Bills Digest no. 57 2014–15
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Kirsty Magarey
Law and Bills Digest Section
27 November 2014
Contents
Purpose of the Bill
Background
Committee consideration
Financial implications
Key issues and provisions
Concluding comments
Date introduced: 22 October 2014
House: House of Representatives
Portfolio: Attorney-General
Commencement: Sections 1 to 3 commence on Royal Assent. Schedule 1 commences 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 http://www.aph.gov.au/Parliamentary_Business/Bills_Legislation
When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.
The purpose of the Amending Acts 1970 to 1979 Repeal Bill 2014 (the Bill) is to repeal 656 amending and repeal Acts identified as redundant.[1]
The Bills digest to an earlier Bill, the Amending Acts 1901 to 1969 Repeal Bill 2014, gives the background to what has been treated as a package of amendments. [2] In summary this Bill functions as a legislative clean-up, or statute revision Bill, removing from the list of current Acts a series of Acts which amended or repealed on principal legislation. Since their operative effect is no longer relevant to the body of Australian laws they may be repealed without any significant consequence. The amendments or repeals have either taken effect on the principal Act, or the changes are no longer operative because the ‘head’ Act has been repealed. In either case, as the Explanatory Memorandum points out, none of the repeals to be effected by this Bill make any change to the substance of the law. [3] The Explanatory Memorandum also notes that:
If any application, saving or transitional provision is included in one of those Acts, any ongoing operation of the provision is preserved. [4]
Senate Standing Committee for Selection of Bills
The Senate Standing Committee for the Selection of Bills resolved not to refer the Bill to a committee.[5]
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[6]
Parliamentary Joint Committee on Human Rights
The Parliamentary Joint Committee on Human Rights expressed the view that the Bill is compatible with human rights.[7]
This reflected the Government’s Statement of Compatibility with Human Rights, which considered the Bill compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth).[8]
According to the Explanatory Memorandum, there are no financial implications for the Government. [9] However, in his second reading speech the Parliamentary Secretary to the Prime Minister, Mr Frydenberg, commented that there would be compliance cost savings of $100,000. [10] No details were provided on these costings.
There are arrangements in some Australian jurisdictions whereby amending Acts, such as the amending Acts being removed by this Bill, are automatically removed from the statute books. This happens once their purpose has been fulfilled. Both the ACT (section 89 (Automatic repeal of certain laws and provisions), Legislation Act 2001 (ACT)) and Queensland (section 22C (Automatic repeal of amending Act) Acts Interpretation Act 1954 (Qld)) have such legislative provisions.[11]
Another drafting practice which is used to ensure that ‘spent Acts’ do not remain on the statute books is the inclusion of specific clauses repealing the legislation in question once its purpose is complete (or once it cannot be completed). Thus, for instance, since 2007, Victoria includes in all amending Acts a provision (generally the last provision) which repeals the amending Act after a fixed period of time.[12]
The Victorian Scrutiny of Acts and Regulations Committee suggested this drafting approach on the basis that it would save the time and expense of having to repeal amending Acts in a statute law revision Bill.
The Commonwealth has automated the process of repealing or sunsetting legislative instruments (the Legislative Instruments Act 2003, Part 5A (Repeal of spent legislative instruments and provisions) and Part 6 (Sunsetting of legislative instruments)) but has yet to automate the process of removing spent amending Acts, hence the need for this Bill to remove legislation that has served its purpose and no longer has any legislative effect.[13]
Schedule 1 repeals 656 obsolete or redundant amending or repeal Acts.[14] The repealed Acts will continue to be accessible through the historical databases on Comlaw and other electronic legal sites.[15]
Subclause 3(2) provides that if an Act listed in Schedule 1 includes any application, saving or transitional provision, any ongoing operation of the provision is preserved.
Section 7 of the Acts Interpretation Act 1901 (Cth) provides that repealing an Act that repealed another Act (the original Act) does not revive anything that was in force in the original Act prior to the commencement of the repealing Act.[16]
The Bill is part of a process of legislative ‘housekeeping’ which is commonly engaged in by all jurisdictions which do not automate the process of repeal. It is unlikely to be controversial.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
[3]. Explanatory Memorandum, op. cit., p. 1.
[5]. Senate Standing Committee for Selection of Bills, Report No. 14 for 2014, The Senate, Canberra, 2014, accessed 24 November 2014.
[8]. Explanatory Memorandum, op. cit., p. 2.
[10]. Second reading speech, op. cit., p. 11603.
[11]. With respect to this paragraph and others on the topic I am indebted to the ACT Office of Parliamentary Counsel for sharing their internal working documents examining ‘Automatic Repeal’. These documents are available on request.
[14]. Explanatory Memorandum, op. cit., p. 1.
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