Replacement Explanatory Memorandum
(Circulated by authority of the Minister for Local Government and Territories, Senator the Hon Fiona Nash)Outline
The Statute Update (A.C.T. Self-Government (Consequential Provisions) Regulations) Bill 2016 (the Bill) would make minor technical amendments to 18 Acts across nine portfolios to incorporate modifications made by the A.C.T. Self-Government (Consequential Provisions) Regulations (the ASGR).
The ASGR made modifications to the application of a number of Acts following the establishment of self-government in the Australian Capital Territory (ACT), as set out in Schedule 1 to the ASGR.
These modifications were made to reflect the establishment of the ACT as a self-governing territory and to ensure that Commonwealth legislation operates in the self-governing ACT in the same way it operates in the states and other self-governing mainland territories. While some of the modifications made by the ASGR were subsequently incorporated into relevant Commonwealth Acts, others were not.
The modifications made by Schedule 1 of the ASGR ensured that existing Commonwealth laws applied in an appropriate manner to the ACT following the ACT's move to self-government.
The purpose of the proposed amendments in the Bill is not to change the intention of the law but to make the remaining modifications to the relevant Commonwealth Acts, thereby allowing the repeal of Schedule 1 and Regulation 2 of the ASGR. This would simplify the legislative framework, by moving the function of the subordinate legislation into the primary legislation, though the amendments would not impact the policy intent or the effect of the modified Commonwealth legislation.
Many of the proposed amendments, for example to the Disability Services Act 1986, simply include the ACT in the definition of a State, to bring the ACT's status as a self-governing territory into line with that applied in the Northern Territory.
These proposed amendments would ensure that all other remaining modifications are made to the primary legislation, ensuring it is easily accessible, and making it easier for users to interpret and apply.
Affected portfolios and the ACT Government were consulted in the preparation of this Bill.
Financial impact statement
This Bill would have no financial implications.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Statute Update (A.C.T. Self-Government (Consequential Provisions) Regulations) Bill 2016
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/Legislative Instrument
The Bill would amend a number of Commonwealth Acts to incorporate modifications made by the ASGR, and enable the repeal of certain provisions of the ASGR.
Human rights implications
Schedule 1, Part 1
The ASGR made modifications to a number of Commonwealth Acts following the establishment of self-government in the ACT (Schedule 1 of the ASGR refers). While some of the modifications made by Schedule 1 of the ASGR were incorporated into the primary legislation, others were not. The proposed amendments of Acts follow the previous modifications made by Schedule 1 to the ASGR to relevant Commonwealth Acts, and do not engage any applicable human rights.
Schedule 1, Part 2
The proposed repeal of Regulation 2 and Schedule 1 of the ASGR does not engage any applicable human rights. Repeal of Regulation 2 of the ASGR, which gives effect to Schedule 1 of the ASGR, would provide clarity and make regulation more easily accessible to users of legislation.
Conclusion
This Bill is compatible with human rights as it does not raise any human rights issues.
Notes on Clauses
Clause 1: Short Title
1. This clause would provide that the short title of the Act is the Statute Update (A.C.T. Self-Government (Consequential Provisions) Regulations) Act 2016.
Clause 2: Commencement
2. This clause would provide that this Act (except for Schedule 1) commences on the day it receives the Royal Assent.
Schedule 1 would commence on the 28th day after the Act receives the Royal Assent.
Clause 3: Schedule(s)
3.
- (1)
- Legislation that is specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Act has effect according to its terms.
- (2)
- The amendment of any regulation under subsection (1) does not prevent the regulation, as so amended, from being amended or repealed by the Governor-General.
SCHEDULE 1 - Amendments
Part 1 - Amendments of Acts
Administrative Appeals Tribunal Act 1975
Item 1- After section 36A
4. Item 1 would amend the definitions of Attorney-General and Cabinet in sections 36B, 36C and 36D of the Administrative Appeals Tribunal Act 1975 to include the relevant ACT Minister or Executive body, unless the contrary intention appears.
Air Accidents (Commonwealth Government Liability) Act 1963
Item 2 - After subsection 11(3)
5. Item 2 would modify subsection 11(3) to extend application of Part III of the Air Accidents (Commonwealth Government Liability) Act 1963 to employees of the ACT Government, ensuring continuity of the application of these workplace provisions, which apply to Commonwealth employees, after commencement of self-government.
Australian Bureau of Statistics Act 1975
Item 3 - Subsection 19(3)
6. Item 3 would amend subsection 19(3) of the Australian Bureau of Statistics Act 1975, which establishes the Australian Statistics Advisory Council, to extend Council membership to include members nominated by the Chief Minister of the ACT.
Item 4 - Subsection 19(3)
7. Item 4 would replace the second reference to the Northern Territory (NT) in subsection 19(3) with a reference to 'that Territory'.
Australian Grape and Wine Authority Act 2013
Item 5 - Subsection 41A(9)
8. Item 5 would repeal and substitute subsection 41A(9) of the Australian Grape and Wine Authority Act 2013 to incorporate new definitions of Parliament and State that include the ACT Legislative Assembly, and the ACT, respectively.
Commonwealth Motor Vehicles (Liability) Act 1959
Item 6 - Subsection 3(1) (definition of Commonwealth authority)
9. Item 6 would amend the definition of Commonwealth authority in subsection 3(1) of the Commonwealth Motor Vehicles (Liability) Act 1959 to be a body corporate incorporated for a public purpose by a law of the Commonwealth or of a Territory other than the ACT and the NT.
Copyright Act 1968
Item 7- Subsection 10(1) (definition of the Crown)
Item 8 - Subsection 10(1) (definition of the Crown)
10. Items 7 and 8 would amend the definition of the Crown in subsection 10(1) of the Copyright Act 1968 to include the Crown in right of the ACT.
Item 9 - Paragraph 10(3)(e)
11. Item 9 would amend the definition of the Crown in paragraph 10(3)(e) of the Copyright Act 1968 so that the right of a State includes the ACT.
Item 10 - Paragraph 10(3)(n)
12. Item 10 would amend paragraph 10(3)(n) of the Copyright Act 1968 so that the definition of a State includes the ACT.
Item 11 - Paragraph 10(3)(n)
13. Item 11 would amend paragraph 10(3)(n) so the reference to a Territory is read as not including a reference to the ACT.
Item 12 - Subsection 182B(1) (note to the definition of government)
14. Item 12 would amend subsection 182B(1) of the Copyright Act 1968 to remove the reference to the modification made by the A.C.T. Self-Government (Consequential Provisions) Regulations (Amendment) (Statutory Rules 1989 No. 392) in the note to the definition of government.
Item 13 - Subsection 183(11)
15. Item 13 would amend subsection 183(11) of the Copyright Act 1968 to include reproduction, copying or communication of the whole or a part of a work or other subject matter for educational purposes by an educational institution under control of the ACT.
Director of Public Prosecutions Act 1983
Item 14 - Subsection 3(1) (before paragraph (a) of the definition of law of the Commonwealth)
Item 15 - Subsection 3(1) (paragraph (c) of the definition of law of the Commonwealth)
16. Items 14 and 15 would amend the definition of the law of the Commonwealth to also exclude the Australian Capital Territory (Self-Government) Act 1988 (the ACTSG Act) and laws made under that Act. The definition of law of the Commonwealth in subsection 3(1) of the Director of Public Prosecutions Act 1983 (the DPP Act) includes a law of a territory with the exception of the Northern Territory (Self-Government) Act 1978 and Norfolk Island Act 1979 and any laws made under those Acts.
Item 16 - Subsection 3(1) (definition of State)
Item 17 - Subsection 3(1) (definition of Territory)
17. Items 16 and 17 would extend the definition of State and Territory in subsection 3(1) of the DPP Act to include the ACT.
Disability Services Act 1986
Item 18 - Section 7 (definition of State)
18. Item 18 would repeal and substitute the definition of State in section 7 of the Disability Services Act 1986 (the DSA Act) so that it also includes the ACT.
Item 19 - Subsection 23(10)
19. Item 19 would amend subsection 23(10) of the DSA Act that binds the Crown in right of the Commonwealth, the States and the NT and Norfolk Island, so as to include the ACT.
Item 20 - Subsection 27(5)
20. Item 20 would amend subsection 27(5) of the DSA Act that binds the Crown in right of the Commonwealth, the States and the NT and Norfolk Island, so as to include the ACT.
Freedom of Information Act 1982
Item 21 - After section 16
21. Item 21 would amend the Freedom of Information Act 1982 (the FOI Act) to insert section 16A, so that requests transferred under the Freedom of Information Act 1989 (ACT) become requests under the FOI Act at the time of receipt by an agency.
Home and Community Care Act 1985
Item 22 - Subsection 3(4)
22. Item 22 would amend subsection 3(4) of the Home and Community Care Act 1985 so that the definition of a State includes the ACT.
Public Accounts and Audit Committee Act 1951
Item 23 - Paragraph 8(2)(a)
23. Item 23 would amend paragraph 8(2)(a) of the Public Accounts and Audit Committee Act 1951 (the PAAC Act) so as to exclude an examination of the financial affairs of the ACT from the duties of the Joint Committee of Public Accounts and Audit.
Item 24 - Subparagraph 8(2)(b)(i)
24. Item 24 would amend paragraph 8(2)(b)(i) of the PAAC Act so as to exclude an examination of a report of the Auditor-General that relates to the financial affairs of the ACT from the duties of the Joint Committee of Public Accounts and Audit.
Item 25 - Subsection 8(6) (definition of State)
25. Item 25 would amend subsection 8(6) of the PAAC Act so that the definition of a State includes the ACT.
Public Lending Right Act 1985
Item 26 - Subsection 8(2)
26. Item 26 would amend subsection 8(2) of the Public Lending Right Act 1985 pertaining to the functions of the Public Lending Right Committee, so that it may consult or cooperate with any person or body established by the ACT that may be able to provide assistance to that Committee.
Public Works Committee Act 1969
Item 27 - Section 5 (at the end of the definition of authority of the Commonwealth)
27. Item 27 would amend the definition of authority of the Commonwealth in section 5 of the Public Works Committee Act 1969 (the PWC Act) so as to exclude bodies established by or under an enactment within the meaning of section 3 of the ACTSG Act.
Item 28 - Section 5 (definition of State)
28. Item 28 would amend the definition of State in section 5 of the PWC Act to include the ACT.
Item 29 - Before paragraph 6(2)(a)
29. Item 29 would amend the section covering extension of the PWC Act to Territories so as to exclude a work proposed to be carried out by or for the ACT.
Remuneration Tribunal Act 1973
Item 30 - Subsection 3(1)
30. Item 30 would amend subsection 3(1) of the Remuneration Tribunal Act 1973 (the RT Act) to include a definition of enactment to have the same meaning as in section 3 of the ACTSG Act.
Item 31 - Subsection 3(1) (at the end of the definition of public statutory corporation)
31. Item 31 would amend subsection 3(1) of the RT Act so that the definition of public statutory corporation excludes corporations established for a public purpose by a law of the ACT.
Item 32 - Paragraph 3(4)(b)
32. Item 32 would amend paragraph 3(4)(b) of the RT Act so that the reference to a public office excludes offices established by, or appointments made under, laws of a Territory enactment.
Item 33 - After paragraph 3(4)(fa)
33. Item 33 would amend paragraph 3(4)(fa) of the RT Act so that the reference to public office includes an executive education office.
Seat of Government (Administration) Act 1910
Item 34 - Paragraph 12(2)(b)
Item 35 - After subsection 12(2)
34. Items 34 and 35 would amend paragraph 12(2) of the Seat of Government (Administration) Act 1910 so as to establish the day on which Ordinances that make provisions in relation to the establishment of the Territory as a body politic under the Crown take effect.
Superannuation Act 1976
Item 36 - Subparagraph 120(a)(i)
35. Item 36 would amend subparagraph 120(a)(i) of the Superannuation Act 1976 (the SA Act) to extend the persons to whom the part of the Act applies to include a candidate for election as a member of the Legislative Assembly of the ACT.
Item 37 - Subsection 125(3)
36. Item 37 would amend subsection 125(3) of the SA Act to also extend the provision allowing for membership by a person of the Legislative Assembly of the ACT to be treated as if it were employment of the person by the Commonwealth.
Superannuation (Productivity Benefit) Act 1988
Item 38 - Subsection 3(1) (paragraph (c) of the definition of qualified employee)
37. Item 38 would amend subsection 3(1) paragraph (c) of the Superannuation (Productivity Benefit) Act 1988 so that the definition of qualified employee includes a person who is the holder of an office established by an enactment of the ACT.
Urban and Regional Development (Financial Assistance) Act 1974
Item 39 - Section 3
38. Item 39 would amend section 3 of the Urban and Regional Development (Financial Assistance) Act 1974 so that the definition of State includes the ACT.
Part 2 - Amendments of Regulations
A.C.T. Self-Government (Consequential Provisions) Regulations
Item 40 - Regulation 2
39. Item 40 would repeal regulation 2 of the A.C.T. Self-Government (Consequential Provisions) Regulations (ASGR), which gives effect to Schedule 1 of the ASGR.
Item 41 - Schedule 1
40. Item 41 would repeal Schedule 1 of the ASGR, which made modifications to a number of Commonwealth Acts following the establishment of self-government in the ACT. While some of the modifications made by Schedule 1 were incorporated into primary legislation, others were not. Proposed amendments in this Bill would make the remaining modifications to allow for the repeal of Schedule 1 of the ASGR.