Bills Digest no. 10 2015–16
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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.
Moira Coombs
Law and Bills Digest Section
17 August 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Schedule 1—Consequential amendments
Schedule 2—Amendments relating to court rules
Schedule 3—Amendments relating to forms and technical
matters
Date introduced: 25
June 2015
House: House of
Representatives
Portfolio: Attorney-General
Commencement: Sections
1 to 3 commence on the day of Royal Assent. The three Schedules and their Parts
commence at various times and in some cases are dependent on the commencement
of the Acts and Instruments (Framework Reform) Act 2015 and the Intellectual
Property Laws Amendment 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 ComLaw
website.
The purpose of the Acts and Instruments (Framework Reform)
(Consequential Provisions) Bill 2015 (the Bill) is to:
- amend
201 Commonwealth statutes that are affected by the passing of the Acts and
Instruments (Framework Reform) Act 2015[1]
(Reform Act) and to update current references to the Legislative
Instruments Act 2003, which will be renamed the Legislation Act 2003 by
the Reform Act
- update
references from particular provisions in the Legislative Instruments Act
2003 to the corresponding provisions in the Legislation Act 2003 and
- amend
provisions relating to the status of court rules.
The Reform Act received Royal Assent on 5 March
2015. The Act will commence on 5 March 2016, or earlier by proclamation. The Reform
Act ‘consolidates the frameworks for the publication of Commonwealth Acts
and the registration of legislative and other instruments by repealing the Acts
Publication Act 1905 and incorporating the requirements for publishing
Commonwealth Acts into the Legislative Instruments Act’.[2]
As a result, when the Reform Act commences the Legislative
Instruments Act 2003 will be significantly amended and renamed the Legislation
Act 2003. Commonwealth Acts and instruments will be part of a single
repository, the Federal Register of Legislation. The Register ‘will provide for
the alignment of processes for registration, compilations, editorial changes
and authorised versions of both Acts and instruments, producing administrative
efficiencies across government’.[3]
The Reform Act introduced a new category of
instruments called notifiable instruments, which will require registration.
They are not legislative instruments and therefore not subject to parliamentary
scrutiny and sunsetting.
The new category of notifiable instruments is designed to
cover instruments that are not appropriate to register as legislative
instruments, but for which public accessibility and centralised management is
desirable. Instruments may become notifiable instruments by being registered,
by being prescribed by regulation under the Legislation Act, or by being
declared as notifiable instruments in the enabling legislation. Registration
will satisfy any existing publication requirements for the instrument (for
example, gazettal).[4]
The Reform Act implements a number of
recommendations made in the 2008 review of the Legislative Instruments Act
2003.[5]
The Explanatory Memorandum to the Reform Bill stated:
Following the review and in response to the recommendations,
a number of measures have been taken. This includes work to manage the
sunsetting of legislative instruments across the Commonwealth, including
through the introduction of a regulation-making power to enable the repeal of
spent instruments. Technical enhancements have been made to the Register to
ensure a high level of performance and useability, and to support the
sunsetting of instruments. The Office of Parliamentary Counsel has updated the
Legislative Instruments Handbook to provide more detailed guidance to help
Commonwealth rule-makers and agencies to manage their legislative instruments
efficiently, effectively and in accordance with the law.
As a result of other recommendations of the committee and the
passage of time, the scheme now requires reform to enhance the accessibility of
Commonwealth instruments and to improve the efficiency and operability of the
scheme.[6]
The intention of the Acts and Instruments (Framework Reform)
Bill 2014 was to:
...implement a number of the outstanding recommendations of the
2008 Review of the Legislative Instruments Act 2003. The Bill makes a
number of other amendments to improve the operation and clarity of legislative
frameworks for Commonwealth Acts and instruments and contribute to the
Government’s deregulation agenda by creating administrative efficiencies across
government and enhancing the public accessibility of Commonwealth laws.[7]
The Bills Digest on the Acts and Instruments (Framework
Reform) Bill 2014 discusses the implementation of the major recommendations of
the 2008 review.[8]
The current Bill makes the necessary ‘consequential
amendments such as updating references to the Legislative Instruments Act
2003, and provisions which deal with the application of the Act, to
reflect the amendments made’ by the Reform Act.[9]
Senate Standing Committee for the Selection
of Bills
On 13 August 2015, the Senate Selection of Bill Committee decided
that the Bill did not require inquiry and report by Committee.[10]
Senate Standing Committee for the
Scrutiny of Bills
The Committee had no comment on the Bill.[11]
The Acts and Instruments (Framework Reform) Bill 2014 was
supported by Labor and the Greens during its passage through Parliament. During
the debate on that Bill, the Shadow Attorney-General Mark Dreyfus noted:
It is important that delegated legislation and other
Commonwealth instruments are dealt with as clearly and as transparently as
possible. We support any measure which makes Commonwealth instruments easier to
locate and easier to understand.[12]
The Explanatory Memorandum notes that the Bill will have a
nil or insignificant financial impact on government departments and agencies.[13]
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.[14]
The Parliamentary Joint Committee on Human Rights considers
that the Bill does not raise human rights concerns.[15]
Generally, the nature of the changes made by the Bill are
minor.
Part 1—Main amendments
Part 1 of Schedule 1 will commence on the later of the day
the Bill receives Royal Assent and the commencement of Schedule 1 to the Reform
Act.
Schedule 1 Part 1 amends 197 Acts to make the necessary
changes required as a consequence of the passing of the Reform Act. The Bill
makes the following type of amendments:
- updates
references to the Legislative Instruments Act 2003 to refer to the Legislation
Act 2003
- updates
references to specific provisions in the Legislative Instruments Act 2003
to the new corresponding provisions in the Legislation Act 2003
- updates
provisions that relate to legislative instruments that currently have
retrospective operation and amends the provisions to refer to section 12 in the
Legislation Act 2003
- updates
references to the Federal Register of Legislative Instruments to refer to the
Federal Register of Legislation
- removes
references to certain sunsetting and disallowance exemptions for legislative
instruments. Some of these exemption provisions will be retained in the Legislation
Act 2003, while other exemptions which are currently provided in tables in
sections of the Legislative Instruments Act 2003 will be consolidated in
the updated Legislative Instruments Regulation 2004. Reference numbers are
updated to accord with the Legislation Act 2003. The legal effect of the
provisions remains unchanged[16]
and
- repeals
several spent provisions and makes other minor technical corrections.
Part 2—Contingent amendments
Contingent amendments are made to four Acts replacing the reference
to the Legislative Instruments Act 2003 with a reference to the Legislation
Act 2003. These amendments are ‘contingent’ as item 3 of the
commencement table in clause 2 of the Bill provides that the amendments
will not commence if Schedule 4 to the Intellectual Property Laws Amendment
Act 2015 does not commence.[17]
This is because the provisions to be amended by Part 2 of Schedule 1 to the
Bill are inserted by Schedule 4 of the Intellectual Property Laws Amendment
Act 2015. Accordingly, the amendments cannot occur unless Schedule 4
commences.
Part 1—Amendments commencing on
Proclamation
Items 1 and 2 make minor amendments to
section 123 of the Family Law Act 1975 (FLA).[18]
Subsection 123(1) of the FLA allows the Family
Court judges, or a majority of them, to make rules of court that apply to
Family Court practice and procedure. Subsection 123(2A) allows the Office of Parliamentary
Counsel (OPC) to provide assistance in the drafting of rules of the Family
Court. Currently, section 9 of the Legislative Instruments Act 2003
provides that rules of court are not legislative instruments. This provision is
substituted by paragraph 8(8)(d) of the Legislation Act 2003, which
provides that rules for the High Court, the Federal Court of Australia, the
Family Court of Australia or the Federal Circuit Court of Australia are not
legislative instruments.
Although court rules are not legislative instruments,
subsection 123(2) of the FLA provides that the Legislative
Instruments Act 2003 (other than some specified sections) applies in
relation to rules ‘made under this section’. Item 133 of Schedule 1 to the Reform
Act amends subsection 123(2) of the FLA to change the reference to
the Legislative Instruments Act 2003 to the Legislation Act
2003. Item 1 of Schedule 2 to the Bill further amends subsection
123(2) to make it clear that the Legislation Act 2003 (with the
exception of certain sections) will apply to rules of court made by the Family
Court judges, whether those rules are made under section 123 of the FLA or
under any other Act. This change in wording is consistent with the enabling
legislation of other federal courts and brings the Family Court into line with
other federal court legislation.[19]
Item 2 amends subsection 123(2A) to makes it clear
that OPC may assist the Family Court judges to make rules of court under the FLA
or any other Act.
Part 1 of Schedule 2 to the Bill will
commence on a day to be proclaimed, or six months after Royal Assent, whichever
comes first.
Part 2—Amendment of the Legislative
Instruments Act 2003
Items 3 and 4 amend section 9 of the Legislative
Instruments Act 2003 and its accompanying note.[20]
Section 9 provides that rules of court for the High Court, the Federal Court of
Australia, the Family Court of Australia and the Federal Circuit Court of
Australia are not legislative instruments. The amendments remove the references
to these specific courts to clarify that all rules of court are not legislative
instruments, regardless of the court administering those rules. The note is amended
by replacing ‘are’ with ‘may be’, so that it reads ‘rules of court may be
treated as if they were legislative instruments by express amendment of the
legislation providing for them to be made’. The Explanatory Memorandum explains
that the amendment ‘updates the drafting of the note to reflect that the
enabling legislation for all rules of court may not necessarily treat rules of
court as if they were legislative instruments’.[21]
Part
3—Amendment of the Legislation Act 2003
As set out above, the content of section 9 of the Legislative
Instruments Act 2003 will be reflected in paragraph 8(8)(d) of the Legislation
Act 2003 when the latter Act commences. Part 3 of Schedule 2 of the Bill
therefore amends proposed paragraph 8(8)(d) of the Legislation Act 2003 to
reflect the amendments made to section 9 of the Legislative Instruments Act
2003 by Part 2 of that Schedule. Accordingly, item 5 repeals proposed
paragraph 8(8)(d) of the Legislation Act 2003 to remove references
to specific courts, instead providing that rules of court generally are not
legislative instruments.
The current note to subsection 8(8) of the Legislation
Act 2003 states that ‘rules of court are registered’ under that Act.
Item 6 repeals and replaces the note to clarify that ‘rules of court may
be registered’—that is, there is no requirement for them to be registered.
As Parts 2 and 3 of Schedule 2 make
equivalent amendments to the Legislative Instruments Act 2003 and its
replacement, the Legislation Act 2003, the amendments in Part 2 will not
be needed if they do not commence before the Legislation Act 2003 comes
into force. In that circumstance, Part 2 will not commence at all and Part 3
will commence at same time as Part 1 of Schedule 2 to the Bill, or immediately
after the commencement of the Legislation Act 2003, whichever is later.
Part 1—Amendments
Section 14 of the Legislative Instruments Act 2003 provides
that a legislative instrument may apply, adopt or incorporate material that is
set out in Act or another legislative instrument. (This is referred to as
‘incorporation by reference’.) Section 46AA of the Acts Interpretation Act
1901 is an equivalent provision, which applies to incorporation of material
into instruments that are not legislative instruments.[22]
The Reform Act proposed amendments to section 14 of the Legislative Instruments
Act 2003 and section 46AA of the Acts Interpretation Act 1901.[23]
One of the amendments proposed to add subsection 14(4) to the Legislative
Instruments Act 2003, to allow legislative instruments and notifiable
instruments to authorise or require a form to be used, provided that the form
was a notifiable instrument or was otherwise publicly available.[24]
An equivalent amendment was made to section 46AA of the Acts Interpretation
Act 1901.[25]
Items 2 and 3 of Schedule 3 to the Bill repeal
and substitute proposed subsection 14(4) the Legislative Instruments Act
2003 and proposed subsection 46AA(4) of the Acts Interpretation
Act 1901. The amendments provide that although instruments may provide for
forms to be used, the general rules expressed in those sections will not apply
to forms. The Explanatory Memorandum notes:
... that instruments may effectively incorporate forms, whether
or not those forms are themselves required to be made publicly available.
Because forms are administrative frameworks for the provision of information,
and do not contain substantive legal content, it is not necessary that the
forms themselves be made publicly available.[26]
Items 170 and 178 of Schedule 1 to the Reform Act
set out how the amendments to section 14 of the Legislative Instruments Act
2003 and section 46AA of the Acts Interpretation Act 1901 would
apply. These items are no longer needed and are repealed by items 1 and 2
of Schedule 3 to the Bill.
Part 2—Application of amendments
applying to forms
Item 6 of Schedule 3 to the Bill provides that the
amendments to sections 46AA of the Acts Interpretation Act 1901 and
section 14 of the Legislation Act 2003 will apply to forms made before,
on or after the commencement of the Schedule, whether the instrument providing
for the form to be used is made before, on or after that commencement.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. Acts and Instruments
(Framework Reform) Act 2015, accessed 4 August 2015.
[2]. Explanatory
Memorandum, Acts and Instruments (Framework Reform) Bill 2014, p. 3, accessed
4 August 2015.
[3]. Ibid.,
p. 5.
[4]. Ibid.,
p. 3.
[5]. Legislative
Instruments Act Review Committee, 2008
review of the Legislative Instruments Act 2003, [Attorney-General’s
Department], Canberra, March 2009, accessed 4 August 2015.
[6]. Explanatory
Memorandum, Acts and Instruments (Framework Reform) Bill 2014, op.
cit., p. 2.
[7]. Ibid.
[8]. D
Spooner, Acts
and Instruments (Framework Reform) Bill 2014, Bills digest, 70, 2014–15,
Parliamentary Library, Canberra, 2015, accessed 4 August 2015.
[9]. M
Keenan, ‘Second
reading speech: Acts and Instruments (Framework Reform) (Consequential
Provisions) Bill 2015’, House of Representatives, Debates, 25 June
2015, p. 7583, accessed 25 July 2015.
[10]. Senate
Standing Committee for the Selection of Bills, Report,
9, 2015, The Senate, 13 August 2015, accessed 14 August 2015.
[11]. Senate
Standing Committee for the Scrutiny of Bills, Alert
digest, 7, 2015, The Senate, 12 August 2015, p. 2, accessed 14 August
2015.
[12]. M
Dreyfus, ‘Second
reading speech: Acts and Instruments (Framework Reform) Bill 2014’, House
of Representatives, Debates, 2 December 2014, p. 13892, accessed 4
August 2015.
[13]. Explanatory
Memorandum, Acts and Instruments (Framework Reform) (Consequential
Provisions) Bill 2015, p. 3, accessed 6 August 2015.
[14]. The
Statement of Compatibility with Human Rights can be found at pages 4–5 of the
Explanatory Memorandum to the Bill.
[15]. Parliamentary
Joint Committee on Human Rights, Twenty-fifth
report of the 44th Parliament, 11 August 2015, p. 1, accessed 14 August
2015.
[16]. Explanatory
Memorandum, Acts and Instruments (Framework Reform) (Consequential Provisions)
Bill 2015, op. cit., p. 2.
[17]. Intellectual Property
Laws Amendment Act 2015, accessed 14 August 2015. Schedule 4 of that
Act will commence on proclamation. However, if the Schedule does not commence
by 25 February 2017, it is automatically repealed.
[18]. Family Law Act 1975,
section 123, accessed 5 August 2015.
[19]. Explanatory
Memorandum, Acts and Instruments (Framework Reform) (Consequential Provisions)
Bill 2015, op. cit., p. 135. See subsection 81(3) of the Federal Circuit Court
of Australia Act 1999; subsection 59(4) of the Federal Court of
Australia Act 1976; and subsection 86(2) of the Judiciary Act 1903
(all accessed 14 August 2015).
[20]. Legislative Instruments
Act 2003, accessed 17 August 2015.
[21]. Explanatory
Memorandum, Acts and Instruments (Framework Reform) (Consequential Provisions)
Bill 2015, op. cit., p. 136.
[22]. Acts Interpretation Act
1901, accessed 17 August 2015.
[23]. Section
14 of the Legislative Instruments Act 2003 will be amended by items 21
to 25 of Schedule 1 to the Reform Act. Section 46AA of the Acts
Interpretation Act 1901 will be amended by items 112 to 116 of Schedule 1
to the Reform Act.
[24]. Item
25 of Schedule 1 to the Reform Act
[25]. Item
115 of Schedule 1 to the Reform Act
[26]. Ibid.,
pp. 138–139.
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