Bills Digest no. 70 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.
Diane Spooner
Law and Bills Digest Section
10 February 2015
Contents
Structure and Purpose of the Bill
Committee consideration
Policy position of non-government parties/independents
Financial implications
Statement of Compatibility with Human Rights
Background
The 2008 recommendations and amendments in response
Other provisions
Schedule 2 — Machinery of government changes
Appendix A
Date introduced: 22 October 2014
House: Representatives
Portfolio: Attorney-General
Commencement: On Proclamation, or one day after 12 months from Royal Assent, whichever comes first.
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 ComLaw website.
The Bill has three Schedules dealing with Acts, legislative instruments and notifiable instruments, machinery of government changes, and updating references to instruments respectively. According to the Senate Bills list:
It amends the:
Legislative Instruments Act 2003 to: amend the short title of the Act to the Legislation Act 2003 to reflect the consolidation of the legislative frameworks of the publication of Commonwealth Acts and the registration of Commonwealth instruments; clarify the definitions of ‘legislative instrument‘ and ‘legislative character‘; provide that certain instruments are notifiable instruments which are registrable but not subject to parliamentary scrutiny or sunsetting; establish the Federal Register of Legislation; and allow the First Parliamentary Counsel to make editorial changes to Acts and instruments in the Register;
Acts Interpretation Act 1901 to: clarify references to ministers, departments and other government authorities; and confirm the continued validity of the exercise of powers, functions and duties under Commonwealth agreements following machinery of government changes. Also consequentially repeals four Acts and amends 51 Acts.[1]
Legal and Constitutional Affairs Legislation Committee
The Bill was referred to the Senate Legal and Constitutional Affairs Committee (the Committee) for inquiry and it reported on the provisions of the Bill on 2 December 2014.[2] The Committee recommended that the Bill be passed, subject to one amendment that would enable a review of this Bill (once enacted) five years after commencement. This is in similar terms to a review was statutorily mandated for the LIA.[3] The Bill passed the House of Representatives on the same day as the Report was tabled, but no amendments were moved by the Government in that Chamber on that day.
Senate Standing Committee for the Scrutiny of Bills
The Senate Standing Committee for the Scrutiny of Bills draws the Senate’s attention to several provisions pending the Attorney-General providing further advice, on the grounds that they may be considered to insufficiently subject the exercise of legislative power to Parliamentary scrutiny. In particular the Committee seeks the Attorney-General’s advice as to the proposed scope of the First Parliamentary Counsel’s power to make editorial changes to registered legislation.[4]
Policy position of non-government parties/independents
The Australian Labor Party supported the Bill in the House of Representatives. The Shadow Attorney-General, Mr Dreyfus made minor comments on one aspect of the Bill, namely the new power of the First Parliamentary Counsel to make corrections and minor editorial changes, and to make rules relating to the Federal Register of Legislative Instruments (to be known as the Federal Register of Legislation).[5]
Financial implications
According to the Explanatory Memorandum, the Bill will have nil or insignificant financial impact on government departments or agencies.[6]
The Government has, as required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Act. The Government considers that the Bill is compatible.[7]
The Parliamentary Joint Committee on Human Rights considers that the Bill is compatible with human rights.[8]
The Bill amends the Legislative Instruments Act 2003 (the LIA) which provides for the making, registration, publication, and parliamentary scrutiny of Commonwealth delegated legislation.[9]
In his second reading speech, the Minister for Justice, Mr Keenan, referred to the 2008 Review[10] of the LIA and said:
The review found that the Legislative Instruments Act had been largely successful in improving public access and facilitating parliamentary scrutiny of legislative instruments. It also found that a number of improvements could be made to the scheme and released a number of recommendations.[11]
This Bill implements a number of the recommendations of the 2008 Review, and this Digest will concentrate on the main recommendations that relate to amending the LIA.
The review by the Legislative Instruments Act Review Committee (the review) made 46 recommendations, some of which went directly to amending the LIA. Some examples of these are:
- The definition of legislative instrument in the LIA be amended to remove the circularity in paragraph 5(1)(a) of the definition and to clarify the operation of paragraph 5(2)(a) referring to instruments that apply the law to a particular case (Recommendation 4).[12] This recommendation is addressed by Schedule 1 Part 1 item 12 of the Bill which repeals and substitutes sections 4 to 12 of the LIA with new sections 4 to 12. In particular new section 8 clarifies the meaning of ‘legislative instrument’ in terms that will remove the current perceived circularity of the definition by clearly setting out when an instrument is a legislative instrument. For example, new paragraph 8(4)(b) in brief says an instrument will be a legislative instrument if any of its provisions determines the law or alters the content of the law, rather than determining the particular circumstances in which the law is to apply.
- The power conferred on the Attorney-General by section 10 of the LIA to issue a certificate as to whether an instrument is or is not a legislative instrument, be repealed (Recommendation 6). Section 10 is repealed by item 12 noted above and is not replaced. The rationale for this change is that the power had never been used, and explicitly declaring in enabling legislation whether or not an instrument is legislative is more certain and effective.[13]
- Subsection 12(2) of the LIA be amended to provide that an instrument applying retrospectively is of no effect to the extent only that it retrospectively disadvantages or places a liability on a person other than the Commonwealth (Recommendation 10). This recommendation is addressed in new subsection 12(2). Current subsection 12(2) provides that a retrospective legislative instrument has no effect if rights are adversely affected or liabilities are imposed. That is, under the existing provision ‘if one person is negatively affected by a retrospective provision or instrument, the provision or instrument would be ineffective in application to any person, both prospectively and retrospectively’.[14] The review considered that the application of subsection 12(2) can be unpredictable, as it can be difficult to identify in advance the persons affected, and also difficult to determine ‘whether those to whom the instrument applies will in practice be disadvantaged by a provision of general application intended to be beneficial.’[15] The Explanatory Memorandum says:
To address this problem, new subsection 12(2) provides that a provision of a legislative instrument or notifiable instrument will not apply to a person retrospectively to the extent that it would affect the person’s rights so as to disadvantage them or impose liabilities on them.[16]
This means that the prohibition against retrospectivity will apply to the extent only where there is retrospective disadvantage or imposition of liability, but would preserve the retrospective operation of the provision to the extent that it is beneficial.
- Recommendations 11 and 12 of the review are about expanding the range of instruments that are to be registered. These recommendations are addressed in part by new section 11, which inserts a new type of instrument, to be known as a ‘notifiable instrument’. The Explanatory Memorandum specifically refers to these recommendations and explains the new definition:
[Section 11] allows for the registration of a broader range of instruments in authoritative from (sic) in a single, central repository. This new category of notifiable instruments is intended to include instruments which are not appropriate to register as legislative instruments, but for which public accessibility is desirable.[17]
Notifiable instruments will include instruments currently required to be published in places such as the Gazette. Under the amendments, these instruments will be published on the register to reduce the number of different publication methods. The Explanatory Memorandum also explains that notifiable instruments are intended to be administrative in character (as distinct from legislative), and as is currently the case, not subject to parliamentary scrutiny or sunsetting.[18]
- Recommendation 31 of the review was to repeal subsection 18(2) of the LIA to avoid any perception that the examples it contains are exemptions from consultation. Item 35 repeals section 18 in its entirety.[19] Current section 17 has a general requirement for rule-makers to consult when formulating rules, and current section 18 sets out circumstances when consultation may be unnecessary or inappropriate. Some examples are where the instrument is of minor or machinery nature, or where an instrument is required because of an issue of national security.[20] By repealing section 18 entirely the perception that there are exemptions from the requirement to consult is removed.
Item 33 makes an amendment to section 17. Section 17 currently provides:
Before a rule-maker makes a legislative instrument, and particularly where the proposed instrument is likely to:
(a) have a direct, or a substantial indirect, effect on business; or
(b) restrict competition;
the rule-maker must be satisfied that any consultation that is considered by the rule-maker to be appropriate and that is reasonably practical be to undertaken, has been undertaken.
The amendment to this section by item 33 removes any reference to business and competition set out in (a) and (b). Interestingly this is in response to Recommendation 32 of the review which considered the reference to business and competition should be removed to avoid the perception that this was the only consideration relevant to consultation being required; or that consultation was only required for such instruments.[21]
Schedule 1 Part 2 item 26 inserts new Chapter 2 —Registration of Acts, legislative instruments and notifiable instruments into the LIA. Chapter 2 has three Parts, governing the Federal Register of Legislation, Compilations and Authorised versions and judicial notice respectively. This new Chapter will consolidate the requirements for the publication of Acts (which are currently contained in the Acts Publication Act 1905[22]) and the registration of legislative and notifiable instruments.
Currently, Part 4 of the LIA establishes the Federal Register of Legislative Instruments (FRLI), which contains legislative instruments and their explanatory statements (section 20). Part 4 is repealed by item 36 of Schedule 1 of the Bill. In place of FRLI, proposed section 15A in new Chapter 2 establishes the Federal Register of Legislation, which will contain Acts and notifiable instruments, in addition to legislative instruments. Due to the change in the LIA’s focus from legislative instruments to all Commonwealth legislation, item 3 of Schedule 1 changes the short title of the LIA to the Legislation Act 2003.
New section 15D makes provision about correction of errors in the Federal Register of Legislation and is substantially similar to current section 23 of the LIA, combined with section 8 of the Acts Publication Act, which deal with correction of errors in FRLI and the Acts database, respectively.[23] There is a requirement in the current and new provisions that if an error is corrected, the First Parliamentary Counsel must include a statement that a correction has been made and a brief outline of the correction in general terms.[24]
New section 15V makes provision about empowering the First Parliamentary Counsel to make editorial changes to any text that is part of an Act or instrument when preparing a compilation of that Act or instrument. Changes can be editorial changes (new subsection 15V(1) and (2)), or presentational changes (new subsection 15V(3) and (4)).[25] New subsection 15V(6) specifically states that a change must not change the effect of the Act or the instrument.
First Parliamentary Counsel is required to provide a brief outline of corrections made to the Federal Register of Legislation under new paragraph 15D(1)(b), and again under new 15P(1)(b) about editorial changes that have been made in preparing a compilation.
The Senate Committee addressed this issue, and the Attorney-General gave further and additional material to the Committee. The reader is referred to the Senate Committee report for the full discussion.[26]
Machinery of government refers to the structure of government and the allocation of government functions between ministers and departments. Machinery of government is also known as administrative arrangements as it describes a variety of organisational and structural aspects of government, most commonly the number and names of government departments and ministerial portfolios.
Machinery of government changes can include:
- establishing a new department or agency
- abolishing an existing department or agency
- changing the name of an existing department or agency
- moving certain functions between departments or agencies or
- amalgamating departments or agencies.
Such changes may take place where new administrative arrangements are necessary to administer new pieces of legislation or for new functions to be performed.
Currently under the Acts Interpretation Act 1902 (AIA) sections 19, 19A, 19B, 19BA, 19BAA, 19BB, 19BC, 19BD, 19C and 20 are about references to Ministers and Departments in provisions of Acts and how references determine, for example, which Minister administers a particular Act.[27] These provisions are to be repealed and substituted by Schedule 2 Part 1 item 3 to new sections 19 to 20.
The Explanatory Memorandum summarises the effect of the changes to the AIA made by Schedule 2.[28] In particular in the general outline of the Schedule the Explanatory Memorandum gives the following summary:
Schedule 2 amends the Acts Interpretation Act to expand and simplify the provisions dealing with machinery of government changes. The amendments broaden the rules used for interpreting references to Ministers and Departments in legislation, reducing the need to make substituted reference orders. Substituted reference orders are instruments that can be made to alter how specific references to Ministers, Departments and Secretaries of Departments in legislation are read.[29]
Section 5 of the LIA–Definition of ‘legislative instrument’
‘Legislative instrument’ is currently defined in section 5 of the LIA as follows:
(1) Subject to sections 6, 7 and 9, a legislative instrument is an instrument in writing:
(a) that is of a legislative character; and
(b) that is or was made in the exercise of a power delegated by the Parliament.
(2) Without limiting the generality of subsection (1), an instrument is taken to be of a legislative character if:
(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and
(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.
(3) An instrument that is registered is taken, by virtue of that registration and despite anything else in this Act, to be a legislative instrument.
(4) If some provisions of an instrument are of a legislative character and others are of an administrative character, the instrument is taken to be a legislative instrument for the purposes of this Act.
(1) Despite section 17, the nature of an instrument may be such that consultation may be unnecessary or inappropriate.
(2) The following are examples of instruments having a nature such that the rule‑maker may be satisfied that consultation is unnecessary or inappropriate:
(a) an instrument that is of a minor or machinery nature and that does not substantially alter existing arrangements; or
(b) an instrument that is required as a matter of urgency; or
(c) an instrument that gives effect, in terms announced in the Budget, to a decision:
(i) to repeal, impose or adjust a tax, fee or charge; or
(ii) to confer, revoke or alter an entitlement; or
(iii) to impose, revoke or alter an obligation; or
(d) an instrument that is required because of an issue of national security; or
(e) an instrument in relation to which appropriate consultation has already been undertaken by someone other than the rule‑maker; or
(f) an instrument that relates to employment; or
(g) an instrument that relates to the management of, or to the service of members of, the Australian Defence Force.
Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.
[1]. Senate Table Office, Bills List, as at cob 15 December 2014, (2014 Final Edition), accessed 9 February 2015.
[2]. Senate Legal and Constitutional Affairs Legislation Committee, Acts and Instruments (Framework Reform) Bill 2014 [Provisions], The Senate, 2 December 2014, pp. 15–19, accessed 9 February 2015.
[3]. Legislative Instruments Act 2003, section 59. Section 59 is being repealed in this Bill by item 83 of Schedule 1.
[4]. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 15 of 2014, The Senate, 19 November 2014, pp. 1–4, accessed 9 February 2015.
[5]. M Dreyfus, ‘Second reading speech: Acts and Instruments (Framework Reform) Bill 2014’, House of Representatives, Debates, 2 December 2014, p. 13892, accessed 9 February 2015.
[6]. Explanatory Memorandum, Acts and Instruments (Framework Reform) Bill 2014, p. 4, accessed 9 February 2015.
[7]. Ibid., pp. 5–7.
[8]. Parliamentary Joint Committee on Human Rights, Seventeenth report of the 44th Parliament, The Senate, Canberra, 2 December 2014, p. 2, accessed 9 February 2015.
[9]. Legislative Instruments Act 2003, accessed 9 February 2015.
[10]. Legislative Instruments Act Review Committee, 2008 Review of the Legislative Instruments Act 2003, Commonwealth of Australia, 2009, accessed 6 February 2015.
[11]. M Keenan, ‘Second reading speech: Acts and Instruments (Framework Reform) Bill 2014’, House of Representatives, Debates, 22 October 2014, p. 11666, accessed 6 February 2015.
[12]. The current text of section 5 of the LIA is set out at Appendix A of this Digest.
[13]. Legislative Instruments Act Review Committee, op. cit., p. 17.
[14]. Explanatory Memorandum, op. cit., p. 31
[15]. 2008 Review of the Legislative Instruments Act 2003, op. cit., paragraph 2.3, p. 20.
[16]. Explanatory Memorandum, op. cit., p. 31.
[17]. Ibid., p. 29.
[18]. Ibid.
[19]. The current text of section 18 of the LIA is set out at Appendix A of this Digest.
[20]. Paragraphs 18(2)(a) and (d) of the LIA respectively.
[21]. 2008 Review of the Legislative Instruments Act 2003, op. cit., p. 42.
[22]. Acts Publication Act 1905, accessed 9 February 2015.
[23]. Section 23 of the LIA will be repealed by item 36 of Schedule 1. The Acts Publication Act is repealed in its entirety by item 91 of Schedule 1.
[24]. New paragraph 15D(1)(b).
[25]. New section 15X provides a definition of ‘editorial change’.
[26]. Senate Legal and Constitutional Affairs Legislation Committee, Acts and Instruments (Framework Reform) Bill 2014 [Provisions], The Senate, 2 December 2014, pp. 15–19, accessed 9 February 2015.
[27]. Acts Interpretation Act 1901, accessed 9 February 2015.
[28]. Explanatory Memorandum, op. cit., pp. 86–99.
[29]. Ibid., p. 86.
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