House Of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

Schedule 3 - application, saving and transitional provisions

Item 1 - Application - general

1. Item 1 provides that subject to this Schedule, the amendments and repeals made by Schedule 1 will apply on and after its commencement. This means that the amendments will have a prospective operation in relation to all Acts - that is, those enacted before, on and after commencement.

Item 2 - Transitional - Gazette

2. Gazette is currently defined in section 17 as 'the Commonwealth of Australia Gazette , and includes the Australian Government Gazette published during the period commencing

1 July 1973 and ending immediately before the commencement of subsection 5(2) of the Acts Interpretation Amendment Act 1976'. Given the length of time since the Australian Government Gazette has ceased to exist, item 4 of Schedule 1 of this Bill amends (and simplifies) the definition to reflect the current post-1976 position of 'the Commonwealth of Australia Gazette'. However, the transitional provision in item 2 of Schedule 3 states that the definition of 'Gazette' in new section 2B (inserted by item 4 of Schedule 1) includes the period in the 1970s where the Australian Government Gazette applied. This improves the clarity of the definition whilst maintaining the current legal position of the Australian Government Gazette .

Item 3 - Application and saving - commencement

3. Item 10 of Schedule 1 repeals existing section 5 of the Acts Interpretation Act and item 8 of Schedule 1 inserts a replacement provision about commencement of Acts. The new provision does not apply to Acts which contain their own commencement provision, but contains default rules of commencement for Acts that do not make arrangements for commencement.

4. The new commencement provision will apply to Acts receiving Royal Assent after the new section on commencement has come into operation.

5. Item 9 of Schedule 1 rewrites the existing section 4 dealing with the exercise of powers between enactment and commencement of Act and removes subsections which are no longer required. This amendment does not affect the validity of the exercise of a power or anything else done before item 9 of Schedule 1 commences.

Item 4 - Application - effect of repeal or amendment of Act

6. Item 13 of Schedule 1 repeals sections 7 to 9 and replaces them with a new provision dealing with the effect of repeal or amendment of Acts that is drafted in more contemporary language and is easier for the reader to understand. This amendment is specified to apply to all repeals, amendments, expiries, lapses, cessations, abrogations, limitations and exclusions occurring on or after the commencement of item 13 of Schedule 1.

Item 5 - Application - Acts applying in coastal seas

7. Item 25 of Schedule 1 amends section 15B of the Acts Interpretation Act which is about the application of Acts in the coastal sea. This section is being re-written in clearer language and it is not intended that the effect of this provision will change. As such, this amendment applies to all Acts - that is, those enacted before, on and after the commencement of this amendment.

Item 6 - Saving - Ministerial authorisations

8. Item 36 of Schedule 1 repeals section 18C, concerning Ministerial authorisation to perform statutory functions or powers, and item 81 of Schedule 1 moves the content of that section to after section 34. Item 6 of Schedule 3 specifies that section 18C continues to apply to authorisations in effect under section 18C immediately prior to its repeal, to ensure that no authorisations cease to have effect due to the relocation of this provision.

Item 7 - Saving - registered relationships

9. Item 4 of Schedule 1 moves the definition of registered relationship from section 22B of the Acts Interpretation Act to the new 'Part 2 - Definitions' where it becomes section 2E. The text of the provision has not been changed. Item 7 of Schedule 3 specifies that any regulations in force under existing section 22B remain in force as if they had been made under new section 2E to ensure the continued validity of these regulations.

Item 8 - Application - delegations

10. Item 89 of Schedule 1 adds a new subsection to section 34AB (which deals with the effect of a delegation). Item 8 of Schedule 3 specifies that the change applies to alterations or additions made after the commencement of item 89 regardless of whether the delegation itself was made before, on or after its commencement.

Item 9 - Saving - previous interpretation preserved

11. Items 63, 65, 67, 69, 70, 71, 72, 82, 84, 85, 87, 88, 90, 104, 111, 113, 114 and 115 of Schedule 1 all either amend sections 33, 34AA, 34AB, 34A or 46 of the Acts Interpretation Act or subsection 13(3) of the Legislative Instruments Act. Item 80 of Schedule 1 inserts a new section 34AAA. Item 9 of Schedule 3 specifies that these amendments should not affect by implication the interpretation of sections 33(1), (2), (3), (3A) or (3b), 34AA, 34AB, 34A or 46(1) or (3) of the Acts Interpretation Act or subsection 13(1) or (3) of the Legislative Instruments Act prior to the commencement of those amendments. In other words, their operation is aimed only for future interpretation of these provisions.

Item 10 - Saving - appointments

12. Item 10 provides that the amendments made by Schedule 2 do not affect the validity of an appointment that was made under an Act before the commencement of this item and that was in force immediately before that commencement.

Item 11 - Transitional regulations

13. Item 11 gives the Governor- General authority to make regulations of a transitional nature relating to amendments and repeals made by Schedules 1 and 2.