House of Representatives

Explanatory Memorandum

Circulated By Authority of the Hon Robert Mcclelland MP, Attorney-General

Schedule 1 - Amendment of principal Acts

22 The items in this Schedule amend errors contained in principal Acts.

Item 1

23 Subparagraph (d)(ii) of the definition of exploration licence in subsection 3(1) of the Aboriginal Land Rights (Northern Territory) Act 1976 contains a typographical error. This item corrects that subparagraph so that it reads "if subparagraph (i) does not apply", rather than "if subparagraph (paragraph (i) does not apply".

Item 2

24 This item is consequential on item 6.

Items 3 and 4

25 Note 2 at the end of subsection 15(2) of the AusCheck Act 2007 refers readers to subsection 13(3) of the Legislative Instruments Act 2003 , which deals with prescription of matters by class. However, subsection 15(2) does not allow any matters to be prescribed, so the note is redundant. Item 4 repeals the note and item 3 is an amendment consequential on item 4.

Item 5

26 Section 11 of the Banking Act 1959 contains 2 subsections (5). This item renumbers the subsection (5) that was added to section 11 by item 3 of Schedule 4 to the Financial Sector Legislation Amendment (Review of Prudential Decisions) Act 2008 as subsection (7).

Heading to section 97 of the Broadcasting Services Act 1992

27 The Competition Policy Reform Act 1995 established the Australian Competition and Consumer Commission, which replaced the Trade Practices Commission. A consequential amendment was required to the heading to section 97 of the Broadcasting Services Act 1992 to reflect this change, however the consequential change was not made. The note appearing after item 5 corrects the heading.

Item 6

28 Section 3 of the Civil Aviation Act 1988 is not divided into subsections. This amendment removes the redundant subsection number (1).

Item 7

29 Item 22 of Schedule 2 to the Classification (Publications, Films and Computer Games) Amendment Act 2007 inserted subsection 91(1A) into the Classification (Publications, Films and Computer Games) Act 1995 . The last line of the subsection was incorrectly indented so that it applied to the whole subsection. It was only intended to apply to paragraph (c) of that subsection. This amendment corrects that indentation.

Item 8

30 Paragraph (c) of the cell in the column headed "Circumstances in which information is to be given" of table item 13 in subsection 90B(1) of the Commonwealth Electoral Act 1918 refers to the Senator not being entitled to a copy of a list under item 11 of that table. However, it is a member of the House of Representatives who is to be given information under table item 13. This item amends the reference so that it refers to "the member" rather than "the Senator".

Item 9

31 Section 171 of the Commonwealth Electoral Act 1918 refers to a declaration referred to in subparagraph 170(a)(ii). However, it is paragraph (1)(b) that mentions a declaration. This item amends section 171 so that it refers to paragraph 170(1)(b) rather than subparagraph 170(a)(ii).

Item 10

32 Subsection 265(2) of the Commonwealth Electoral Act 1918 incorrectly refers to the "opinion of the assistant Returning Officer". As the provision for the appointment of Assistant Returning Officers (section 33) uses initial capital letters for the title, and all other occurrences in the Act also do so, this item amends that subsection so that it refers to the "Assistant Returning Officer".

Item 11

33 Subsections (2) and (3) of section 314AA of the Commonwealth Electoral Act 1918 were repealed by the Commonwealth Electoral Amendment Act 1995 , leaving only the text of subsection (1). This amendment removes the redundant subsection number (1).

Item 12

34 Subsection 314AA(1) of the Commonwealth Electoral Act 1918 contains 2 occurrences of the word "or". This item omits the second of those occurrences.

Item 13

35 Subsection 318(2) of the Commonwealth Electoral Act 1918 refers to the Electoral Commissioner having been informed under paragraph (3)(c). That paragraph relates to only one aspect of a written notice that is given under subsection (3). This item corrects that cross-reference to refer to subsection (3), instead of paragraph (3)(c).

Item 14

36 Subsection 390A(1) of the Commonwealth Electoral Act 1918 refers to a warrant issued under section 10 of the Crimes Act 1914 . Section 10 of the Crimes Act 1914 was repealed in 1994. Subsection 390A(1) should refer to section 3E of the Crimes Act 1914 . This item corrects the incorrect cross-reference.

Item 15

37 Section 480.4 of the Criminal Code creates an offence for dishonestly obtaining or dealing in personal financial information. Section 480.6 of the Criminal Code is intended to create an offence for importing a thing into Australia with the intention that the thing be used in committing the offence of dishonestly obtaining or dealing in personal financial information under section 480.4, however paragraph 480.6(b) incorrectly refers to section 480.3 (which deals with the constitutional application of Part 10.8 of the Criminal Code and does not create any offence). This item corrects the cross-reference.

Item 16

38 Paragraph 11(1)(b) of the Customs Act 1901 refers to the performance of functions under "that Subdivision". No particular Subdivision is referred to in that paragraph. On its face, the reference will be a reference to the Subdivision of that Act mentioned in the preceding paragraph, that is, Subdivision DA of Division 1 of Part XII. No functions are conferred on magistrates under that Subdivision. The cross-reference is instead intended to be a cross-reference to Subdivision C of Division 1B of Part XII of that Act. This item corrects the cross-reference.

Item 17

39 Subsection 64AE(1) of the Customs Act 1901 contains a cross-reference to section 64AC of that Act. Section 64AC was repealed by item 5 of Schedule 6 to the Border Security Legislation Amendment Act 2002 . This item amends subsection 64AE(1) to remove the redundant cross-reference.

Item 18

40 Heading 3202 in Schedule 3 of the Customs Tariff Act 1995 contains a reference to "TANNING PREPARAT1ONS". In the word "PREPARATIONS", the letter "I" is represented by the Arabic numeral "1". This item corrects that typographical error.

Item 19

41 Section 59 of the Defence Force Discipline Act 1982 makes it an offence to sell, deal, traffic or possess a prohibited drug. Under subsection 59(9) of the of that Act, a prohibited drug includes an anabolic steroid within the meaning of Part 5 of the Poisons and Drugs Act 1978 of the Australian Capital Territory.

42 The Poisons and Drugs Act 1978 of the Australian Capital Territory was repealed by the Medicines, Poisons and Therapeutic Goods Act 2008 of the Australian Capital Territory, and the provisions relating to anabolic steroids were included in the Crimes Act 1900 of the Australian Capital Territory, making the cross reference in the Defence Force Discipline Act 1982 incapable of operating. This item corrects the cross reference.

Item 20

43 This item corrects an incorrect cross-reference that resulted from the renumbering of section 129 of the Defence Force Discipline Act 1982 as section 129D by item 73 of Schedule 1 to the Military Justice (Interim Measures) Act (No. 1) 2009 .

Item 21

44 The Military Justice (Interim Measures) Act (No. 1) 2009 reinstated the provisions of the Defence Force Discipline Act 1982 largely as they existed before the enactment of the Defence Legislation Amendment Act 2006 . This item reinstates a reference to section 160 of the Defence Force Discipline Act 1982 that appeared before the enactment of the 2006 amending Act to ensure the correct operation of the reinstated provisions.

Item 22

45 Section 146EA of the Defence Force Discipline Act 1982 was inserted by the Military Justice (Interim Measures) Act (No. 1) 2009 with an incorrect number. In order for the new section to appear in the correct numbering sequence, it should have been numbered as section 148EA. This item corrects the numbering error.

Item 23

46 The Military Justice (Interim Measures) Act (No. 1) 2009 reinstated the provisions of the Defence Force Discipline Act 1982 largely as they existed before the enactment of the Defence Legislation Amendment Act 2006 , but left in place certain provisions (including section 111B), relating to elections, that were inserted by a later amending Act. This item inserts a reference to section 111B to ensure the correct operation of the reinstated provisions.

Item 24

47 Section 188GB of the Defence Force Discipline Act 1982 refers to "the a court martial". This item corrects that typographical error.

Item 25

48 Paragraph 258(3)(d) of the Environment Protection and Biodiversity Conservation Act 1999 applies where the "specified action... are conducted in a way that will, so far as is practicable, keep to a minimum any impact on the listed marine species concerned". This item corrects that grammatical error.

Item 26

49 Item 63 of Schedule 1 to the Evidence Amendment Act 2008 repealed section 128 of the Evidence Act 1995 and substituted a new section 128. Subsection 128(8) was re-enacted in the same terms as subsection 128(10). As a result, the cross-reference to subsection 128(8) in subsection 189(6) of the Evidence Act 1995 is incorrect. This item corrects the cross-reference so that it refers to subsection 128(10), rather than subsection 128(8).

Item 27

50 Item 244 of Schedule 22 to the Fair Work (Transitional Provisions and Consequential Amendments) Act 2009 (the misdescribed amendment ) purported to amend subclause 4(1) of Schedule 10 to the Workplace Relations Act 1996 . However, the text omitted from subclause 4(1) did not exactly match the text in that subclause and the misdescribed amendment could not be made. This item remakes the amendment in a corrected form. Item 6 of Schedule 2 to this Act repeals the misdescribed amendment.

Item 28

51 This item amends paragraph 12G(2)(a) of the Family Law Act 1975 to insert a missing semicolon after the word "information".

Item 29

52 This item amends paragraph 3(2)(b) of the First Home Saver Accounts Act 2008 to insert a missing closing parenthesis after "(3)".

Items 30 and 31

53 Several provisions of the Foreign States Immunities Act 1985 (subsections 24(1), 28(1) and (2) and 40(1) and (2), and the Schedule, Forms 1 and 2) refer to the "Department of Foreign Affairs" and the "Minister for Foreign Affairs". The Department has changed its title since those provisions were enacted, and the actual title of the Minister may change in the future. These items will insert definitions to ensure that the relevant Department or Minister is readily identifiable at any particular time, whilst not being reliant on the actual title of the Department or Minister.

Item 32

54 The words "of the patient concerned" at the end of the definition of excessive diagnostic imaging service in subsection 3(1) of the Health Insurance Act 1973 have been indented incorrectly. These words are only intended to relate to paragraph (b) of that definition. The indenting used for the words indicates, however, that the words relate to the entire definition. This item corrects that indenting.

Item 33

55 The First Home Saver Accounts (Consequential Amendments) Act 2008 made amendments to change the concept "complying superannuation class of taxable income" to "complying superannuation/FHSA class of taxable income" in the Income Tax Assessment Act 1997 . The formula in subsection 210-175(2) also required consequential amendment, however, this amendment was not made. This item makes that consequential amendment.

Item 34

56 Item 34 makes a consequential amendment to subsection 47(1) of the Industry Research and Development Act 1986 to remove a cross-reference to the Industrial Research and Development Incentives Act 1976 , which is being repealed by item 2 of Schedule 3 to this Act.

Item 35

57 Item 7 of the Schedule to the Income Tax (International Agreements) Amendment Act 1995 inserted definitions of the 1960 New Zealand agreement and the 1972 New Zealand agreement after the definition of the Netherlands agreement in subsection 3(1) of the International Tax Agreements Act 1953 (which was then known as the Income Tax (International Agreements) Act 1953 ). This location was incorrect. This item relocates the definitions of the 1960 New Zealand agreement and the 1972 New Zealand agreement in subsection 3(1) of the International Tax Agreements Act 1953 so that they appear in the correct alphabetical location in the list of definitions in the subsection.

Items 36 and 37

58 Subsections 267B(2) and 267Q(2) of the Navigation Act 1912 apply to the carrying out of surveys by a survey authority. The subsections refer to "the authority". Authority (with an upper case "A") is defined by subsection 6(1) of the Act to mean the Australian Maritime Safety Authority. These items amend references in subsections 267B(2) and 267Q(2) from "the authority" to "the survey authority" to avoid confusion with the defined term.

Item 38

59 Item 19 of Schedule 1 to the Offshore Petroleum Amendment (Miscellaneous Measures) Act 2008 omitted and substituted text in (what was then) subsection 142(6) of the Offshore Petroleum Act 2006 (now the Offshore Petroleum and Greenhouse Gas Storage Act 2006 ). The text to be inserted included an additional "the" so that the subsection read "the the application". The Offshore Petroleum Amendment (Greenhouse Gas Storage) Act 2008 provided for the renumbering of the Offshore Petroleum and Greenhouse Gas Storage Act 2006 . Subsection 142(6) became subsection 168(6), however the duplicated "the" remained. This item corrects the duplication.

Item 39

60 Subparagraph 24(2)(a)(i) of the Patents Act 1990 applies to information given to "the Commonwealth or a State or Territory, or an authority of the Commonwealth of a State or Territory". This item corrects that error.

Item 40

61 Schedule 1 to the Plant Breeder's Rights Act 1994 sets out the International Convention for the Protection of New Varieties of Plants. Subparagraph (1)(a)(ii) of Article 14 of that Convention reads "conditioning for the purpose of propagation". The text as set out in Schedule 1 does not accord with the text of the actual agreement. This item corrects that error.

Item 41

62 A comma was included at the end of the text being inserted into paragraph 31(1)(a) of the Radiocommunications Act 1992 by item 148 of Schedule 1 to the Broadcasting Legislation Amendment (Digital Radio) Act 2007 , which resulted in double punctuation. This item removes the double punctuation.

Items 42 to 44

63 Subsections 107(2), 108(4) and 109(2) of the Radiocommunications Act 1992 refer to paragraph 111(a) of that Act. However, section 111 contains more than 1 subsection that contains paragraphs. The cross-references should be to paragraph 111(1)(a). These items correct the cross-references.

Item 45

64 The definition of liquid assets in subsection 549C(2) of the Social Security Act 1991 refers to "the day referred to in subparagraph 549A(4)(a)(i) or (ii)". However, it is subparagraph 549A(1)(a)(i) or (ii) of that Act which mentions the relevant days. This item amends the definition of liquid assets in subsection 549C(2) to correct the cross-reference.

Item 46

65 The note to subsection 595(3) of the Social Security Act 1991 refers to section 45 of the Employment Services Act 1994 . The Employment Services Act 1994 was repealed by item 1 of Schedule 4 to the Financial Framework Legislation Amendment Act (No. 1) 2006 . As a result, the note is redundant. This item removes that note.

Item 47

66 This item removes from subsection 8W(1B) of the Taxation Administration Act 1953 cross-references to Parts of Chapter 2 of the Development Allowance Authority Act 1992 . That Chapter was repealed by item 47 of Schedule 2 to the Tax Laws Amendment (Repeal of Inoperative Provisions) Act 2006 .

Items 48 to 50

67 These items amend provisions of the Telecommunications (Interception and Access) Act 1979 to add conjunctions at the end of a number of the paragraphs and subparagraphs of subsection 35(1) of that Act for consistency with current drafting practice.

Item 51

68 Paragraph 35(1)(b) of the Telecommunications (Interception and Access) Act 1979 was repealed by item 15 of Schedule 1 to the Telecommunications (Interception and Access) Amendment Act 2008 . This item removes the cross-reference to that paragraph in subparagraph 35(1)(k)(ii) of the Telecommunications (Interception and Access) Act 1979 .

Item 52

69 Paragraph 80(b) of the Telecommunications (Interception and Access) Act 1979 used to refer to paragraph 53(1)(b) of that Act. Section 53 of that Act was replaced by a new section 59A by item 27 of Schedule 1 to the Telecommunications (Interception and Access) Amendment Act 2008 . The latter Act also amended the cross-reference to section 53 in paragraph 80(b), so that it refers to new subsections 59A(2) and (3). Parliament did not enact proposed subsection 59A(3), however. This item fixes the cross-reference in paragraph 80(b) accordingly.

Items 53 to 252

70 It has been Commonwealth practice since the early 1980s for legislation to be drafted to avoid the use of gender-specific language. Exclusive references to one or another gender are not permitted, except in the case of legislation intended to apply to people of one sex but not the other (for example, maternity leave legislation).

71 While paragraph 23(a) of the Acts Interpretation Act 1901 provides that words importing a gender include every other gender, existing statutory provisions that use gender-specific language have been progressively amended so as to replace such language with gender-neutral language. The use of gender-neutral language in Acts is intended to make them more inclusive.

72 Items 53 to 252 amend the Tradesmen's Rights Regulation Act 1946 to replace gender-specific language with gender-neutral language.

73 These items also make minor changes to spelling and expression to ensure the provisions accord with current drafting style. These changes are as follows:

(a)

change of expression to avoid the use of "shall" in accordance with current drafting practice;

(b)

expression of dates in Arabic numerals, rather than words;

(c)

spelling "authorize" (and its other grammatical forms) with an "s", instead of a "z";

(d)

spelling "recognize" (and its other grammatical forms) with an "s", instead of a "z";

(e)

including conjunctions at the end of each paragraph in a list.

74 Where possible, paragraphs have been re-lettered so that they appear in regular alphabetical sequence. Items 156, 196 and 209 update existing cross-references in the Act that refer to paragraphs that have been re-lettered by items in this Schedule. Item 229 makes an amendment consequential on the enactment of the Fair Work Act 2009 .

75 In addition, the Act is amended to remove references to section 43, which was repealed by Schedule 1 to the Statute Law Revision Act 1973 .

76 Item 252 is a transitional provision included to ensure that the amendments made by this Act do not affect the validity or effectiveness of a certificate that was granted under the Tradesmen's Rights Regulation Act 1946 before the commencement of the amendments.

Item 253

77 The definitions of type A funeral investment and type B funeral investment in the Veterans' Entitlements Act 1986 were repealed by items 12 and 13 of Schedule 4 to the Families, Community Services and Indigenous Affairs Legislation Amendment (Further 2007 Budget Measures) Act 2007 . This item removes them from the index of definitions in the Veterans' Entitlements Act 1986 .

Items 254 and 255

78 Subsection 118NH(2A) of the Veterans' Entitlements Act 1986 was inserted by item 70 of Schedule 1 to the Veterans' Affairs Legislation Amendment (2007 Measures No. 1) Act 2007 . This item commenced on 22 June 2007. An additional subsection 118NH(2A) was inserted into section 118NH by item 88 of Schedule 1 to the Families, Community Services and Indigenous Affairs Legislation Amendment (Further 2007 Budget Measures) Act 2007 , which commenced on 1 January 2008. These items correct the duplication by renumbering the earlier-inserted occurrence of subsection (2A) as subsection (2B) and amending the cross-reference to the renumbered subsection in subsection 118NH(3).

Items 256 and 257

79 These items omit the conjunction "and" from the end of subparagraphs 21(4)(c)(viii) and (ix) of the Water Act 2007 , as the conjunction is redundant.

Item 258

80 Paragraph 26(4)(b) of the Water Act 2007 contains a typographical error. This item corrects that paragraph so that it reads "transfer of", rather than "transfer or".

Item 259

81 Section 18 of the Water Act 2007 was repealed by the Water Amendment Act 2008 . The section was replaced by a new section 250E, which is in the same terms as the repealed section 18. Subsection 38(1) still refers to the repealed section 18. This item corrects the cross-reference.

Item 260

82 Section 15 of the Water Act 2007 was repealed by the Water Amendment Act 2008 . The section was replaced by a new section 250B, which is in the same terms as the repealed section 15. Section 40 still refers to the repealed section 15. This item corrects the cross-reference.

Item 261

83 Subsections 51(10) and 51(5) of the Water Act 2007 have the same effect. This item repeals subsection 51(10) because it is redundant.

Item 262

84 Section 18 of the Water Act 2007 was repealed by the Water Amendment Act 2008 . The section was replaced by a new section 250E, which is in the same terms as the repealed section 18. Subsection 62(1) still refers to the repealed section 18. This item corrects the cross-reference.

Item 263

85 Subsection 68(10) of the Water Act 2007 incorrectly refers to a "water resource plan area located in different Basin State". This item corrects the error by including the omitted indefinite article before "different".

Item 264

86 Paragraph 81(1)(b) of the Water Act 2007 incorrectly refers to "those water resources (or for a part of those waters resources)". This item corrects this typographical error.

Heading to section 184 of the Water Act 2007

87 Section 184 of the Water Act 2007 requires the Chief Executive of the Murray-Darling Basin Authority to keep the Minister informed about various matters. The heading to section 184 misdescribes the effect of the section by mistakenly referring to the Chair of the Authority, rather than the Chief Executive. Note 2 appearing after item 264 corrects the heading.

Item 265

88 The Water Act 2007 contains 2 sections 255A. This item renumbers the section 255A that was inserted by item 161A of Schedule 2 to the Water Amendment Act 2008 as section 255AA.