BILLS DIGEST NO. 16, 2017–18              14 August 2017

Statute Update (Winter 2017) Bill 2017

Claire Petrie
Law and Bills Digest Section 

Date introduced: 25 May 2017

House: House of Representatives

Portfolio: Attorney-General

Commencement: Sections 1 to 3 commence the day after Royal Assent. Schedule 1, Part 1 and Schedules 2 to 4 commence 28 days after Royal Assent. Schedule 1, Part 2 commences retrospectively on 1 July 2015—the commencement date of the Australian Border Force Act 2015.

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

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

All hyperlinks in this Bills Digest are correct as at August 2017.

Purpose of the Bill

The purpose of the Statute Update (Winter 2017) Bill 2017 (the Bill) is to correct technical errors and make other minor amendments to statutes, and to repeal spent and obsolete provisions and Acts. Many of the amendments do not affect the substance of the laws but are intended to enhance their clarity and accuracy. Some amendments make minor changes to the substance of the law.

Structure of the Bill

The Bill contains four schedules:

•       Schedule 1 amends technical errors and makes other minor amendments to 18 principal Acts

•       Schedule 2 makes amendments to six principal Acts consequential on the Acts and Instruments (Framework Reform) Act 2015 (Cth)

•       Schedule 3 repeals spent and obsolete provisions in five principal Acts and

•       Schedule 4 repeals four spent amending Acts.

Background

In his second reading speech for the Bill, Minister for the Environment and Energy, Josh Frydenberg, noted:

The process of correcting the statute book and repealing spent provisions and acts has been undertaken regularly since 1934.

…

These update bills are an essential tool in the process of keeping an orderly, accurate and up-to-date Commonwealth statute book.[1]

Statute law revision and statute update Bills are typically aimed at correcting technical errors in Commonwealth laws and cutting ‘dead wood’ from the statute book.[2] The main difference between statute law revision Bills and statute update Bills appears to be that statute law revision Bills are intended to contain measures that do not alter the substance of the law but rather make minor technical corrections of a purely formal nature.[3] In contrast, statute update Bills are intended to make minor changes to the substance and legal effect of the relevant provisions subject to amendment.[4]

Current Government policy indicates that the Office of Parliamentary Counsel ‘will prepare a Statute Law Revision Bill when time permits (usually once a year)’.[5] Although no specific guidance is provided in relation to statute update Bills, it might reasonably be assumed that a similar approach may be taken to their preparation.

In the previous Parliament, statute law revision Bills were introduced as part of a regular ‘Repeal Day’ package, primarily aimed at reducing regulatory red tape as part of the Government’s regulatory reform agenda. However, since 2016 repeal days have been replaced with ‘Annual Red Tape Reduction Reports’ which outline the Government’s progress in reducing regulation.[6]

First Parliamentary Counsel’s editorial powers

Some amendments that would previously have been made in Statute Law Revision Bills can now be made unilaterally by the First Parliamentary Counsel (FPC). Amendments to the Legislation Act 2003 (Cth) in 2015 conferred on the FPC the power to make editorial changes to the text of Acts and instruments, where the changes do not have substantive effect. Section 15V provides that when preparing a compilation of an Act, legislative instrument or notifiable instrument for registration on the Federal Register of Legislation, the FPC may make ‘editorial changes’ to any text that is part of the Act or instrument. An editorial change is defined to include a change which:

•       goes only to a matter of spelling, punctuation, grammar or syntax, or the use of conjunctives and disjunctives

•       updates a reference to a law, or to a person, body or other entity, office, position place, document or thing

•       numbers or renumbers a legislative provision

•       changes the way of referring to or expressing a number, year, date, time, amount of money or other amount, penalty, quantity, measurement or other matter, idea or concept

•       omits a provision, or reference to a law that has expired, or is spent or redundant

•       corrects an error—this extends to typographical and clerical errors; grammatical and spelling errors and errors of punctuation; errors in numbering, cross-referencing and alphabetical ordering; errors in references to laws or instruments; errors in or arising out of an amendment of an Act or instrument; and other errors of a similar nature.[7]

The FPC must not make a change that would alter the effect of an Act or instrument, and its editorial powers are to be used sparingly.[8] The FPC provides a running record of all editorial changes made using this power, with a report finalised every six months and statistical data provided in OPC’s annual reports.[9] In evidence provided to an inquiry by the Senate Legal and Constitutional Affairs Committee into the 2015 amendments, the Attorney-General George Brandis stated that the FPC’s power was intended to be exercised with ‘due conservatism’.[10]

FPC changes or Statute Law Revision Bill?

The Office of Parliamentary Counsel is responsible for determining the best approach for making corrections to errors detected in legislation. Drafting Direction No. 4.4—Changes using FPC’s editorial powers and statute law revision amendments, sets out the process for making the changes, with the FPC to decide whether, on recommendation from the designated drafter, the change should be made:

•       by an amendment in a Statute Law Revision Bill (or Statute Law Revision Regulation)

•       by an amendment in another kind of Bill or instrument or

•       using FPC’s editorial power.[11]

However, as noted in the digest for the Statute Law Revision (Spring 2016) Bill 2016, the basis on which one of these approaches is favoured over another can in some circumstances be unclear:

It is evident that statute law revision legislation and FPC’s editorial change powers under the Legislation Act can cover the same type of subject matter … it is not entirely clear when one of these mechanisms will be applied (or ought to be applied) in preference to the other.[12]

The amendments contained in the current Bill are, to a large extent, the types of ‘statute law revision’ changes which would fall within the scope of the FPC’s editorial powers. The Explanatory Memorandum does not provide guidance as to why a Bill containing statute law revision measures has been preferred as the mechanism for making these changes. One possible explanation is that the FPC may have determined to take a conservative approach to the exercise of editorial powers, at least while they are relatively new, in order to maintain a degree of Parliamentary involvement in the making of statute law revision type amendments. Using the editorial power in a more limited way than its full legislative extent may help to provide further assurance to the Parliament and the public about the appropriate use of the editorial power. It is also possible that there might be an intention to make a gradual transition from the use of primary legislation towards the editorial power.

Committee consideration

Senate Standing Committee for Selection of Bills

The Selection of Bills Committee recommended that the Bill not be referred to a Committee.[13]

Senate Standing Committee for the Scrutiny of Bills

In its Scrutiny Digest 6 of 2017, the Scrutiny of Bills Committee stated that it had no comment on the Bill.[14]

Policy position of non-government parties/independents

Non-government parties and independents have not provided comment about the Bill at the time of writing.

Position of major interest groups

No interest groups have commented on the Bill at the time of writing.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[15]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[16]

Parliamentary Joint Committee on Human Rights

In its Report 5 of 2017, the Parliamentary Joint Committee on Human Rights concluded that the Bill does not raise human rights concerns.[17]

Key issues and provisions

Schedule 1

Part 1

Part 1 of Schedule 1 makes minor technical amendments to seventeen Acts. These amendments are aimed at improving the clarity of the legislation and do not have substantive impact on the operation of the law. The changes include:

•       fixing typographical errors[18]

•       amending the heading of a section (or subsection) to better represent the contents of the relevant provision[19]

•       removing, replacing or clarifying references to redundant or incorrect concepts[20], and fixing incorrect or redundant cross-references[21]

•       amending language in line with current drafting practice[22]

•       replacing a reference to the day on which a repealed Act received Royal Assent with the actual date of Royal Assent[23] and

•       repealing redundant provisions.[24]

Examples of the types of proposed amendments contained in this Schedule are outlined below. All amendments in Part 1 of Schedule 1 commence 28 days after Royal Assent.[25]

Changes to section headings

Subsection 25(1) of the Australian Communications and Media Authority Act 2005 (Cth) provides that an associate member of the Australian Communications and Media Authority holds office for the period specified in his or her instrument of appointment, which must not exceed five years. The current heading for the subsection is Default period, but no default period is provided for in the event that an instrument of appointment does not specify a period of appointment within the statutory maximum. Item 3 repeals this heading and substitutes a new heading: Period specified in instrument of appointment, to better reflect the contents of the provision.

Redundant concepts

Items 7 and 10 remove references to the non-existent Administrative Review Tribunal from the Compensation (Japanese Internment) Act 2001 (Cth) and Dairy Produce Act 1986 (Cth) respectively. These references appear to have been included in the relevant Acts alongside references to the Administrative Appeals Tribunal (AAT), in anticipation of the proposed 2001 merger of merits review tribunals. The merger of the AAT, Social Security Appeals Tribunal, Migration Review Tribunal and Refugee Review Tribunal was to result in the creation of a single review body, the Administrative Review Tribunal (ART).[26] The merger did not take place at the time and the ART was never formed. Removing references to the ART simply has the effect that the relevant provisions will refer only to the still-existing AAT.

Incorrect citations

Items 22 to 26 fix incorrect citations in the Work Health and Safety Act 2011 (Cth). Under this Act, corresponding WHS law is defined to include the WHS laws in each state and territory. However, a number of the laws are incorrectly cited. The Explanatory Memorandum states that this is because the Commonwealth Act was:

… drafted in anticipation of all States and Territories implementing the model Work Health and Safety Act on 1 January 2012. Two jurisdictions (Victoria and Western Australia) have not implemented the model, and several others adopted a different title than was anticipated at the time.[27]

The amendments replace incorrect citations of the WHS laws of Victoria, Western Australia, South Australia, Tasmania and the Northern Territory with the correct title for each Act.

Part 2

Part 2 of Schedule 1 amends the Carriage of Goods by Sea Act 1991 (Cth) to replace a reference to the ‘Chief Executive Officer of Customs’ with ‘Comptroller-General of Customs’.[28] This reflects changes made by the Customs and Other Legislation Amendment (Australian Border Force) Act 2015 (Cth), which established the role of the Comptroller-General of Customs as part of the establishment of the Australian Border Force.[29]

This Part commences retrospectively, on the date of commencement of the Australian Border Force Act 2015 (Cth), being 1 July 2015.[30]

Schedule 2

Schedule 2 contains amendments consequential to the Acts and Instruments (Framework Reform) Act 2015 (Cth) (Framework Reform Act). The Framework Reform Act made substantial amendments to the (then) Legislative Instruments Act 2003, which included changing its title to the Legislation Act 2003 (Cth).[31] At the time the Framework Reform Act was passed, a separate Act made consequential amendments to 201 Commonwealth statutes, primarily updating references to provisions and to the new title of the Legislation Act.[32]

Schedule 2 amends provisions in a small number of Acts which were not captured by these 2015 amendments:

•       Australian River Co. Limited Act 2015

•       Australian Small Business and Family Enterprise Ombudsman Act 2015

•       Biosecurity Act 2015

•       Biosecurity (Consequential Amendments and Transitional Provisions) Act 2015

•       Migration Act 1958.

The changes update references to the Legislative Instruments Act with the new title of the Act.[33] They also replace references to provisions under the Legislative Instruments Act with the corresponding provision under the Legislation Act.[34] These amendments do not affect the substance of the legislation—as noted in the Explanatory Memorandum:

Part 6 of [the Framework Reform Act] and section 10 of the Acts Interpretation Act 1901 have operated to ensure that various textual references to the Legislative Instruments Act 2003 and provisions within that Act that still remain on the Statute Book are to be read consistently with amendments by the [Framework Reform Act].[35]

The changes in Schedule 2 commence 28 days after Royal Assent.[36]

Schedule 3

Schedule 3 repeals spent and redundant provisions in five Acts:

•       Defence Act 1903

•       Medibank Private Sale Act 2006

•       Plant Health Australia (Plant Industries) Funding Act 2002

•       Prohibition of Human Cloning for Reproduction Act 2002

•       Tobacco Advertising Prohibition Act 1992.

The changes do not have substantive effect as each of the provisions repealed by Schedule 3 have either ceased to be in force or are redundant. The changes in Schedule 3 commence 28 days after Royal Assent.[37]

An example is in relation to the Tobacco Advertising Prohibition Act 1992 (Cth), which makes it an offence to publish or broadcast a tobacco advertisement, unless an exception applies under the Act.[38] Section 18 previously allowed the Minister for Health to exempt a sporting or cultural event from the tobacco advertising ban, where the event was of international significance and was to be completed before 1 October 2006. Since 1 October 2006, exemptions cannot be granted for such events, and section 18 no longer has any effect. Item 12 repeals this redundant provision. Items 8 to 11 and 14 to 18 make consequential amendments by removing references to section 18 occurring throughout the Act.

Schedule 4

Schedule 4 repeals four spent Acts:

•       Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Act 2007 (Cth)

•       Governor-General Amendment Act 2003 (Cth)

•       Stevedoring Industry Act 1961 (Cth)

•       Stevedoring Industry (Temporary Provisions) Act 1968.

Each of these Acts is an amending Act. The amendments contained in each Act have been made, and there are no application, saving, transitional or other provisions with ongoing effect.[39] The changes in Schedule 4 commence 28 days after Royal Assent.[40]

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[1].              J Frydenberg, ‘Second reading speech: Statute Update (Winter 2017) Bill 2017’, House of Representatives, Debates, 25 May 2017, p. 5135.

[2].              See: C Raymond, Statute Law Revision (Spring 2016) Bill 2016, Bills digest, 8, 2016–17, Parliamentary Library, Canberra, 2016; J Tomaras, Statute Update Bill 2016, Bills digest, 11, 2016–17, Parliamentary Library, Canberra, 2016; C Petrie, Statute Law Revision Bill (No. 2) 2016, Bills digest, 105, 2015–16, Parliamentary Library, Canberra, 2016; M Coombs, Statute Law Revision Bill (No. 3) 2015, Bills digest, 58, 2015–16, Parliamentary Library, Canberra, 2015.

[3].              It is for this reason that Commonwealth First Parliamentary Counsel can provide policy authority for statute law revision Bills. See: Department of the Prime Minister and Cabinet (DPMC), Legislation handbook, DPMC, Canberra, February 2017, pp. 14, 19 and 22; and Office of Parliamentary Counsel (OPC), Drafting direction no. 4.4: changes using FPC's editorial powers and statute law revision amendments , document release 2.0, reissued 29 February 2016, pp. 7–8.

[4].              Explanatory Memorandum, Statute Update (Winter 2017) Bill 2017, p. 2, which notes that ‘[b]ecause some amendments may make minor changes, the amendments were not considered appropriate for inclusion in a Statute Law Revision Bill’. See further: Explanatory Memorandum, Statute Update Bill 2016, p. 2. A search of the Federal Register of Legislation at June 2017 indicates that only two Bills of this short title have been introduced—the Statute Update Bill 2016 (Act No 61 of 2016) and the Statute Update (A.C.T. Self-Government (Consequential Provisions) Regulations) Bill 2016 (Act No 13 of 2017).

[5].              DPMC, Legislation handbook, op. cit., p. 22.

[6].              Cutting Red Tape website. A report has not yet been tabled for the 2016–17 financial year. The 2015–16 annual report identifies statute law revision Bills among the red-tape reduction measures implemented by the Attorney-General’s portfolio: Australian Government, Annual red tape reduction report 2015, DPMC, Canberra, March 2016, Appendix B.2, pp. 1, 3 and 6.

[7].              Legislation Act 2003 (Cth), section 15X.

[8].              Ibid., subsection 15V(6); OPC, Drafting direction no. 4.4: changes using FPC’s editorial powers and statute law revision amendments, op. cit., p. 3.

[9].              Six-monthly reports are published on the Federal Register of Legislation (FRL), ‘List of editorial changes made’, FRL website.

[10].              Senate Standing Committee on Legal and Constitutional Affairs, Acts and Instruments (Framework Reform) Bill 2014 [Provisions], Report, The Senate, Canberra, December 2014, p. 17.

[11].              OPC, Drafting direction no. 4.4: changes using FPC’s editorial powers and statute law revision amendments, op. cit., p. 5.

[12].              Raymond, Statute Law Revision (Spring 2016) Bill 2016, Bills digest, op. cit., p. 6.

[13].              Senate Standing Committee for Selection of Bills, Report, 6, 2017, The Senate, Canberra, 15 June 2017, p. 4.

[14].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 6, 2017, The Senate, Canberra, 14 June 2017, p. 62.

[15].              Explanatory Memorandum, Statute Update (Winter 2017) Bill 2017, p. 2.

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

[17].              Parliamentary Joint Committee on Human Rights, Scrutiny report, 5, 2017, Canberra, 14 June 2017, p. 49.

[18].              Schedule 1, items 1, 2 and 11.

[19].              Schedule 1, items 3, 5 and 14.

[20].              Schedule 1, item 7, 10, 15, 16.

[21].              Schedule 1, items 4, 8, 9, 12, 13, 20, 22–26.

[22].              Schedule 1, item 6.

[23].              Schedule 1, items 18, 21.

[24].              Schedule 1, item 17.

[25].              Subclause 2(1), table item 2.

[26].              Parliament of Australia, ‘Administrative Review Tribunal Bill 2000 homepage’, Australian Parliament website.

[27].              Explanatory Memorandum, Statute Update (Winter 2017) Bill 2017, op. cit., p. 9.

[28].              Schedule 1, item 27 amends paragraph 4(a) of Article 1 of Schedule 1A of the Carriage of Goods by Sea Act 1991 (Cth), which provides that for the purposes of the Amended Hague Rules, the limits of a port or wharf in Australia are the limits of the area within the limits fixed by the Chief Executive Officer of Customs under the Customs Act 1901.

[29].              Customs and Other Legislation Amendment (Australian Border Force) Act 2015 (Cth); C Barker, Australian Border Force Bill 2015 [and] Customs and Other Legislation Amendment (Australian Border Force) Bill 2015, Bills digest, 94, 2014–15, Parliamentary Library, Canberra, 2015.

[30].              Subclause 2(1), table item 3.

[31].              D Spooner, Acts and Instruments (Framework Reform) Bill 2014, Bills digest, 70, 2014–15, Parliamentary Library, Canberra, 2015.

[32].              Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 (Cth).

[33].              Schedule 2, items 1, 3, 4, 5, 6, 8, 9, 11, 12.

[34].              Schedule 2, items 2, 7, 10, 13.

[35].              Explanatory Memorandum, Statute Update (Winter 2017) Bill 2017, op. cit., p. 11.

[36].              Subclause 2(1), table item 4.

[37].              Subclause 2(1), table item 4.

[38].              Department of Health (DoH), ‘Tobacco advertising’, DoH, Canberra, 23 June 2017.

[39].              Explanatory Memorandum, Statute Update (Winter 2017) Bill 2017, op. cit., p. 13.

[40].              Subclause 2(1), table item 4.