Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Honourable George Brandis QC)Notes on Clauses
Clause 1 - Short title
1. Clause 1 provides for the short title of the Act to be the Statute Update Act 2016.
Clause 2 - Commencement
2. Clause 2 provides for the whole of the Act to commence on the 28th day after the Act receives the Royal Assent.
Clause 3 - Schedules
3. Clause 3 provides that each Act specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule and any other item in a Schedule has effect according to its terms. This is a technical provision to give operational effect to the amendments contained in the Schedules.
Schedule 1 - References to dollar penalties
4. Current Commonwealth drafting practice is to express penalties for criminal offences as a number of penalty units. The current value of a penalty unit is $180 (see section 4AA of the Crimes Act 1914). However, many older Commonwealth Acts contain references to penalties that are expressed as an amount in dollars. Section 4AB of the Crimes Act 1914 has the effect that if a provision refers to a penalty in dollars, this is converted into a reference to a penalty of a certain number of penalty units (by dividing the number of dollars by 100, and rounding up to the next whole number if necessary), which leads to a higher penalty than is stated in the provision.
5. For example, if an offence provision has set out at its foot a penalty of $10,000, this is converted into a reference to a penalty of 100 penalty units, which is currently $18,000. Similarly, if a regulation-making power authorises the regulations to prescribe penalties not exceeding $5,000 for offences against the regulations, the effect of section 4AB of the Crimes Act 1914 is that any penalties prescribed must not exceed 50 penalty units, which is currently $9,000.
6. Converting references to dollar penalties under section 4AB of the Crimes Act 1914 is time consuming for the community and the appearance of dollar amounts on the face of the statute book that are less than the actual legal penalty can be misleading. The items in this Schedule convert existing references to penalties expressed as a number of dollars into references to penalties expressed as a number of penalty units to remove the need to convert the amounts and reduce the potential for confusion.
7. In updating the references to dollar penalties, some of the items in this Schedule also omit "maximum penalty" and replace it with "penalty" in accordance with current Commonwealth drafting practice (see also Schedule 2).
8. Section 4D of the Crimes Act 1914 has the effect that where a penalty is set out at the foot of a section that is divided into subsections, a separate offence with that same penalty is created for contravening each of those subsections. In updating the references to dollar penalties in sections of that kind, some of the items also clarify which of the subsections the penalty applies to.
Schedule 2 - References to "maximum penalty"
9. The items in this Schedule replace references to "Maximum penalty" in relation to a criminal offence with references to "Penalty" and also repeal any special interpretive provisions related to the references to "Maximum penalty". This accords with current Commonwealth drafting practice. Section 4D of the Crimes Act 1914 already provides that a penalty in relation to a criminal offence is a maximum penalty.
10. The Schedule also makes minor changes consequential on replacing references to "Maximum penalty".
11. Section 4D of the Crimes Act 1914 has the effect that where a penalty is set out at the foot of a section that is divided into subsections, a separate offence with that same penalty is created for contravening each of those subsections. In updating the references to "Maximum penalty" in sections of that kind, some of the items also clarify which of the subsections the penalty applies to.
12. In updating the reference to "Maximum penalty" in the second subsection 21(2) in the Defence Reserve Service (Protection) Act 2001, the opportunity has also been taken to fix the numbering of that subsection.
Schedule 3 - Prima facie evidence provisions
13. Many Commonwealth Acts contain provisions that facilitate the proof of a matter by providing that a certificate (or other instrument or register) stating the matter is to be evidence of the matter. Current Commonwealth drafting practice is to include a provision stating that the certificate (or other instrument or register) is either conclusive or prima facie evidence of the matters stated in it. The items in this Schedule amend several provisions that deal with the evidentiary status of a certificate (or other instrument or register) to clearly provide that it is prima facie evidence of the matters stated in it.
Schedule 4 - References to aircraft registered in accordance with the Civil Aviation Regulations 1998
14. The 4 Acts amended by this Schedule refer to aircraft registered in accordance with the Civil Aviation Regulations as an Australian aircraft or refer to aircraft registered, or required to be registered, under or in accordance with the Civil Aviation Regulations or the Civil Aviation Safety Regulations 1998 as an Australian aircraft.
15. Recent drafting practice is to avoid referring to particular regulations by name, which reduces the risk of reader confusion and error in cases where the names or contents of the regulations change. Recent drafting practice is to also avoid referring to registration of aircraft as an Australian aircraft, since regulations made under the Civil Aviation Act 1988 do not provide for this concept.
16. Consistent with the amendments made by the Statute Law Revision Act 2012, the items in this Schedule update the 4 Acts so that they follow the more recent drafting practice of referring to regulations made under the Civil Aviation Act 1988 and of not referring to registration of aircraft as an Australian aircraft.