Acts for the period 1901–27 with the figure of 11 263 pages of Regulations for the same period.⁽⁶⁵⁾

The first recommendation for a standing committee was made in April 1930. A second proposal was made in July 1930,⁽⁶⁶⁾ the necessary changes to the Standing Orders were drafted by July 1931,⁽⁶⁷⁾ and were approved by the Senate on 4 March 1932, with the new Committee appointed on 17 March 1932.⁽⁶⁸⁾ Contrast the success of this proposal with the fate of the companion proposal in 1930 to establish a Senate Standing Committee on External Affairs: this did not come to fruition until 1970–71, an indication of the greater importance given to parliamentary oversight of Regulations.

Not until the appointment of this Committee had there been any effective scrutiny of the Executive Government’s regulation-making power. It is a vastly important area of responsibility and the committee is most vigilant in watching that no use is made of the regulation-making power for matters which should be the subject of parliamentary enactment, and in the protection of personal liberties. It is fair to say that both Houses of Parliament are content to leave to this important committee the parliamentary surveillance of the Government’s regulation-making power.⁽⁶⁹⁾

From its beginning, the Regulations and Ordinances Committee has applied four criteria in assessing the validity of subordinate legislation:

• is delegated legislation in accordance with the parent statute?
• does it trespass unduly on personal rights and liberties?
• does it make rights unduly dependent on administrative decisions rather than judicial decisions?
• does it contain matters more appropriate for parliamentary enactment?

The availability of Explanatory Statements from government departments making Regulations, or the call for Explanatory Statements to be produced, has been a feature of this Committee’s history since 1932. In its Second Report, in 1933, the Regulations and Ordinances Committee commented:

Your Committee acknowledges the great assistance it has received from the practice, instituted last year, of the department concerned in the issue of a new or an amending regulation supplying an explanation of the effect of, or the changes worked by, such regulation.⁽⁷⁰⁾

Three years later, the Third Report repeated the statement:

The Committee again expresses its appreciation of the assistance which Departments generally have given it by the provision of explanatory statements accompanying regulations and ordinances.⁽⁷¹⁾

Again in 1938, the Fourth Report stated:

In the absence of direction as to procedure in considering the regulations and ordinances, the Committee has formulated its own procedure, which consists of obtaining from the public department responsible for the issue of a regulation or ordinance a full explanation of it, with the reasons for the making thereof. These explanations are considered by the Committee in conjunction with the regulation or ordinance under examination, and have been found helpful.⁽⁷²⁾

Later references to Explanatory Statements, which were also known as ‘departmental explanations’, make it clear that Explanatory Statements continued to be provided through the 1940s and 1950s, and even through to the 1980s.⁽⁷³⁾ One report includes the text of an Explanatory Statement:

The explanatory statement circulated by the Department of Air in relation to the regulations reads as follows:

The purpose of this amendment to Air Force Regulations is to provide adequate authority for the Air Board to make deductions from the pay of members of the R.A.A.F. for losses of public money or property or for damage to property occasioned by their neglect or misconduct. The amendment makes provision for delegation of the Air Board’s authority.⁽⁷⁴⁾

The first complaints by the Committee appear to have been raised in 1982, 50 years after the Committee—and the provision to it of Explanatory Statements—began:

In pursuing its work of examining delegated legislation on behalf of the Senate, the Committee is dependent upon Explanatory Statements, provided with the instruments, for the reasons for making the legislation, and the effects it might have, in the same way as the Senate itself is dependent upon Ministers’ Second Reading speeches and Explanatory Memoranda on parent legislation.

During the past year, the Committee has noted some deficiencies in the Statements, ranging from what the Committee regarded as inadequacies in stating the purpose of the instrument, […] through omissions of reasons for provisions […] to inadequate descriptions of features of provisions.

In view of the fact that matters of concern to the Committee, and the principles under which it operates, are well understood to those involved in the preparation of delegated legislation, it appears to the Committee that more comprehensive and detailed statements, where appropriate, would assist it in its operations, thereby lessening the burden on both the Committee and Ministers.⁽⁷⁵⁾

These concerns about quality were raised again in 1984, 1986, and at some length in 1988, when a whole chapter was devoted to ‘A request for better explanatory statements’.⁽⁷⁶⁾

This history is presented at some length here in order to demonstrate that Explanatory Statements to subordinate legislation have always been a creature of the Senate Regulations and Ordinances Committee and have been very much a working instrument for the Committee. This may explain why they are so difficult to obtain.

For the period before 1982, there is currently no access at all to Explanatory Statements, simply because no-one knows where they are. Being as brief perhaps as one to three paragraphs, they appear not to have been tabled in Parliament until the 1970s or possibly as late as the mid-1980s and so, apparently, are not preserved in the Senate Table Office archives.

This leaves two possible sources: the files of the departments that created the Regulations, or the files of the Regulations and Ordinances Committee. Few people would know where to start when seeking a departmental file on the creation of a particular Regulation. The files of the Regulations and Ordinances Committee 1932–88, however, comprise nearly six metres of shelf-space at the National Archives, which would be a more manageable research target—if the files were open for research. Since they are Class A parliamentary records, however, they are exempt from the normal 30-year rule applying to government archives, and permission to access them must currently be sought from the President of the Senate.⁽⁷⁷⁾ Further research will reveal whether these files are a useful source for Explanatory Statements, and whether they can be made more easily accessible.

To complicate matters further, the Legislation Handbook (1975) indicates that an Explanatory Memorandum—single-spaced—was presented to the Executive Council with proposed new Regulations, while an Explanatory Statement—double-spaced—was sent to the Parliament.⁽⁷⁸⁾ Again, only further research will reveal if the two types of documents contained differences.

A bound set of Explanatory Statements for the period 1982–90 is held by the Attorney-General’s Department Library. There are restrictions on the copying and loan of this material, but the National Library of Australia microfilmed it in 2005, and holds it as mfm N 563. Most of the Explanatory Statements from 1991 onwards are available online in ScalePlus/ComLaw.⁽⁷⁹⁾

From 1 January 2005, with the establishment of the Federal Register of Legislative Instruments under the Legislative Instruments Act, Explanatory Statements have fully matured into documents not only for parliamentary use, but for the use of the legal profession and the wider public. They are now compulsory for all subordinate legislation, and will be placed online with the legislation itself.⁽⁸⁰⁾ Not only that, but there is now a legislative definition of Explanatory Statements, whereas there is none for EMs:

explanatory statement, in relation to a legislative instrument, means a statement that:
(a) is prepared by the rule-maker; and
(b) explains the purpose and operation of the instrument; and
(c) if any documents are incorporated in the instrument by reference—contains a description of the documents so incorporated and indicates how they may be obtained; and
(d) if consultation was undertaken under section 17 before the instrument was made—contains a description of the nature of that consultation; and
(e) if no such consultation was undertaken—explains why no such consultation was undertaken; and
(f) contains such other information as is prescribed.⁽⁸¹⁾

The requirement for a consultation statement (see paragraphs (d) and (e) of the definition) in particular represents a significant new explanatory element.

The status of Explanatory Statements for use as extrinsic aids to judicial interpretation was previously governed by paragraph 46(1)(a) of the Acts Interpretation Act. This provision stated that all Regulations and other instruments should be treated for interpretative purposes as if they were Acts. Thus, as long as Explanatory Statements were ‘laid before, or furnished to the members of, either House of the Parliament by a Minister before the time when the provision was enacted’—fulfilling the conditions of section 15AB of the Acts Interpretation Act—they were given similar status to EMs.

Although the 1984 amendments with which this paper began were designed primarily for EMs, the conditions applied by section 15AB (see p. 2) were probably fulfilled for Explanatory Statements from 1932, because they were ‘furnished to the members’ of Parliament from that date, or from the mid-1980s, when they apparently began to be ‘laid before’ Parliament. The 1984 amendments thus appear to have applied to Explanatory Statements as well as EMs from the time the amendments were passed.

Since 1 January 2005, section 46 of the Acts Interpretation Act has been replaced by paragraph 13(1)(a) of the Legislative Instruments Act. The previous provisions have been expressed in more modern language, and apply to all legislative instruments, including Regulations.

The Index to Explanatory Memoranda

Twenty years after the 1984 amendments to the Acts Interpretation Act with which this paper began, it is timely that an index to pre-1983 EMs should at last be made available. The online Index to Explanatory Memoranda (http://www.aph.gov.au/library/pubs/explanmem) contains the data necessary to know whether an EM or a CM was produced for any Bill between 1901 and 1982, as well as its date, the number of pages, notes (such as the full title and whether different versions were produced), and its location in the volumes of Bills held by various libraries. In a very few instances, there are also links to online copies of EMs. The Index contains instructions as to how to obtain copies, principally through the National Library. The Index is available to browse in HTML format, or download in Word, Excel or PDF format.

Appendix One: Example of a Comparative Memorandum

Figure 3: extract from a typical Comparative Memorandum: comparison of the Freedom of Information Bill 1978 with the Freedom of Information Bill 1981; deletions are in italics, additions are in bold

Appendix Two: Explanatory Memoranda in the states and territories

Although the states and territories are not the main concern of this Research Brief, this is a useful place to summarise research carried out by the author for the GovPubs database in 2002. The information below is available in the GovPubs database, but is set out below for easy reference.⁽⁸²⁾

ACT

From 1975 to 1981, a form of EM was attached to ‘Messages from the Minister [for the Capital Territory]’ and was included in the ACT Hansard. Since 1989, EMs have been issued as separate documents along with Bills. They are now known as Explanatory Statements (not to be confused with Explanatory Statements for Commonwealth subordinate legislation; see p. 17 above). They are available online from 2000, along with Explanatory Statements to subordinate laws (Regulations), disallowable instruments, notifiable instruments and exposure drafts of Bills.⁽⁸³⁾

New South Wales

Explanatory Notes have been issued for many, if not most, Bills since about 1964. Before that period, very brief Explanatory Notes were attached to Bills such as money Bills. One of the earliest occurrences found was for the Statute Law Revision Bill 1937. These Explanatory Notes have varied from a few paragraphs to a page in length, though from the 1980s they have become longer. From 1987, a separate annual volume of Explanatory Notes has been issued; before then, the Explanatory Notes were attached to the front of Bills. They are available online from 1990.⁽⁸⁴⁾

Northern Territory

Explanatory Statements have been produced since February 2005, and are available online immediately following the text of the Bill. For explanations of the objectives of pre-2005 Bills, see the Second Reading speech for each Bill in the Northern Territory Hansard.

Queensland

Explanatory Notes have been issued for Bills since 1990. Since 1992, they have also been published as a separate volume of the Queensland Acts. They are available online from November 1992.⁽⁸⁵⁾ For the period 1944 to 1989, the published Record of the Legislative Acts contains descriptions of the purposes of Acts as passed.

South Australia

EMs are not issued separately for Bills. However, since October 1977, the last part of a minister’s second reading speech, giving a clause-by clause explanation of a Bill, has been subtitled “Explanation of Clauses”. See the second reading speech for each Bill in the South Australian Hansard.

Tasmania

There is no formal system for providing EMs in Tasmania. As late as the 1990s, the provision of explanatory material on Bills was very rare. Since then, however, it has become more common to circulate Clause Notes or fact sheets to members of Parliament and the press, on an ad hoc basis. These are not formally published with the Bills. For explanations of the objectives of Bills, see the Second Reading speech for each Bill in the Tasmanian Hansard.

Victoria

Documents entitled ‘Notes on Clauses’, ‘Explanatory Memoranda’, or ‘Explanatory Notes’ have been issued for Legislative Assembly Bills since about 1971, and for some Legislative Council Bills since about 1983. In the early years these titles were used almost interchangeably. Since 2000, EMs for Bills that have been passed are included in the annual volumes of Acts, before the text of the Act itself. They are available online from 2001.⁽⁸⁶⁾

Western Australia

EMs began to be issued for Bills in about 1997. They are available online from about 2001.⁽⁸⁷⁾ For explanations of the objectives of earlier Bills, see the second reading speech for each Bill in the Western Australian Hansard.

Endnotes

1. Acts Interpretation Act 1901, paragraph 15AB(2)(e).
2. The Index is published at http://www.aph.gov.au/library/pubs/explanmem.
3. Sir Thomas Erskine May, A Treatise on the Law, Privileges, Proceedings and Usage of Parliament, ninth edition, London, Butterworths, 1883, pp. 541–2.
4. United Kingdom, House of Commons, Debates, third series, vol. 260, col. 423–4, 31 March 1881.
5. Erskine May, loc. cit.
6. Senator George Pearce, ‘Second reading speech: Copyright Bill 1905’, Senate and House of Representatives, Debates, 30 August 1905, p. 1642.
7. Senator Henry Dobson, ibid., p. 1646.
8. Senator John Keating, Minister for Home Affairs, ‘Committee stage: Copyright Bill 1905’, Senate and House of Representatives, Debates, 30 August 1905, p. 1651.
9. Senator Sir Josiah Symon, ‘Committee stage: Copyright Bill 1905’, Senate and House of Representatives, Debates, 13 September 1905, p. 2151.
10. Explanatory Memorandum (Senate version), Copyright Bill 1905, http://www.aph.gov.au/library/pubs/explanmem/docs/1905CopyrightSen.pdf (512 KB).
11. Explanatory Memorandum (House of Representatives version), Copyright Bill 1905, http://www.aph.gov.au/library/pubs/explanmem/docs/1905CopyrightHR.pdf (505 KB).
12. The other EMs were for the following Bills: Marine Insurance Bill 1907, Bills of Exchange Bill 1909 and Bankruptcy Bill 1924.
13. Senator John Keating, ‘Second reading speech: Commonwealth Electoral Bill 1905’, Senate and House of Representatives, Debates, 14 September 1905, p. 2274.
14. ibid., p. 2284.
15. Explanatory Memorandum (Senate version), Commonwealth Electoral Bill 1905, http://www.aph.gov.au/library/pubs/explanmem/docs/1905ElectoralSen.pdf (661 KB).
16. Explanatory Memorandum (House of Representatives version), Commonwealth Electoral Bill 1905, http://www.aph.gov.au/library/pubs/explanmem/docs/1905ElectoralHR.pdf (1 MB).
17. Explanatory Memorandum (annotated Senate version), Electoral Bill 1905, http://www.aph.gov.au/library/pubs/explanmem/docs/1905ElectoralSenAnnotated.pdf (504 KB); source: National Archives of Australia A2863, 1905/29 Part 1. Published by permission of the Attorney-General’s Department.
18. Draft Explanatory Memorandum, Electoral Bill 1905, http://www.aph.gov.au/library/pubs/explanmem/docs/1905Electoraldraft.pdf (468 KB); source: National Archives of Australia A2863, 1905/29 Part 1. Published by permission of the Attorney-General’s Department.
19. As well as the text of the Bill and the EM, the usual aids to parliamentary scrutiny of proposed legislation are the second reading speech about the Bill, and the Parliamentary Library’s Bills Digest.
20. Hon. Alfred Deakin, Attorney-General, ‘Second reading speech: Judiciary Bill 1903’, Senate and House of Representatives, Debates, 9 June 1903, p. 588.
21. Senator John Keating, Minister for Home Affairs, ‘Second reading speech: Commonwealth Electoral Bill 1905’, Senate and House of Representatives, Debates, 14 September 1905, p. 2284.
22. The change occurred as a result of Drafting Instruction No. 1 of 1973, ‘New practices with respect to the form of legislation’, issued by the Office of Parliamentary Counsel. Among other things, this instruction required a table of contents for Bills containing 25 clauses or more. A table of contents has been required for all Bills since 1995.
23. The latest example that has been identified is the Life Insurance Bill 1945. For the reprint, see for example, the Bills of Exchange Act 1909–1973 in Acts of the Parliament 1901–1973, vol. 2, at pp. 258–9.
24. Comparative Memorandum, Commonwealth Electoral Bill 1909 (No. 2), http://www.aph.gov.au/library/pubs/explanmem/docs/1909ElectoralHR.pdf (10.8 MB).
25. Justice Kirby used the term as long ago as 1983: Attorney-General’s Department, Symposium on statutory interpretation, Australian Government Publishing Service, Canberra, 1983, p. 56. See Appendix One for an example of the content of a CM.
26. J. H. Catts, ‘Second reading speech: Electoral Bill 1909 (No. 2)’, Senate and House of Representatives, Debates, 29 October 1909, p. 5179.
27. Later CMs include those for the Sex Discrimination Bill 1983 (‘Memorandum showing the changes proposed to be made to the Sex Discrimination Bill 1983 by amendments to be moved on behalf of the Government’, Senate, 10 October 1983), National Crime Authority Bill 1983 (‘Memorandum showing the changes proposed to be made to the National Crime Authority Bill 1983 by amendments to be moved on behalf of the Government’, Senate, 28 May 1984), the Child Support (Assessment) Bill 1989 (‘Memorandum showing the Bill as introduced and as proposed to be amended by the Government’, House of Representatives, 16 August 1989), and the Privacy Amendment Bill 1989 (‘Memorandum showing the Bill as introduced and as proposed to be amended by the Government’, Senate, 17 November 1989).
28. Explanatory Memorandum, Land Tax Assessment Bill 1909, http://www.aph.gov.au/library/pubs/explanmem/docs/1909LandTaxHR.pdf (414 KB). This Bill also holds a place among the arcana of parliamentary history, since it was introduced as the ‘Privilege Bill’ for the 1909 session of Parliament: a Bill presented to assert the right of the Parliament to deliberate without reference to the immediate cause of summons (I. C. Harris (ed), House of Representatives Practice, fourth edition, Canberra, Department of the House of Representatives, 2001, p. 218). These Bills are traditionally not dealt with during the remainder of the session, and so the subject of land tax was not considered again until August 1910, eventually resulting in the Land Tax Assessment Act 1910, which remained on the statute books until 1953.
29. Edward Theodore, ‘Second reading speech: Income Tax Assessment Bill 1930’, Senate and House of Representatives, Debates, 4 July 1930, pp. 3723–4.
30. The other Bills were: Conciliation and Arbitration Amendment Bill (No. 2) 1981, Offences against the Parliament Bill 1981 and Constitution Alteration (Fixed Term Parliaments) Bill 1982.
31. Legislation Handbook, Australian Public Service Board, Canberra, [1975], p. 91.
32. The later editions are: 1983, 1988, 1999, 1999 with 2000 update.
33. Legislation Handbook, Australian Government Publishing Service, Canberra, 1980, p. 18.
34. Published as: Attorney-General’s Department, Another Look at Statutory Interpretation, Australian Government Publishing Service, Canberra, 1982.
35. The discussion paper was: Attorney-General’s Department, Extrinsic Aids to Statutory Interpretation, Canberra, Australian Government Publishing Service, 1982. See also Senator the Hon. F. Chaney, Minister for Social Security, ‘Paper and Ministerial Statement: Extrinsic Aids to Statutory Interpretation’, Senate, Debates, 14 October 1982, pp. 1483–5.
36. Attorney-General’s Department, Symposium on Statutory Interpretation, Australian Government Publishing Service, Canberra, 1983.
37. See the Introduction to this Research Brief for the relevant text.
38. Legislation Handbook, second edition, Australian Government Publishing Service, Canberra, 1983, p. 31.
39. ibid, p. 32.
40. The three Bills were: Racial Discrimination Amendment Bill 1983 (introduced in response to a High Court decision), Public Accounts Committee Amendment Bill 1983 (arguably not a government Bill but a parliamentary Bill, increasing the number of members on the Committee), and Christmas Island Agreement Amendment Bill 1983.
41. Legislation Handbook, fourth edition, Department of the Prime Minister and Cabinet, Canberra, 1999 (with 2000 update), http://www.pmc.gov.au/guidelines/docs/legislation_handbook.pdf, accessed on 29 April 2005, p. 38.
42. The provision relating to EMs was first added to standing order 215 on 10 February 1994, amended on 22 February 1994, renumbered as standing order 217 on 1 May 1996, and again renumbered as standing order 142, with slight revisions, from 16 November 2004.
43. The changes were suggested in House of Representatives Standing Committee on Procedure, Maintenance of the standing and sessional orders: First Report, March 2006.
44. Explanatory Memorandum, Surplus Revenue Bill 1908, http://www.aph.gov.au/library/pubs/explanmem/docs/1908SurplusRevenueSen.pdf (312 KB).
45. These statements are based on the recollections of Adrian van Wierst, formerly of the Office of Parliamentary Counsel. The sales tax EMs were said to be ‘of a very high standard and [dealing] with the most complex of matters in an understandable way’; Senator Cheryl Kernot, ‘Second reading speech: Sales Tax Assessment Bill 1992’, Senate, Debates, 14 September 1992, p. 823.
46. House of Representatives Standing Committee on Procedure, Time for Review: Bills, Questions and Working Hours, June 1995, p. 6, quoting Michael Wooldridge, ‘Second reading debate: National Health Amendment Bill 1995’, House of Representatives, Debates, 30 March 1995, p. 2551.
47. Senate Standing Committee for the Scrutiny of Bills, Twenty-first Report of 1999, 9 December 1999, http://www.aph.gov.au/senate/committee/scrutiny/bills/1999/b21.htm, accessed on 29 April 2005.
48. Senator T. Crossin, ‘Speech: Scrutiny of Bills Committee Report’, Senate, Debates, 25 June 2003, p. 21 532.
49. Senate Standing Committee for the Scrutiny of Bills, Third Report of 2004: The Quality of Explanatory Memoranda Accompanying Bills, 24 March 2004, http://www.aph.gov.au/Senate/committee/scrutiny/bills/2004/b03.pdf, accessed on 29 April 2005.
50. ibid, pp. vii, 70.
51. Senator Robert Hill, Leader of the Government in the Senate, ‘Reports: Government Responses’, Senate, Debates, 9 December 2004, p. 94.
52. Senate Foreign Affairs, Defence and Trade Legislation Committee, Export Finance and Insurance Corporation Amendment Bill 2006, Canberra, September 2006. p. 13
53. Senator T. Crossin, loc. cit.
54. National Archives of Australia, Series Notes for Series A2863, from the RecordSearch database, http://www.naa.gov.au/the_collection/recordsearch.html, accessed on 29 April 2005.
55. Draft Explanatory Memorandum, Judiciary Bill 1905, http://www.aph.gov.au/library/pubs/explanmem/docs/1905Judiciary.pdf (296 KB); source: National Archives of Australia A2863, 1905/32. Published by permission of the Attorney-General’s Department.
56. See http://www.aph.gov.au/library/pubs/bd/index.htm.
57. See http://www.aph.gov.au/bills/index.htm. Bills Lists for previous calendar years are listed under ‘Old Bills Lists’.
58. See http://scaleplus.law.gov.au/html/ems/browse/TOC.htm, accessed on 29 April 2005. The memorandum for the Trade Practices Bill 1974 is also available.
59. ComLaw (http://www.comlaw.gov.au/) was launched on 1 January 2005.
60. http://www.aph.gov.au/bills/index.htm, accessed on 29 April 2005.
61. Readers should be wary of assuming that the Bill text in this database is the first reading print: the version available is always the latest version to have been before the Parliament, which means that for Bills that were passed, the version available is equivalent to the Act. For first-reading prints of Bills, the ScalePlus or ComLaw databases should be used.
62. http://law.ato.gov.au/atolaw/browse.htm?toc=02:EXT, accessed on 29 April 2005.
63. http://www.aph.gov.au/library/intguide/law/civlaw.htm#bill, accessed on 29 April 2005.
64. http://www.nla.gov.au/govpubs/, accessed on 29 April 2005. Here, click on ‘Search’, select ‘Explanatory Memoranda’ from the drop-down box, click on ‘Find’, and the complete range of resources is set out.
65. Senate, Select Committee ... upon the Advisability or Otherwise of Establishing Standing Committees of the Senate upon Statutory Rules and Ordinances, etc., Report, 9 April 1930, p. ix.
66. Senate, Select Committee ... upon the Advisability or Otherwise of Establishing Standing Committees of the Senate upon Statutory Rules and Ordinances, etc., Second Report, 10 July 1930.
67. Senate, Standing Orders Committee, First Report: Proposed New Standing Orders and Amendments of Existing Standing Orders, 24 July 1931.
68. Originally operating under Senate standing order 36A, the Regulations and Ordinances Committee now operates under standing order 23.
69. J. R. Odgers, Australian Senate Practice, sixth edition, Royal Australian Division of Public Administration (ACT Division), Canberra, 1991, p. 732.
70. Senate, Standing Committee on Regulations and Ordinances, Second Report, 8 December 1933, p. 1.
71. Senate, Standing Committee on Regulations and Ordinances, Third Report, 31 October 1935, p. 4.
72. Senate, Standing Committee on Regulations and Ordinances, Fourth Report, 23 June 1938, pp. 1–2.
73. Senate, Standing Committee on Regulations and Ordinances, Sixth Report, 29 April 1947, p. 2; Eighth Report, 29 May 1952, p. 2; Sixteenth Report, 11 May 1960, p. 3; Twenty-sixth Report, 23 September 1969, p. 1.
74. Senate, Standing Committee on Regulations and Ordinances, Tenth Report, 22 May 1956, p. 3, referring to Statutory Rules 1955, No. 92.
75. Senate, Standing Committee on Regulations and Ordinances, Seventy-first Report, 11 March 1982, pp. 16–17.
76. Senate, Standing Committee on Regulations and Ordinances, Seventy-fifth Report, September 1984, p. 16; Eightieth Report, October 1986, p. 30; Eighty-third Report, April 1988, pp. 18–27.
77. Archives Act 1983, subsection 31(5), as inserted by the Archives (Records of the Parliament) Regulations 1995, schedule, item 9.6.
78. Legislation Handbook, Australian Public Service Board, Canberra, [1975], pp. 122–3.
79. See http://scaleplus.law.gov.au/html/ess/browse/TOCN.htm, accessed on 29 April 2005. On ComLaw, the Explanatory Statements are available as attachments once one has browsed to the relevant legislative instrument.
80. See especially Legislative Instruments Act 2003, sections 20 and 26. The Federal Register of Legislative Instruments is available at http://www.frli.gov.au, or from within the ComLaw web site.
81. Legislative Instruments Act 2003, section 4.
82. For the online versions, see http://www.nla.gov.au/govpubs, select ‘Browse by Publication’, then ‘Explanatory Memoranda’.
83. See http://www.legislation.act.gov.au/es/default.asp.
84. See http://www.legislation.nsw.gov.au/maintop/scanact/sessional/NONE/0.
85. See http://www.legislation.qld.gov.au/Bills.htm.
86. See http://www.dms.dpc.vic.gov.au/domino/web_notes/LDMS/pubhome.nsf/ under the headings ‘Parliamentary Documents—Bills’.
87. See http://www.parliament.wa.gov.au/ under the heading ‘Bills’.

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