Posted 14/01/2022 by Cassie Davis
The Statute Law Amendment (Prescribed Forms) Bill 2021 (the Prescribed Forms Bill) was introduced to the Senate on 20 October 2021. According to the Explanatory Memorandum to the Bill, the purpose of the Prescribed Forms Bill is ‘to reduce the number of provisions on the statute book that require the use of forms that are prescribed by regulations’ and ‘enhance administration and promote consistency across the Commonwealth statute book’ (pp. 2–3).
Many Commonwealth Acts and subordinate instruments require specified information to be provided to the government (for example, under the Customs Act 1901), retained by the government (for example, under the Commonwealth Electoral Act 1918), published by the government (for example, under the National Health and Medical Research Council Act 1992), or notified by the government (for example, under the Australian Security Intelligence Organisation Act 1979) through a particular form.
As set out in the Explanatory Memorandum, it is important for some forms to have formatting and content requirements set out in an Act or Regulations, such as when:
- the form is for a warrant, summons, oath or affirmation or examination notice; or
- the context involves the courts, military discipline or the investigation of offences; or
- the form is under Corporations legislation, family law, Fair Work legislation, a Commonwealth-State scheme or legislation relying on a referral of power (p. 2).
However, having some forms prescribed in legislation or legislative instruments can be problematic because when even minor changes are needed to the forms, the legislation or legislative instrument needs to be changed first. This can be very inefficient, and as noted in the Explanatory Memorandum, to avoid this problem in modern legislation, careful consideration is given to whether a form actually needs to be prescribed by a legislative instrument or whether another approach might be preferable (p. 2).
The Explanatory Memorandum notes that legislation sometimes mandates that information be published on a particular website, in which case it would be important to be able to change the form of the information reasonably frequently and quickly (for example, to conform with changing web accessibility requirements and the Disability Discrimination Act 1992).
The Prescribed Forms Bill updates 41 Acts covering a variety of subjects, to make them more consistent with modern drafting approaches for forms. Several of the amendments enable identity cards to contain information prescribed by Regulations, rather than be in a prescribed form (see, for example, items 17, 37 and 109 of the Prescribed Forms Bill). There are also provisions dealing with informational notices required to be provided by the government, enabling these notices to be in any form as long as they include the required information (see, for example, items 10, 11 and 58).
The title and purpose of the Prescribed Forms Bill indicates that it belongs in the category of Statute Law Revision Bills. The first Statute Law Revision Bill was introduced and enacted in 1934, to ‘cut away the dead wood on the statute-book’. Successive governments have enacted Statute Law Revision Bills. The First Parliamentary Counsel, head of the Office of Parliamentary Council, has been given authority under the Legislation Act 2003 to make editorial changes that previously would have been made in Statute Law Revision Bills (see, in particular section 15V). However, the First Parliamentary Counsel must not make an alteration that changes the legal effect of the legislation (subsection 15V(6)).
The Explanatory Memorandum of the Prescribed Forms Bill states that ‘the amendments are minor in nature. The amendments either make no change or only minor changes to the substance of the law’ (p. 3). Because at least some of the otherwise minor amendments to this Bill will alter the substance of the law, it would not be appropriate for the First Parliamentary Counsel to use the editorial change power in section 15V of the Legislation Act 2003 (Cth) to effect the changes.
The Prescribed Forms Bill has been referred to the Senate Legal and Constitutional Affairs Committee. The proposal from Labor Senator Anne Urquhart to refer the Bill for inquiry stated that:
While the [Explanatory Memorandum] states that the changes made by this bill are largely technical in nature, the bill would make changes to dozens of significant and often complex Acts. It is important to fully understand the impact of any changes made to those statutory regimes, whether intended or not, and an enquiry will enable those with particular expertise to provide submissions to the Committee about those impacts.
The Legal and Constitutional Affairs Committee was due to report on the Prescribed Forms Bill on 11 February 2022 but, on 1 December 2021, the Committee’s reporting date was extended to 28 February 2022. The Committee is accepting submissions until 14 January 2022. Details of the inquiry are available at the inquiry homepage.