1.1
On 25 November 2021, the Senate referred the Statute Law Amendment (Prescribed Forms) Bill 2021 to the Legal and Constitutional Affairs Legislation Committee for inquiry and report by 11 February 2022. On 1 December 2021 the committee's reporting date was extended to 28 February 2022.
1.2
The referral followed a recommendation of the Senate Standing Committee for the Selection of Bills (the Selection of Bills Committee). An appendix to the report of the Selection of Bills Committee reasoned that the bill be referred because ‘the bill would make changes to dozens of significant and often complex Acts’ and it ‘is important to fully understand the impact of any changes made to those statutory regimes, whether intended or not’.
Conduct of this inquiry
1.3
Details of the inquiry were advertised on the committee's webpage. The committee also invited a number of organisations and individuals to submit. No submissions were received. The committee has conducted this inquiry by examining the explanatory memorandum to the bill and the bill itself.
Purpose of the bill
1.4
The explanatory memorandum to the bill explains that the purpose of the bill is to ‘to reduce the number of provisions on the statute book that require the use of forms that are prescribed by regulations’ and ‘enhance administration and promote consistency across the Commonwealth statute book’.
1.5
The bill would affect 41 Commonwealth Acts and subordinate instruments that require specified information to be provided to the government, published by the government, or notified by the government through a particular form.
1.6
As described in the explanatory memorandum, it is important for some forms to have formatting and content requirements set out in an Act or Regulations, such as when:
the form is for a warrant, summons, oath or affirmation or examination notice;
the context involves the courts, military discipline or the investigation of offences; or
the form is under Corporations legislation, family law, Fair Work legislation, a Commonwealth-State scheme or legislation relying on a referral of power.
1.7
The explanatory memorandum notes that requiring forms to be prescribed by regulations has been the standard, formulaic response for the provision of information to administrators. However, this has created inefficiency by requiring further regulations to be made before those forms can be updated or significantly improved. As a result, drafting modern legislation requires careful consideration about whether each specific form must be prescribed or whether the situation might be dealt with using another approach.
1.8
The bill therefore seeks to bring affected Acts and regulations in the Commonwealth statute book into line with modern drafting practices.
Operation of the bill
1.9
The bill contains one schedule that would amend provisions in various Acts to replace forms prescribed by regulations with other best practice approaches, such as:
empowering regulations to directly mandate the requirements themselves; and
empowering ministers and other senior decision-makers to approve forms via notifiable instruments.
1.10
Illustrative examples include:
Item 78 would amend the Insurance Acquisitions and Takeovers Act 1991 to remove the requirement for a form prescribed by a regulation and replace it with a form that can be approved via notifiable instrument by the Australian Prudential Regulation Authority (APRA) for purposes of a provision of the Act.
Item 103 would amend the Migration Act 1958 to allow the requirement for an identity card to be met through a form approved by the Minister, as opposed to a form provided for under a regulation.
1.11
The explanatory memorandum states that the amendments would ensure oversight of the information to be provided while enabling its flexible delivery, allowing an agile response to updating and improving forms. The explanatory memorandum further states that the amendments are 'minor in nature' and 'either make no change or only minor changes to the substance of the law'.
1.12
In her second reading speech, the Minister for Families and Social Services, Minister for Women’s Safety, Senator Ruston, noted that Statute Law Revision Acts and Statute Stocktake Acts have been passed regularly since 1934 to remove obsolete provisions in the statute book and remove mistakes in drafting, and that 'these ongoing improvements to legislation are important to ensure that the Commonwealth statute book remains up-to-date, accurate and user-friendly'.
1.13
The bill also seeks to make 'minor consequential and technical amendments to the statute law of the Commonwealth to support the operation of the amended provisions', including application provisions clarifying when the requirement to use the prescribed forms ceases.
Consideration by other committees
1.14
Neither the Senate Standing Committee for the Scrutiny of Bills nor the Parliamentary Joint Committee on Human Rights have commented on the bill.
Financial impact
1.15
The explanatory memorandum states that the bill would have no financial impact.
Committee view
1.16
The committee is pleased to see that the amendments proposed by the bill would enhance administration and promote consistency across the Commonwealth statute book.
1.17
The committee considers the impact of changes made to the statute law affected by the bill are minor in nature and would not alter the substance of the law.
1.18
For these reasons, the committee believes that the bill should be passed.
1.19
The committee recommends that the bill be passed.
Senator the Hon Sarah Henderson
Chair