House of Representatives

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 (Winter 2017) Act 2017.

Clause 2 - Commencement

1. 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.

2. The note at the end of the table explains that the table relates only to the provisions of the Act as originally enacted.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.

3. 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.

4. Table item 1 of the table in subclause 2(1) provides for sections 1 to 3 of the Act to commence on the day on which it receives the Royal Assent. This commencement is in keeping with current Commonwealth drafting practice, which is to avoid retrospective commencements where practicable.

5. Part 1 to Schedule 1 to the Bill corrects errors in principal Acts or makes minor technical improvements to clarify the text of the law. All items in the Part commence 28 days after the 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 (meaning the text of the law will have been taken to have been correct, despite the error) or the amendments do not change the substantive content of the law.

6. Part 2 to Schedule 1 to the Bill corrects a reference to an incorrect concept. It commences on 1 July 2015, which is retrospective. However, the slip rule would have applied to the error since that date. So the correction from that date would not be detrimental to readers. However, the correction of the text in compilations would assist users of the Act.

7. Schedule 2 to the Bill will amend Acts so that their text reflects the legal effect that Part 6 of the Acts and Instruments (Framework Reform) Act 2015 and section 10 of the Acts Interpretation Act 1901 currently have. It commences 28 days after the Act receives the Royal Assent.

8. Schedule 3 to the Bill repeals spent and obsolete provisions of Acts. It commences 28 days after the Act receives the Royal Assent.

9. Schedule 4 to the Bill repeals redundant Acts. It commences 28 days after the Act receives the Royal Assent.

Clause 3 - Schedules

10. Clause 3 provides that legislation 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

11 The items in this Schedule amend errors contained in principal Acts.

Item 1

12 Schedule 1 to the Antarctic Treaty (Environment Protection) Act 1980 contains a typographical error as it refers to "Antartic", rather than "Antarctic". Item 1 corrects that typographical error.

Item 2

13 Schedule 3 to the Antarctic Treaty (Environment Protection) Act 1980 contains a typographical error as it refers to "activites", rather than "activities". Item 2 corrects that typographical error.

Item 3

14 Subsection 25(1) of the Australian Communications and Media Authority Act 2005 provides that an associate member holds office for the period specified in his or her instrument of appointment and that the period must not exceed 5 years. Later subsections provide for further periods of appointment, a maximum period of appointment and reductions in the period. However, the heading to subsection 25(1) indicates that the period specified in the instrument of appointment is a default period rather than the specified period of appointment. Item 3 alters the heading to better indicate the contents of the subsection.

Item 4

15 A carve-out from paragraph 53(2)(k) of the Australian Communications and Media Authority Act 2005 purports to enable delegation under sections 51 and 52 of the Australian Communications and Media Authority's powers to issue or extend the time for compliance with a notice under Schedule 5, or Schedule 7, to the Broadcasting Services Act 1992. However, under subparagraph 15(1)(a)(ii) of the Enhancing Online Safety for Children Act 2015, functions under Schedules 5 and 7 to the Broadcasting Services Act 1992 are now functions conferred on the Commissioner, not the Australian Communications and Media Authority and so those powers could not be delegated by the Australian Communications and Media Authority. Item 4 omits the redundant reference.

Item 5

16 Section 61CN of the Broadcasting Services Act 1992 requires that if an approved local content plan for a regional commercial radio broadcasting licence is in force, the ACMA must review the plan at least once every 3 years. However, the heading to section 61CN indicates that ACMA may rather than must review the plans. Item 5 alters the heading to better indicate the contents of the section.

Item 6

17 Some 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. Item 6 updates Subsection 12(2) of the Commerce (Trade Descriptions) Act 1905 to accord with current Commonwealth drafting practice.

Item 7

18 The definition of Review Tribunal in section 3 of the Compensation (Japanese Internment) Act 2001 defines Review Tribunal as the Administrative Appeals Tribunal (in paragraph (a) of the definition) or the Administrative Review Tribunal, if that tribunal replaces the Administrative Appeals Tribunal, (in paragraph (b) of the definition). The Administrative Review Tribunal did not replace the Administrative Appeals Tribunal so the reference to the Administrative Review Tribunal is redundant. Item 7 remakes the definition to remove the redundant reference.

Item 8

19 Paragraph 19APA(1)(d) of the Crimes Act 1914 contains an incorrect cross-reference as it refers to "paragraph 19AN(1)(c)" of the Act. However, there is no such provision. The correct provision to refer to is paragraph 19AN(c) of the Act, as paragraph 19AN(1)(c) was renumbered as paragraph 19AN(c) by item 35 of Schedule 7 to the Crimes Legislation Amendment (Powers, Offences and Other Measures) Act 2015. Item 8 corrects the cross-reference.

Item 9

20 Paragraph 19APA(1)(d) of the Crimes Act 1914 contains an incorrect cross-reference as it refers to "paragraph (a)" of the subsection. However, that provision is about the wrong topic. The correct provision to refer to is paragraph (c) of the subsection, as that paragraph deals with the right topic, which is imposition of conditions. Item 9 corrects the cross-reference.

Item 10

21 Subclause 37R(2) of Schedule 2 to the Dairy Produce Act 1986 refers to "review by the Administrative Appeals Tribunal or the Administrative Review Tribunal (as the case may be)". The Administrative Review Tribunal does not exist so the reference to the Administrative Review Tribunal is redundant. Item 10 repeals the redundant reference.

Item 11

22 Paragraph 20(2)(a) of the Fair Work Act 2009 contains a typographical error as it refers to a " full time employee", rather than a " full-time employee". Item 11 corrects that typographical error.

Items 12 and 13

23 Items 12 and 13 are related. The notes at the end of clauses 1 and 40 of Schedule 1A to the Higher Education Support Act 2003 were added by items 14 and 19 of Schedule 1 to the VET Student Loans (Consequential Amendments and Transitional Provisions) Act 2016. The notes refer to subclauses 43(3) to (5) of Schedule 1A to the Higher Education Support Act 2003, which were also added to that Act by item 20 of Schedule 1 to the VET Student Loans (Consequential Amendments and Transitional Provisions) Act 2016.

24 When the VET Student Loans (Consequential Amendments and Transitional Provisions) Bill 2016 was introduced into Parliament, item 20 of Schedule 1 of the Bill added only subclauses (3) to (5) to clause 43 of Schedule 1A to the Higher Education Support Act 2003. However, amendments were made in Parliament to the Bill, which added further subclauses (6) and (7). The notes were not updated to include reference to the new subclauses. This was an oversight.

25 By replacing "43(3) to (5) " in the notes with "43(3) to (7) ", items 12 and 13 reflect the amendments made to clause 43 of Schedule 1A by the VET Student Loans (Consequential Amendments and Transitional Provisions) Act 2016.

Item 14

26 Section 13 of the Legislation Act 2003 covers the construction of legislative instruments and notifiable instruments. However, the heading to section 13 only mentions legislative instruments. Item 14 makes an amendment to the heading to better indicate the contents of the provision in the heading.

Item 15

27 Subsection 13(1) of the Long Service Leave (Commonwealth Employees) Act 1976 defines and refers to the Australian Staffing Assistance Group as being the body established under that name by the Papua New Guinea (Staffing Assistance) Act 1973. That body was established under section 4 of the Papua New Guinea (Staffing Assistance) Act 1973 , which was repealed by the Papua New Guinea (Staffing Assistance) Termination Act 1976. Item 15 clarifies that the body was formerly established by the Act to assist users of the legislation.

Item 16

28 Subsection 64(3) of the My Health Records Act 2012 contains an error as it refers to "healthcare recipient only-notes ". However, there is no other reference in the Act to "healthcare recipient only-notes", only to "healthcare recipient-only notes", which is defined in section 5 of the Act. Item 16 omits the non-existent concept and substitutes the correct one.

Item 17

29 Item 17 repeals the redundant subsection 89(3) of the Primary Industries Research and Development Act 1989. That subsection is redundant as it only relates to when section 54 of the Act applies. Section 54 of the Act was repealed by the Audit (Transitional and Miscellaneous) Amendment Act 1997.

Item 18

30 Paragraph 6(3)(a) of the Radio Licence Fees Act 1964 refers to "the day on which the Radio Licence Fees Amendment Act 1997 received the Royal Assent". The Radio Licence Fees Amendment Act 1997 received Royal Assent on 8 October 1997. It was later repealed by the Amending Acts 1990 to 1999 Repeal Act 2016. To assist users of the Radio Licence Fees Act 1964 to more quickly understand paragraph 6(3)(a), item 18 amends paragraph 6(3)(a) to directly incorporate the relevant date.

Item 19

31 Item 19 repeals the redundant paragraph 5D(4)(aa) of the Telecommunications (Interception and Access) Act 1979. That paragraph is redundant as it provides that section 135.3 of the Criminal Code is a serious offence and there is no section 135.3 of the Criminal Code.

Item 20

32 Paragraph 5D(4)(b) of the Telecommunications (Interception and Access) Act 1979 contains an incorrect cross-reference to provisions of a New South Wales Act as it refers to "Division 1A of Part IV of the Crimes Act 1900 of New South Wales". However, those provisions were renumbered by Schedule 2 to the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW). The correct reference is to Part 4AC of the Crimes Act 1900 of New South Wales. Item 20 corrects the cross-reference.

Item 21

33 Paragraph 6(3)(a) of the Television Licence Fees Act 1964 refers to "the day on which the Television Licence Fees Amendment Act 1997 received the Royal Assent". The Television Licence Fees Amendment Act 1997 received Royal Assent on 8 October 1997. It was later repealed by the Amending Acts 1990 to 1999 Repeal Act 2016. To assist users of the Television Licence Fees Act 1964 to more quickly understand paragraph 6(3)(a), item 21 amends paragraph 6(3)(a) to directly incorporate the relevant date.

Items 22 to 26

34 Items 22 to 26 are related. They fix incorrect cross-references to State and Territory laws and incorrect citations of State and Territory laws.

35 The definition of corresponding WHS law in section 4 of the Work Health and Safety Act 2011 contains a number of incorrect cross-references to State and Territory work health and safety laws. These errors occurred because the Work Health and Safety Act 2011 was drafted in anticipation of all States and Territories implementing the model Work Health and Safety Act on 1 January 2012. Two jurisdictions (Victoria and Western Australia) have not implemented the model, and several others adopted a different title than was anticipated at the time.

36 Items 22 and 23 amend incorrect references to the relevant Victorian and Western Australian work health and safety laws. These jurisdictions have not adopted the model Work Health and Safety Act, but maintain their existing laws. The corresponding WHS laws for these jurisdictions are the Occupational Health and Safety Act 2004 of Victoria and the Occupational Safety and Health Act 1984 of Western Australia. Correcting these referencing errors does not change the operation of the Commonwealth legislation because these state laws are already additionally prescribed as corresponding WHS laws (see regulation 6A of the Work Health and Safety Regulations 2011).

37 Items 24 to 26 amend incorrect citations for the work health and safety laws in South Australia, Tasmania and the Northern Territory. While these jurisdictions have adopted the model Work Health and Safety laws, in South Australia and Tasmania, this happened after passage of the Commonwealth Work Health and Safety Act 2011 in 2012. The Northern Territory legislation was passed in 2011 but adopted a different naming protocol that applies to Acts forming part of a national scheme in the territory. The correct citations are the Work Health and Safety Act 2012 of South Australia, the Work Health and Safety Act 2012 of Tasmania and the Work Health and Safety (National Uniform Legislation) Act of the Northern Territory.

Item 27

38 Paragraph 4(a) of Article 1 in Schedule 1A to the Carriage of Goods by Sea Act 1991 contains an error as it refers to "the Chief Executive Officer of Customs under paragraph 15(1)(a) or (2)(a) of the Customs Act 1901". However, the Customs and Other Legislation Amendment (Australian Border Force) Act 2015 changed the references to "the Chief Executive Officer of Customs" in those provisions (and throughout the statute book), to the "Comptroller-General of Customs". Item 27 omits the non-existent concept and substitutes the correct one.

Schedule 2 - Amendments consequential on the enactment of the Acts and Instruments (Framework Reform) Act 2015

39 The items in this Schedule contain amendments that make amendments to Commonwealth legislation consequential on the enactment of the Acts and Instruments (Framework Reform) Act 2015.

40 The Acts and Instruments (Framework Reform) Act 2015 amended the Legislative Instruments Act 2003 to rename it the Legislation Act 2003. It also restructured that Act and renumbered some provisions. It then made many amendments across the Statute Book to reflect the new title and cross-references to various provisions.

41 Not every cross-reference was updated by the Acts and Instruments (Framework Reform) Act 2015. Part 6 of that Act and section 10 of the Acts Interpretation Act 1901 have operated to ensure that various textual references to the Legislative Instruments Act 2003 and provisions within that Act that still remain on the Statute Book are to be read consistently with amendments by the Acts and Instruments (Framework Reform) Act 2015.

42 The Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015 amended the text of many more Acts to reflect the new Act title and cross-references to various provisions.

43 This Schedule makes further amendments to the text of Acts to reflect the effect of Part 6 of the Acts and Instruments (Framework Reform) Act 2015 and section 10 of the Acts Interpretation Act 1901.

Schedule 3 - Repeal of obsolete provisions

44 This Schedule repeals non-amending provisions that have been sunsetted or otherwise ceased to have effect.

Item 1

45 Item 1 repeals the redundant section 122A of the Defence Act 1903. That section is redundant as subsection 122A(5) states that it ceased to be in force at the end of the period of 6 years after the day on which section 122A commenced. It expired on 2 May 1995.

Items 2 and 3

46 Items 2 and 3 are related. Item 2 repeals the redundant item 57 of Schedule 2 to the Medibank Private Sale Act 2006. That item is redundant as subitem 57(4) states that it ceased to have effect at the end of the period of 12 months beginning on the designated sale day declared under section 3 of the Act. It expired at the end of 30 November 2015. Item 3 is consequential on item 2. It clarifies for readers that item 57 has been repealed but that any rights to compensation for acquisition of property would not have been lost.

Items 4 and 5

47 Items 4 and 5 are related. Item 5 repeals the redundant Schedule 1 to the Plant Health Australia (Plant Industries) Funding Act 2002. That Schedule is redundant as it made consequential amendments, which were spent immediately after they operated on 1 January 2003. Item 4 is consequential on item 5. It repeals section 13 of the Act, which enabled the operation of the Schedule.

Items 6 and 7

48 Items 6 and 7 are related. Item 7 repeals the redundant Schedule 1 to the Prohibition of Human Cloning for Reproduction Act 2002. That Schedule is redundant as it made consequential amendments, which were spent immediately after they operated on 16 January 2003. Item 6 is consequential on item 7. It repeals section 7 of the Act, which enabled the operation of the Schedule.

Items 8 to 19

49 Items 8 to 19 are related. Section 18 of the Tobacco Advertising Prohibition Act 1992 enabled certain acts of publication of tobacco advertisements in connection with events completed before 1 October 2006. The dates for the events to be completed in has ended so the section is redundant. Item 12 repeals the redundant section. Item 19 is a saving provision relating to the remaking of subsection 29(1) by item 14. The remaining items make consequential amendments relating to the repeal.

Schedule 4 - Repeal of obsolete Acts

Item 1

50 The Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Act 2007 amended the Aboriginal Land Rights (Northern Territory) Act 1976 and the Aboriginal Land Rights (Northern Territory) Amendment Act 2006 on 1 July 2007. The Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Act 2007 does not contain any application, saving, transitional or other provisions with ongoing effect, so it is spent. Item 1 repeals it.

Item 2

51 The Governor-General Amendment Act 2003 amended the Governor-General Act 1974 on 3 July 2003. The Governor-General Amendment Act 2003 does not contain any application, saving, transitional or other provisions with ongoing effect, so it is spent. Item 2 repeals it.

Item 3

52 The Stevedoring Industry Act 1961 amended the Stevedoring Industry Act 1956, which was repealed on 5 December 1977 by the Stevedoring Industry Acts (Termination) Act 1977. The Stevedoring Industry Act 1961 does not contain any application, saving, transitional or other provisions with ongoing effect, so it is spent. Item 3 repeals it.

Item 4

53 The Stevedoring Industry (Temporary Provisions) Act 1968 amended the Stevedoring Industry (Temporary Provisions) Act 1967, which was repealed on 5 December 1977 by the Stevedoring Industry Acts (Termination) Act 1977. The Stevedoring Industry (Temporary Provisions) Act 1968 does not contain any application, saving, transitional or other provisions with ongoing effect, so it is spent. Item 4 repeals it.