Explanatory Memorandum
(Circulated by authority of the Attorney-General, Senator the Hon George Brandis QC)General outline
The main purposes of this Bill are to:
- (a)
- correct technical errors that have occurred in laws as a result of drafting and clerical mistakes (see Schedules 1 and 2); and
- (b)
- make clear on the face of an Act that the Crown in right of the Australian Capital Territory and of the Northern Territory is bound and modernise the form of its provision about whether the Crown is liable to be prosecuted for an offence (see Schedule 3); and
- (c)
- modernise language by replacing references to "guilty of an offence" with references to "commits an offence" and replacing references to "reference base" with "index reference period" (see Schedules 4 and 5); and
- (d)
- repeal spent and obsolete provisions, which will result in the repeal of approximately 37 pages of spent and obsolete provisions (see Schedule 6).
The corrections and repeals are desirable in order to improve the quality of the text of Commonwealth legislation and to reduce the regulatory burden by making the statute book clearer and more efficient to use. They facilitate the publication of consolidated versions of Acts by the Commonwealth and by private publishers of legislation.
None of the corrections makes any change to the substance of the law.
Financial impact statement
This Bill will have no financial impact.
Statement of compatibility with human rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Statute Law Revision Bill (No. 3) 2015
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.
Overview of the Bill
The main purposes of this Bill are to correct technical errors that have occurred in laws as a result of drafting and clerical mistakes and to repeal spent or obsolete provisions and Acts.
The corrections and repeals are desirable in order to improve the quality of the text of Commonwealth legislation and, in particular, to facilitate the publication of consolidated versions of Acts by the Commonwealth and by private publishers of legislation.
None of the corrections makes any change to the substance of the law.
Human rights implications
The amendments make technical corrections and technical improvements to legislation. They also repeal spent and obsolete provisions. The amendments improve the ease of administration of legislation and reduce the regulatory burden by making the statute book clearer and more efficient to use. They do not engage any human rights issues.
Conclusion
The 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, as it does not engage any of the applicable rights or freedoms or alter any human rights safeguards currently in place.
Notes on clauses
Clause 1-Short title
1 Clause 1 provides for the Act to be cited as the Statute Law Revision Act (No. 3) 2015.
Clause 2-Commencement
2 Subclause 2(1) provides that each provision of the Act specified in column 1 of the table set out in the subclause commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.
3 The note at the end of the table explains that the table relates only to the provisions of the Act as originally enacted. The table will not be amended to deal with any later amendments of the Act.
4 Subclause 2(2) provides that any information in column 3 of the table is not part of the Act. It also clarifies that information may be inserted in column 3, or information in it may be edited, in any published version of the Act.
5 Items in Schedule 1 to the Bill correct errors in principal Acts. All items in the Schedule commence 28 days after this Act receives the Royal Assent. This is because the "slip rule" will have been applied to each error since the enactment of the erroneous provision. This means that the text of the law will have been taken to have been correct, despite the error.
6 Current Commonwealth drafting practice is to avoid retrospective commencement where practicable. Given the application of the "slip rule", it is appropriate for these amendments to commence soon after Royal Assent. The amendments ensure that the text of the law accords with how it would be interpreted.
7 Other items in Schedule 1 to the Bill relate to removals of redundant text or renumbering of text and it is appropriate that these items commence on the 28th day after the day this Act receives the Royal Assent because they do not change the substantive content of the law.
8 Schedule 2 to the Bill corrects errors in amending Acts. They relate to misdescribed amendments contained in amending Acts. The commencement of items dealing with misdescribed amendments is tied to the time specified in the amending Act for the commencement of the amendment.
9 Schedule 3 to the Bill makes clear on the face of an Act that the Crown in right of the Australian Capital Territory and of the Northern Territory is bound and modernises the form of a provision about whether the Crown is liable to be prosecuted for an offence. The Schedule is to commence prospectively at the later of the start of the day after this Act receives the Royal Assent and immediately after the commencement of Part 1 of Schedule 2 to the Norfolk Island Legislation Amendment Act 2015.
10 Schedule 4 to the Bill modernises terminology in accordance with current drafting practice by changing phrases like "is guilty of an offence" to "commits an offence" or similar phrases. The Schedule is to commence 28 days after this Act receives the Royal Assent.
11 Schedule 5 to the Bill modernises terminology in accordance with current drafting practice by changing "reference base" to "index reference period" The Schedule is to commence 28 days after this Act receives the Royal Assent.
12 Schedule 6 to the Bill repeals spent and obsolete provisions of Acts. The Schedule is to commence 28 days after this Act receives the Royal Assent.
Clause 3-Schedules
13 Clause 3 provides that legislation that is 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 - Amendment of principal Acts
14 The items in this Schedule amend errors contained in principal Acts, remove redundant text from principal Acts or renumber text within principal Acts.
Item 1
15 The Aged Care Act 1997 contains two provisions numbered subparagraph 52F-3(2)(e)(ii). Item 1 renumbers the second subparagraph as subparagraph (iii).
Item 2
16 Subparagraph 52G-2(e)(i) of the Aged Care Act 1997 contains a typographical error as the subparagraph refers to "rules set out this Division" rather than "rules set out in this Division". Item 2 corrects that typographical error.
Item 3
17 Item 3 repeals the redundant definition of capital expenditure in the Dictionary in Schedule 1 to the Aged Care Act 1997. That definition is redundant as it says the term has the meaning given by the repealed subsection 57-17A(2) and the only provisions where that phrase is used in the Act provide an alternative meaning, which is "capital expenditure of a kind specified in the Fees and Payments Principles".
Item 4
18 Paragraph (b) of the definition of protected chemical product in section 3 of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 contains a punctuation error as it refers to "has ended, or will end" rather than "has ended, or will en d,". Item 4 corrects that punctuation error.
Item 5
19 Paragraph (a) of the definition of relevant particulars in section 3 of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 contains an incorrect cross-reference as it refers to paragraph 19(1)(c) of the Code. However, section 19 is not divided into subsections. The correct provision to refer to is paragraph 19(c) of the Code, as it deals with the right topic. Item 5 corrects the cross-reference.
Item 6
20 Subsection 14A(3) of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 contains an incorrect cross-reference as it refers to paragraph 19(1)(a) of the Code. However, section 19 is not divided into subsections. The correct provision to refer to is paragraph 19(a) of the Code, as it deals with the right topic. Item 6 corrects the cross-reference.
Item 7
21 Subsection 34J(5A) of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 contains an incorrect cross-reference as it refers to subsection 3(1) of the Code. However, section 3 is not divided into subsections. The correct provision to refer to is section 3 of the Code, as it deals with the right topic. Item 7 corrects the cross-reference.
Item 8
22 Subparagraph 160A(4)(a)(ii) of the Code set out in the Schedule to the Agricultural and Veterinary Chemicals Code Act 1994 contains an incorrect cross-reference as it refers to paragraph 19(1)(c) of the Code. However, section 19 is not divided into subsections. The correct provision to refer to is paragraph 19(c) of the Code, as it deals with the right topic. Item 8 corrects the cross-reference.
Item 9
23 The Tribunals Amalgamation Bill 2015 (which was enacted as the Tribunals Amalgamation Act 2015) included item 22 of Schedule 5, which purported to amend the A New Tax System (Family Assistance) (Administration) Act 1999 to repeal sections 111A to 118 of that Act and replace them with new sections 111A to 127. A parliamentary amendment was made to item 22 to insert before the proposed new section 112 a proposed new section 111B. However, it also inserted a redundant item 21A heading and redundant amending text into the A New Tax System (Family Assistance) (Administration) Act 1999. Item 9 repeals that redundant item heading and text.
Item 10
24 Subsection 35(3) of the Australian Capital Territory (Planning and Land Management) Act 1988 contains a citation error as it refers to the Remuneration Tribunal s Act 1973. However, it is correct to refer to the Remuneration Tribunal Act 1973, as section 1 of the Remuneration Tribunal Act 1973 states it may be cited that way, following amendments made to that Act by Schedule 2 to the Industrial Relations (Consequential Provisions) Act 1988. Item 10 fixes the citation.
Items 11 and 12
25 Items 11 and 12 repeal the redundant definitions of Bureau and Director in subsection 3(1) of the Australian Nuclear Science and Technology Organisation Act 1987. Those definitions are redundant as those terms are not used in that Act.
Item 13
26 Subsection 23(3) of the Child Support (Registration and Collection) Act 1988 contains an incorrect cross-reference as it refers to subsection 23(1) of the Act. However, that provision is about the wrong topic (when the section applies). The correct provision to refer to is subsection 23(2) of the Act, as it deals with the right topic (giving notice). Item 13 corrects the cross-reference.
Item 14
27 Subsections 28A(2) and (6) of the Child Support (Registration and Collection) Act 1988 contain incorrect cross-references as they refer to paragraph 28(c) of the Act. However, there is no such provision. The correct provision to refer to is paragraph 28(1)(c) of the Act, as item 71 of Schedule 2 to the Families, Community Services and Indigenous Affairs Legislation Amendment (Child Support Reform Consolidation and Other Measures) Act 2007 renumbered section 28 of the Child Support (Registration and Collection) Act 1988 as subsection 28(1). Item 14 corrects the cross-reference.
Item 15
28 Subsection 44(10) of the Child Support (Registration and Collection) Act 1988 contains a typographical error as the subsection refers to an "entry in the Child Support Registrar" rather than an "entry in the Child Support Register". Item 15 corrects that typographical error.
Item 16
29 Subsection 22(3) of the Commonwealth Electoral Act 1918 contains a citation error as it refers to the Remuneration Tribunal s Act 1973. However, it is correct to refer to the Remuneration Tribunal Act 1973, as section 1 of the Remuneration Tribunal Act 1973 states it may be cited that way, following amendments made to that Act by Schedule 2 to the Industrial Relations (Consequential Provisions) Act 1988. Item 16 fixes the citation.
Item 17
30 Subsection 9A(3) of the Commonwealth Grants Commission Act 1973 contains a citation error as it refers to the Remuneration Tribunal s Act 1973. However, it is correct to refer to the Remuneration Tribunal Act 1973, as section 1 of the Remuneration Tribunal Act 1973 states it may be cited that way, following amendments made to that Act by Schedule 2 to the Industrial Relations (Consequential Provisions) Act 1988. Item 17 fixes the citation.
Item 18
31 Subsection 218A(2) of the Customs Act 1901 contains a grammatical error as it refers to "Collector is be taken to have reason to believe" rather than "Collector is taken to have reason to believe". Item 18 corrects that grammatical error.
Item 19
32 Subsection 58Q(4) of the Defence Act 1903 contains a citation error as it refers to the Remuneration Tribunal s Act 1973. However, it is correct to refer to the Remuneration Tribunal Act 1973, as section 1 of the Remuneration Tribunal Act 1973 states it may be cited that way, following amendments made to that Act by Schedule 2 to the Industrial Relations (Consequential Provisions) Act 1988. Item 19 fixes the citation.
Item 20
33 Subsection 6(7) of the Local Government (Financial Assistance) Act 1995 contains a spelling error as it refers to "national principals" being in force under section 6 rather than "national principles". Item 20 corrects that spelling error.
Item 21
34 Paragraph 10(6)(ab) of the Long Service Leave (Commonwealth Employees) Act 1976 contains a citation error as it refers to the Remuneration Tribunal s Act 1973. However, it is correct to refer to the Remuneration Tribunal Act 1973, as section 1 of the Remuneration Tribunal Act 1973 states it may be cited that way, following amendments made to that Act by Schedule 2 to the Industrial Relations (Consequential Provisions) Act 1988. Item 21 fixes the citation.
Item 22
35 The Migration Act 1958 contains two provisions numbered note 2 to subsection 65(1). Item 22 renumbers the note 2 that was inserted by item 13 of Schedule 4 to the Migration and Maritime Powers Legislation Amendment (Resolving the Asylum Legacy Caseload) Act 2014 as note 3.
Item 23
36 Section 6 of the Ministers of State Act 1952 contains a citation error as it refers to the Remuneration Tribunal s Act 1973. However, it is correct to refer to the Remuneration Tribunal Act 1973, as section 1 of the Remuneration Tribunal Act 1973 states it may be cited that way, following amendments made to that Act by Schedule 2 to the Industrial Relations (Consequential Provisions) Act 1988. Item 23 fixes the citation.
Item 24
37 Section 4 of the Parliamentary Allowances Act 1952 contains a citation error as it refers to the Remuneration Tribunal s Act 1973. However, it is correct to refer to the Remuneration Tribunal Act 1973, as section 1 of the Remuneration Tribunal Act 1973 states it may be cited that way, following amendments made to that Act by Schedule 2 to the Industrial Relations (Consequential Provisions) Act 1988. Item 24 fixes the citation.
Item 25
38 Paragraph (f) of the definition of holder of an office of profit under the Commonwealth in subsection 21B(1) of the Parliamentary Contributory Superannuation Act 1948 contains a citation error as it refers to the Remuneration Tribunal s Act 1973. However, it is correct to refer to the Remuneration Tribunal Act 1973, as section 1 of the Remuneration Tribunal Act 1973 states it may be cited that way, following amendments made to that Act by Schedule 2 to the Industrial Relations (Consequential Provisions) Act 1988. Item 25 fixes the citation.
Item 26
39 Note 3 of subsection 53D(1) of the Veterans' Entitlements Act 1986 contains an incorrect cross-reference as it refers to Division 8A of Part III of the Act. However, there is no such Division. The correct provision to refer to is Division 3 of Part IIIB of the Act, as that Division was renumbered as such following a restructure and it deals with the right topic. Item 26 corrects the cross-reference.
Item 27
40 Subsection 196ZE(3) of the Veterans' Entitlements Act 1986 contains a grammatical error as it refers to "the branches of medical science expertise in which would be necessary" rather than "the branches of medical science expertise which would be necessary". Item 27 corrects that grammatical error.
Schedule 2 - Amendments of amending Acts
Items 1 and 2
41 Items 1 and 2 are related. Item 1 of Schedule 8 to the Broadcasting and Other Legislation Amendment (Deregulation) Act 2015 purported to amend section 43C of the Broadcasting Services Act 1992 to repeal subsections 43C(4) to (4C) and insert a new subsection (4). However, the amendment was misdescribed as item 106 of Schedule 2 to the Omnibus Repeal Day (Autumn 2014) Act 2014 had already repealed those subsections, including an existing subsection (4). Items 1 and 2 correct the misdescription.
Item 3
42 Schedule 1 to the Primary Industries Levies and Charges Collection (Consequential Provisions) Act 1991 purported to repeal section 35 of the Primary Industries and Energy Research and Development Act 1989. However, the amendment was misdescribed as the amendment incorrectly cited the Act as the Primary Industries and Energy Research and Development Act 1990. Item 3 corrects the misdescription.
Schedule 3 - Binding the Crown
43 Some provisions of Acts that predate ACT self-government contain provisions binding the Crown in right of the Commonwealth, of each of the States, of the Northern Territory and, in some cases, of Norfolk Island. They do not mention the Australian Capital Territory. There are also provisions of Acts that predate Northern Territory self-government binding the Crown in right of the Commonwealth and of each State. They do not mention the Northern Territory. Some of the provisions go on to say that "nothing in this Act renders the Crown liable to be prosecuted for an offence".
44 Section 69A of the Australian Capital Territory (Self-Government) Act 1988 provides that if an Act (whether or not by express provision) binds each of the States, or the Crown in right of each of the States, that Act binds the Territory, or the Crown in right of the Territory, unless that Act specifically provides otherwise.
45 Section 51 of the Northern Territory (Self-Government) Act 1978 provides that if an Act (whether or not by express provision) binds each of the States, or the Crown in right of each of the States, that Act binds the Territory, or the Crown in right of the Territory, unless that Act specifically provides otherwise
46 This Schedule amends the Child Support (Registration and Collection) Act 1988, to make clear on the face of the Act the legal position that the Crown in right of the Australian Capital Territory and of the Northern Territory is bound.
47 In addition, the Schedule also modernises the form of the associated statement about whether the Crown is liable to be prosecuted for an offence.
Schedule 4 - Guilty of an offence
48 Many Commonwealth Acts contain provisions creating a criminal offence using the expression "A person is guilty of an offence". Current Commonwealth drafting practice is to use the expression "A person commits an offence", which recognises that it is the role of the courts to find persons guilty of an offence. This was acknowledged by Justice Deane in the High Court decision of Polyukhovich v Commonwealth (1991) 101 ALR 545. The items in this Schedule update existing provisions to accord with current Commonwealth drafting practice.
49 Item 332 also remakes subsection 166(3) of the A New Tax System (Family Assistance) (Administration) Act 1999 to modernise the expression of the provision so that instead of stating that nothing in subsection 166(1) or (2) "has the effect that" an officer acting in the performance or exercise of his or her powers, duties or functions under the family assistance law commits an offence rather than stating that nothing in subsection 166(1) or (2) "makes" an officer acting in the performance or exercise of his or her powers, duties or functions under the family assistance law guilty of an offence. Items 338, 428 and 430 make similar modernisations, replacing "renders" with "has the effect that".
50 Other amendments make minor changes to modernise the expression of provisions, such as changing "shall be" to "is" and "deemed" to "is taken to" and to make grammatical corrections.
Schedule 5 - Indexation provisions
51 Many indexation provisions on the statute book that rely on the Consumer Price Index refer to the "reference base" for the Consumer Price Index or other things such as the All Groups Consumer Price Index, the Professional, Scientific and Technical Services Labour Price Index, the Wage Price Index, the Pensioner and Beneficiary Living Cost Index and the GDP deflator. The Australian Bureau of Statistics now prefers the terminology of "index reference period" rather than "reference base". The items in this Schedule continue an ongoing project to make amendments to those indexation provisions to refer to the index reference period. The changes are technical in nature and do not change the legal effect of the provisions.
Schedule 6 - Repeals of spent and obsolete provisions
52 This Schedule contains items that repeal spent and obsolete provisions and make amendments consequential on the repeals.
Item 1
53 Item 1 repeals the redundant section 38 of the Australian Meat and Live-stock Legislation (Consequential Amendments and Transitional Provisions) Act 1985. That section is redundant as it related to the preparation of a final report. The report was laid before Parliament on 12 February 1986. Section 38 is therefore redundant.
Item 2
54 Item 2 repeals the redundant clause 76 of Schedule 2 to the Dairy Produce Act 1986. That clause is redundant as it required a review to be conducted during the 2002-2003 financial year and for copies of a report of the review to be laid before each House of the Parliament. The review was published on 22 November 2002 and the copies were laid before the Houses on 12 December 2002 and 5 February 2003. Clause 76 is therefore redundant.
Item 3
55 Item 3 repeals the redundant section 45 of the Do Not Call Register Act 2006. That section is redundant as it required a review to be conducted before the end of the period of 3 years after the commencement of that section, or as soon as practicable after the end of that period and for copies of a report of the review to be tabled in each House of the Parliament. Section 45 commenced on 31 May 2007. The review concluded in May 2010 and the copies were tabled on 29 September 2010. Section 45 is therefore redundant.
Items 4 and 5
56 Items 4 and 5 repeal the spent section 12A of, and redundant Schedule 1 to, the Social Security (International Agreements) Act 1999. Section 12A and Schedule 1 are both spent as their only legal effect in the past was to preserve the effect of the Agreement between Australia and the United Kingdom on Social Security (the Agreement) for people arriving in Australia prior to 1 March 2000 (the date notice of termination was given to the United Kingdom Government) and for those who claimed or were being paid under the Agreement prior to its termination on 1 March 2001. The Agreement assisted people to meet the Australian residence requirements for qualification for specified social security payments under the Social Security Act 1991. By 1 March 2011, section 12A and Schedule 1 no longer had any substantive legal effect as all those who became Australian residents prior to the date notice of termination was served, or who were receiving or had claimed under the Agreement prior to termination, would have acquired, if necessary, 10 years Australian residence in their own right and would have qualified under domestic legislation.
Item 6
57 Item 6 repeals the redundant section 46 of the Spam Act 2003. That section is redundant as it required a review of the operation of the Act to be conducted before the end of the period of 2 years after the commencement of that section and for copies of a report of the review to be tabled in each House of the Parliament. Section 46 commenced on 10 April 2004. The review concluded in June 2006 and the copies were tabled in the House of Representatives on 22 June 2006 and in the Senate on 8 August 2006. Section 46 is therefore redundant.