Replacement Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)
Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Acts and Instruments (Framework Reform) Bill 2014
This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
An overview of measures in the Bill and their human rights implications is below.
Overview of the Bill
The Bill makes a number of amendments to improve the operation and clarity of legislative frameworks for Commonwealth Acts and instruments, to create administrative efficiencies across government, and enhance the public accessibility of Commonwealth laws.
This Bill 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 2003. Commonwealth Acts and instruments will be within a single authoritative repository, the Federal Register of Legislation. This 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.
The Bill establishes a new category of instruments called notifiable instruments, which will be able to be registered in authoritative form. This new category of instrument is designed to cover instruments that are not appropriate to register as legislative instruments, but for which public accessibility and central management on the Register is desirable.
The Bill amends the Acts Interpretation Act to clarify provisions relating to references to Ministers, Departments and other government authorities, and to broaden and strengthen existing provisions relating to machinery of government changes.
Human rights implications
The following statement considers the human rights implications of the Bill. Further consideration of these implications will be needed if another Bill proposes to override parts of this Bill. They will need to be considered specifically and in context.
The Bill engages the following human right, the prohibition on retrospective criminal laws, and promotes prescription by law when a proposal may affect or limit the rights of individuals.
The prohibition on retrospective criminal laws
Article 15 of the International Covenant on Civil and Political Rights creates a prohibition on retrospective criminal laws. This is considered to be an absolute right and it is not permissible to limit this right.
This right provides that laws must not impose criminal liability for acts that were not criminal offences at the time they were committed. This flows from the principle that the criminal law should be sufficiently precise to enable persons to know in advance whether their conduct would be criminal. An offence should be given retrospective effect only in rare circumstances and with strong justification.
The Legislative Instruments Act is an Act of general application and protects against any type of retrospective legislative instrument, or provision of a legislative instrument, to the extent that it may adversely affect a person.
Existing subsection 12(2) of the Legislative Instruments Act provides that a legislative instrument or a provision of a legislative instrument has no effect if it commences before the date it is registered and would adversely affect the rights or liabilities of a person (other than the Commonwealth). However, it is possible for an empowering Act to displace the effect of subsection 12(2) by an express statement in that Act (under subsection 12(3)).
The effect of this provision is that even when a single person is adversely affected by the retrospective law, the legislative instrument has no effect at all, including for those who may be positively impacted by the retrospective law. It would also have no prospective application.
The policy rationale underlying the operation of subsection 12(2) is that, in the absence of a statutory intent to the contrary, a person should not be adversely affected by the retrospective operation of a law. To achieve this objective, the retrospective instrument or provision of an instrument need only be rendered ineffective to the extent that it would adversely affect a person, rather than be rendered ineffective for all persons and for all time.
To meet this policy objective, the Bill amends subsection 12(2) of the Legislative Instruments Act (which will be renamed the Legislation Act 2003 in this Bill) to provide that an instrument or a provision of an instrument that applies retrospectively is of no effect only to the extent that it retrospectively adversely affects the rights or liabilities of a person other than the Commonwealth. This will preserve the retrospective operation of the instrument or provision to the extent it positively impacts on a person, and enable its prospective operation.
Generally, Commonwealth offences are provided in an Act to ensure a high level of parliamentary scrutiny and accountability. However, it is possible that offences be placed in instruments, preferably in regulations or other legislative instruments that are subject to parliamentary disallowance procedures. This provides an additional layer of scrutiny and accountability.
Importantly, this Bill will retain the protection provided by the existing provisions of the Legislative Instruments Act to ensure that where criminal laws are made through legislative instruments, individuals will be protected from criminal liability for acts that were not criminal offences at the time they were committed. Further, the Act provides that this can only be displaced by an empowering Act.
This provides an important safeguard against the application of retrospective criminal laws without appropriate parliamentary oversight and scrutiny to ensure any limitations on this right are reasonable, necessary and proportionate.
Prescription by law
The existing provisions of the Legislative Instruments Act and the amendments made by this Bill help ensure that laws are publicly accessible and consistently available so that individuals are able to understand their rights and obligations at law.
Existing section 14 of the Legislative Instruments Act provides that a legislative instrument can incorporate some or all of another document without having to reproduce the text of that document. This means that the content of the document becomes part of the law. The enabling legislation (an Act or legislative instrument) must provide for this. This is consistent with the principle of ensuring that any measure that seeks to limit rights must have a clear legal basis. Documents that can be incorporated include Commonwealth Acts, disallowable legislative instruments or other written instruments.
Commonwealth Acts and disallowable instruments may be incorporated 'as in force from time to time' to enable legislative instruments to remain up-to-date. Documents which are not Acts or disallowable legislative instruments can only be incorporated in the form that exists as at the date of incorporation, unless the enabling legislation provides that they may be incorporated from 'time to time'.
The Bill enables a notifiable instrument to incorporate documents by reference with the same limitations that already apply to legislative instruments.
Incorporation by reference should be limited to circumstances where the documents being incorporated are publicly available for free or at a minimal cost. It is a fundamental principle of the Legislative Instruments Act, and of 'access to justice', that people are easily able to understand their rights and obligations at law. It follows that documents that are incorporated as law must be as easy to access as legislation and legislative instruments. This is also consistent with human rights principles.
The Bill provides that a legislative instrument or a notifiable instrument may authorise or require a form, as in force from time to time, to be incorporated by reference. This is a substantive change and provides an exception to the rules in section 14. The form must be a notifiable instrument (which means it must be registered) or be required to be made publicly available in another specified way. This exception is appropriate because forms do not contain substantive legal content. Instead, they are frameworks for the provision of information required for administrative processes. For this reason, this Bill will not interfere with the protection already available which ensures that individuals are able to readily access the law.
Conclusion
While this Bill is compatible with human rights, an individual assessment will be required for each Bill that proposes to displace subsection 12(2) of the Legislation Act, in order to determine its compatibility with human rights. Similarly, an individual assessment will be required for each legislative proposal that seeks to incorporate another document by reference. This is important as the documents being incorporated by reference may have the effect of limiting the rights of individuals.
This framework will afford additional protections, by ensuring an appropriate level of Parliamentary oversight of proposed laws that may limit or interfere with human rights.