BILLS DIGEST NO. 103, 2017–18              8 May 2018

Statute Update (Autumn 2018) Bill 2018

Laura Sweeney
Law and Bills Digest Section

Date introduced:  28 March 2018

House:  House of Representatives

Portfolio:  Attorney-General

Commencement: Sections 1–3 on the day after Royal Assent; Items 1–6 of Schedule 1 and Schedules 2–6 commence 28 days after Royal Assent; Items 7 and 8 of Schedule 1 commence retrospectively on 1 July 2017.

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 May 2017.

Purpose of the Bill

The purpose of the Statute Update (Autumn 2018) Bill 2018 (the Bill) is to correct technical errors and make other minor amendments to statutes, as well as to repeal spent and obsolete provisions and Acts, in order to improve the quality and accuracy of Commonwealth legislation.[1]

Structure of the Bill

This is an omnibus Bill. It contains six schedules which propose amendments to 74 Acts:

•       Schedule 1 makes minor and technical changes to amend errors in five principal Acts

•       Schedule 2 amends four Acts to replace references to ‘the Institute of Chartered Accountants in Australia’ with references to ‘Chartered Accountants Australia and New Zealand’

•       Schedule 3 makes consequential amendments to the Food Standards Australia New Zealand Act 1991 (Food Standards Act) following the enactment of the Acts and Instruments (Framework Reform) Act 2015 (Framework Reform Act)

•       Schedule 4 repeals obsolete references to the Crown in right of Norfolk Island in 22 principal Acts

•       Schedule 5 repeals spent provisions in two principal Acts and

•       Schedule 6 repeals 40 obsolete amending Acts.

Background

The Bill was introduced into the House of Representatives on 28 March 2018 by the Minister for Social Services, Dan Tehan.[2] In his second reading speech, the Minister explained:

Statute Law Revision Acts and Statute Stocktake Acts have been passed on a regular basis since 1934 as a means of removing obsolete and spent provisions from the statute book and correcting mistakes in drafts. They are traditionally non-controversial and regarded as an essential means of keeping the Commonwealth statute book accurate and up to date.[3]

The Bill is one of five statute update Bills that have been introduced into the Australian Parliament over time:

•       Statute Update (Autumn 2018) Bill[4]

•       Statute Update (Smaller Government) Bill 2017[5]

•       Statute Update (Winter 2017) Bill 2017[6]

•       Statute Update (ACT Self-Government (Consequential Provisions) Regulations) Bill 2016[7]

•       Statute Update Bill 2016[8]

Difference between statute update Bills and statute law revision Bills

The Legislation Handbook published by the Department of Prime Minister and Cabinet describes statute law revision Bills as Bills which make:

… technical amendments to a number of Commonwealth Acts. The amendments included in such a bill deal only with tidying up, correction of errors, updating (including modernisation of style) and repeal of spent provisions.[9]

In addition to statute law revisions Bills, amendments to the Legislation Act 2003 in 2015 empowered the First Parliamentary Counsel (FPC) to make editorial changes to the texts of Acts and instruments, where the changes do not change the effect of the Acts or instruments.[10] Section 15X of the Legislation Act defines an editorial change 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.[11]

In light of these amendments, the Legislation Handbook explains that ‘[s]ome changes that previously would have been made in statute law revision Bills can now be made by the First Parliamentary Counsel using editorial powers under the Legislation Act 2003’.[12] These powers are, however, used sparingly.[13]

Statute update Bills may be distinguished from statute law revision Bills on the basis that they contain amendments which make minor changes to the substance and legal effect of the provisions subject to amendment.[14] Items 7 and 8 of Schedule 1 of this Bill, discussed below, are an example of such amendments.[15] By contrast, statute law revision Bills only make ‘purely formal’ changes, such as correcting errors, repealing spent provisions and modernising the style of the Act.[16] Explanatory memoranda for previous statute update Bills have emphasised this distinction. For example, the Explanatory Memorandum for the Statute Update (Winter 2017) Bill 2017 explained that ‘[b]ecause some amendments may make minor changes, the amendments were not considered appropriate for inclusion in a statute law revision Bill’.[17]

The amendments in this Bill are consistent with those that are required to be made by a statute update Bill.

Committee consideration

Senate Standing Committee for Selection of Bills

On 28 March 2018 the Standing Committee for Selection of Bills deferred consideration of the Statute Update (Autumn 2018) Bill 2018 until its next meeting.[18]

Senate Standing Committee for the Scrutiny of Bills

At the time of writing this Bills Digest the Scrutiny of Bills Committee had not considered the Bill.

Policy position of non-government parties/independents

At the time of writing this Bills Digest no non-government parties and independents had provided comment about the Bill.

Position of major interest groups

At the time of writing this Bills Digest no major interest groups had commented on the Bill.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[19]

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.[20]

Parliamentary Joint Committee on Human Rights

At the time of writing this Bills Digest the Parliamentary Joint Committee on Human Rights had not considered the Bill.

Key issues and provisions

Schedule 1

Schedule 1 makes minor and technical changes to amend eight errors in five principal Acts. The amendments seek to rectify the following types of errors:

•       typographical errors[21]

•       references to incorrect concepts[22]

•       references to repealed Acts[23]

•       cross-referencing errors[24] and

•       incorrect formula[25]

Typographical errors

Item 1 of Schedule 1 to the Bill replaces a full stop with a semi-colon at the end of paragraph 104.29(2)(i) of the Criminal Code Act 1995 (Criminal Code). This item commences 28 days after Royal Assent.[26]

References to incorrect concepts

Item 2 substitutes the reference to an authorised employee of an Education Service for Overseas Students (ESOS) in subsection 149(1) of the Education Services for Overseas Students Act 2000 (ESOS Act) with a reference to an authorised officer. Section 6A of the ESOS Act sets out who is an authorised officer of an ESOS agency for a registered provider.[27] By contrast, there are no other references to an authorised employee in the ESOS Act. Consequently, this amendment substitutes the incorrect concept of authorised employee with the correct one of authorised officer.

References to repealed Acts

Item 3 amends the definition of trade union in subsection 3(1) of the Equal Opportunity in Employment Act 1987. That Act currently defines the term trade union to include ‘an organisation of employees registered pursuant to the Conciliation and Arbitration Act 1904.[28] As the Explanatory Memorandum to the Bill notes, the Conciliation and Arbitration Act was repealed in 1988 by the Industrial Relations (Consequential Provisions) Act 1988. Section 5 of the Industrial Relations (Consequential Provisions) Act provided that organisations registered under the Conciliation and Arbitration Act were taken to be registered under the Industrial Relations Act 1988,[29] which has since been renamed as the Fair Work (Registered Organisations) Act 2009. To reflect these changes, item 3 replaces the reference to the Conciliation and Arbitration Act in the definition of trade union in the Equal Opportunity in Employment Act with a reference to the Fair Work (Registered Organisations) Act.[30]

This item commences 28 days after Royal Assent.[31]

Cross-referencing errors

Items 4, 5 and 6 of Schedule 1 to the Bill substitute incorrect references to Chapter 3 of the Criminal Code in the notes to subsections 24(2), 24(3) and 154(2) of the Renewable Energy (Electricity) Act 2000 with the correct cross-references to Part 1A of the Crimes Act 1914.[32]

These items commence 28 days after Royal Assent.[33]

Incorrect formula

Items 7 and 8 of Schedule 1 amend the formula used to annually index the lifetime limit and yearly rate for trade support loans under section 99 of the Trade Support Loans Act 2014.[34] The Trade Support Loans Act establishes the Trade Support Loans (TSL) program.[35] The program provides for concessional and income contingent loans to certain apprentices, with a lifetime limit of $20,000, indexed from 2017.[36]

Subsection 24(1) of the Trade Support Loans Act sets out the yearly rate of the trade support loan for apprentices.[37] The amount varies depending on the apprenticeship year being undertaken. For example, a person’s yearly rate will be $8,000 if they are undertaking the first year of their apprenticeship,[38] and $6,000 if they are undertaking the second year of their apprenticeship.[39] The note to subsection 24(1) states that ‘the yearly rates are indexed on 1 July 2017 and each later 1 July in line with increases in the consumer price index (see section 99)’.[40]

Subsection 99(1) of the Trade Support Loans Act provides that both the lifetime limit and yearly rate ‘is to be indexed on 1 July 2017 and each later 1 July’.[41] Subsection 99(3) sets out the method for determining the indexed amount.[42] Subsection 99(4) sets out the formula for determining the annual indexation factor, which is multiplied by the amount to be indexed to determine the indexed amount.[43] Subsection 99(5) provides further guidance about the denominator used in the formula in subsection (4).[44] The Explanatory Memorandum to the Bill explains that the drafting of the formula in subsection 99(4) almost always produces an annual indexation factor of 1, ‘resulting in no indexation’.[45] Item 7 of Schedule 1 changes the formula in subsection 99(4).[46] Item 8 amends the description of the denominator in the revised formula.[47] The amendments will provide for the correct indexation of both the lifetime limit and yearly rate.

Items 7 and 8 of Schedule 1 commence retrospectively on 1 July 2017.[48] The Explanatory Memorandum notes that the amendments are beneficial, and the slip rule would have applied to correct the error since 1 July 2017.[49] The retrospective commencement is designed to ensure that the correct formula is in force when the amounts have to be indexed for the first time under section 99 of the Act.[50]

Schedule 2

Schedule 2 amends four Acts to replace references to ‘the Institute of Chartered Accountants Australia’ with references to ‘Chartered Accountants Australia and New Zealand’:

•       Anti-Money Laundering and Counter-Terrorism Financing Act 2006

•       Australian Research Council Act 2001

•       National Land Transport Act 2014 and

•       Natural Resources Management (Financial Assistance) Act 1992.

Chartered Accountants Australia and New Zealand (CAANZ), was formally established by the grant of a new Royal Charter on 26 November 2014, following the merger of the Institute of Chartered Accountants Australia (ICCAA) and New Zealand Institute of Chartered Accountants (NZICA).[51] The amendments in Schedule 2 ensure that the four Acts listed above refer to the current, merged organisation, rather than ICAA, which no longer exists.[52]

Schedule 3

Schedule 3 amends the Food Standards Act to reflect amendments made by the Framework Reform Act. The Framework Reform Act made several substantive changes to the Legislative Instruments Act 2003 and renamed that Act as the Legislation Act 2003. In 2015, the Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 amended 201 Commonwealth Acts to reflect these changes to the Legislation Act. However, the Food Standards Act was not captured by these amendments. Schedule 3 seeks to rectify this, by amending references to the Legislative Instruments Act in the Food Standards Act to the Legislation Act,[53] and inserting additional guidance into the Food Standards Act about the application of sunsetting and disallowance provisions in the Legislation Act.[54]

Most of the items in Schedule 3 of the Bill repeal provisions in the Food Standards Act that refer to the former disallowance and sunsetting provisions in the Legislative Instruments Act and replace them with notes referring to the equivalent provisions in the Legislation Act.[55] For example, subsections 6(4), 23(4), 82(2) and 106(6) of the Food Standards Act currently refer explicitly to section 42 and Part 6 in the former Legislative Instruments Act. Items 1–6 and items 11 and 12 of Schedule 3 repeal these subsections and replace them with notes confirming that section 42 and Part 4 of Chapter 3 of the Legislation Act do not apply to the instrument of revocation or amendment.[56]

Items 8, 9 and 10 in Schedule 3 substitute provisions referring to the Legislative Instruments Act in section 94 and subsections 82(8) and 97(6) of the Food Standards Act with alternative provisions accompanied by notes which confirm that section 42 and Part 4 of Chapter 3 of the Legislation Act do not apply to the instrument of revocation or amendment.[57]

Schedule 3 commences 28 days after Royal Assent.[58]

Schedule 4

Schedule 4 repeals obsolete references to the Crown in right of Norfolk Island in 22 principal Acts. As the Minister for Social Services explained in his Second Reading Speech,[59] these amendments reflect the abolition of Norfolk Island as a body politic on 1 July 2016 by amendments to the Norfolk Island Act 1979 passed by the Australian Parliament in May 2015.

Schedule 5

Schedule 5 of the Bill repeals spent provisions in the Social Security Legislation Amendment (One-off Payments for Carers) Act 2005 (One-off Payments for Carers Act) and Telstra Corporation Act 1991 (Telstra Act). Item 1 of Schedule 5 repeals Schedule 1 in the One-off Payment for Carers Act. Schedule 1 consists of two parts. Part 1 inserted new parts 2.5B, 2.5C and 2.19B into Chapter 2 of the Social Security Act 1991. These parts provide for the payment of one-off bonuses of $1,000 to carers who received an instalment of their carer service payment, carer service pension or carer allowance in a period including 10 May 2010.[60] Part 2 of Schedule 1 to the One-off Payments for Carers Act amended various provisions in the Income Tax Assessment Act 1936 and Income Tax Assessment Act 1997, to ensure the bonus payments were not subject to income tax.[61] The Schedule commenced on Royal Assent,[62] being 25 May 2005.[63] As these amendments have taken effect, the Schedule is now obsolete.

Item 2 of Schedule 5 repeals subsections 36(2), (2A) and (6) of the Telstra Act. Section 36 of the Telstra Act provides for the resignation of the Auditor-General as auditor of Telstra and the appointment of a replacement auditor.[64] Subsection 36(2) provides for the repeal of subsections 36(3), (3A) and (4).[65] These subsections were repealed in November 2006.[66] As the Explanatory Memorandum to this Bill notes, subsections 36(2A) and (6) only operated prior to the repeal of subsections 36(3), (3A) and (4).[67] The repeal of these subsections rendered subsections 36(2A) and (6) inoperable. Item 2 of Schedule 5 thus clarifies the operation of section 36 of the Telstra Act by removing these obsolete provisions.[68]

Schedule 5 commences 28 days after Royal Assent.[69]

Schedule 6

Schedule 6 repeals 40 obsolete Acts. Each of the 40 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.[70] The changes in Schedule 6 commence 28 days after Royal Assent.[71]

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[1].              D Tehan (Minister for Social Services), ‘Second reading speech: Statute Update (Autumn 2018) Bill 2018’, House of Representatives, Debates, 28 March 2018, p. 3021.

[2].              Parliament of Australia, ‘Statute Update (Autumn 2018) Bill 2018 homepage’, Australian Parliament website.

[3].              Tehan (Minister for Social Services), ‘Second reading speech: Statute Update (Autumn 2018) Bill 2018’, op. cit., p. 3021.

[4].              Parliament of Australia, ‘Statute Update (Autumn 2018) Bill 2018 homepage’, op. cit.

[5].              Parliament of Australia, ‘Statute Update (Smaller Government) Bill 2017 homepage’, Australian Parliament website.

[6].              Parliament of Australia, ‘Statute Update (Winter 2017) Bill 2017 homepage’, Australian Parliament website.

[7].              Parliament of Australia, ‘Statute Update (ACT Self-Government (Consequential Provisions) Regulations) Bill 2016 homepage’, Australian Parliament website.

[8].              Parliament of Australia, ‘Statute Update Bill 2016 homepage’, Australian Parliament website.

[9].              Department of Prime Minister and Cabinet (PM&C), Legislation Handbook, PM&C, Canberra, February 2017, p. 22.

[10].              Legislation Act 2003 (Cth), section 2(aa), as amended by the Acts and Instruments (Framework Reform) Act 2015 (Cth).

[11].              Ibid., section 15X.

[12].              PM&C, Legislation Handbook, op. cit.

[13].              For a detailed overview of the FPC’s editorial powers see C Petrie, Statute Update (Winter 2017) Bill 2017, Bills digest, 16, 2017–18, Parliamentary Library, Canberra, 2017.

[14].              Ibid., p. 2.

[15].              Schedule 1, items 7-8.

[16].              PM&C, Legislation Handbook, op. cit.

[17].              Explanatory Memorandum, Statute Update (Winter 2017) Bill 2017, p. 2; See also Explanatory Memorandum, Statute Update Bill 2016, p. 1.

[18].              Senate Standing Committee for Selection of Bills, Report, 4, 2018, The Senate, Canberra, 28 March 2018, p. 4.

[19].              Explanatory Memorandum, Statute Update (Autumn 2018) Bill 2018, p. 2.

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

[21].              Schedule 1, item 1.

[22].              Schedule 1, item 2.

[23].              Schedule 1, items 3.

[24].              Schedule 1, items 4-6.

[25].              Schedule 1, items 7-8.

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

[27].              Education Services for Overseas Students Act 2000 (Cth), section 6A.

[28].              Equal Opportunity in Employment Act 1987 (Cth), subsection 3(1).

[29].              Industrial Relations (Consequential Provisions) Act 1988 (Cth), section 5.

[30].              Schedule 1, item 3.

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

[32].              Schedule 1, items 4-6.

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

[34].              Schedule 1, items 7-8.

[35].              Explanatory Memorandum, Trade Support Loans Bill 2014, p. 2.

[36].              Ibid. Section 5 of the Trade Support Loans Act sets the lifetime limit at $20,000.

[37].              Ibid., subsection 24(1).

[38].              Ibid., paragraph 24(1)(a).

[39].              Ibid., paragraph 24(1)(b).

[40].              Ibid., subsection 24(1).

[41].              Ibid., subsection 99(1).

[42].              Ibid., subsection 99(3).

[43].              Ibid., subsection 99(4).

[44].              Ibid., subsection 99(5).

[45].              Explanatory Memorandum, Statute Update (Winter 2017) Bill 2017, pp. 7–8.

[46].              Schedule 1, item 7.

[47].              Schedule 1, item 8.

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

[49].              Explanatory Memorandum, Statute Update (Autumn 2018) Bill 2018, p. 4.

[50].              Ibid.

[51].              Chartered Accountants Australia and New Zealand, ‘Our royal charter’, Chartered Accountants of Australia and New Zealand website, accessed 4 May 2018.

[52].              Ibid.

[53].              Schedule 3, item 7.

[54].              Schedule 3, items 1 to 6, 8 to 12.

[55].              Schedule 3, items 1 to 6, 11 and 12.

[56].              Schedule 3, items 1 to 6, 11 and 12.

[57].              Schedule 3, items 8, 9 and 10.

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

[59].              Tehan, ‘Second reading speech: Statute Update (Autumn 2018) Bill’, op. cit., p. 3021.

[60].              Social Security Act 1991 (Cth), chapter 2, parts 2.5B, 2.5C and 2.19B.

[61].              Social Security Legislation Amendment (One-off Payments for Carers) Act 2005 (Cth), schedule 1, part 2.

[62].              Ibid., section 2.

[63].              Parliament of Australia, ‘Social Security Legislation Amendment (One-off Payments for Carers) Bill 2005 homepage’, Australian Parliament website.

[64].              Telstra Corporation Act 1991 (Cth), section 36.

[65].              Ibid., subsection 36(2).

[66].              Explanatory Memorandum, Statute Update (Autumn 2018) Bill 2018, p. 12.

[67].              Ibid.

[68].              Schedule 5, item 2.

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

[70].              Explanatory Memorandum, Statute Update (Autumn 2018) Bill 2018, pp. 13–22.

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