House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

Schedule 2 - Other measures

Part 1 - Main amendment

Division 1 - Amendments commencing on the day after Royal Assent

Acts Interpretation Act 1901

Items 1 and 2 - Paragraphs 10(c) and 10A(c)

202. Sections 10 and 10A of the Acts Interpretation Act concern references to amended or re-enacted Acts and amended or re-enacted laws of States and Territories respectively. Paragraphs 10(c) and 10A(c) provide, respectively, that where an Act contains a reference to a provision of another Act or to a provision of a law of a State or Territory, and that provision is repealed and re-enacted (or the other Act or State or Territory law is repealed and re-enacted), the reference to the repealed provision extends to any corresponding re-enacted provision.

203. Paragraphs 10(c) and 10A(c) were inserted by the Acts Interpretation Amendment Act 2011 to ensure the continuation and effectiveness of a cross-reference to a provision in situations where a particular provision or provisions are repealed and re-enacted, as opposed to an entire Act. The operation of these provisions ensures that if, for example, the hypothetical 'Dogs Act 2000' were repealed and re-enacted as the 'Dogs Act 2010', any reference to section 10 of the 2000 Act may be read as a reference to section 10 of the new 2010 Act.

204. According to the Explanatory Memorandum to the Acts Interpretation Amendment Act 2011, paragraphs 10(c) and 10A(c) also ensure that, for example, if section 5A of the hypothetical 'Pears Act 2005' is re-enacted as section 6, a reference to former section 5A can be read as a reference to the new section 6. However, this is not clear from the text of paragraphs 10(c) and 10A(c).

205. Items 1 and 2 insert the phrase '(whether or not the re-enacted provision has the same number as the repealed provision)' at the end of paragraphs 10(c) and 10A(c) to clarify that these provisions also apply to circumstances where a particular provision is re-enacted as a differently numbered provision, consistent with the original intention behind those provisions.

206. This also clarifies that paragraphs 10(c) and 10A(c) apply to re-enacted provisions no matter how they are described (for example, by a combination of numbers, letters and hyphens). For example, if section 126 of an Act were re-enacted as section 126A, any reference to section 126 could thereafter be read as a reference to section 126A. Similarly, if section 10 of an Act were repealed and replaced by section 10-5, any reference to section 10 could thereafter be read as a reference to section 10-5.

Item 3 - Paragraph 46AA(1)(b)

207. Paragraph 46AA(1)(a) of the Acts Interpretation Act provides for an instrument, other than a legislative instrument, a notifiable instrument or a rule of court, to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. Paragraph 46AA(1)(b) allows an instrument to apply, adopt or incorporate any matter contained in any other instrument or writing in the form that exists at the time the instrument commences.

208. Item 3 repeals and replaces paragraph 46AA(1)(b) to clarify that an instrument may apply, adopt or incorporate any matter contained in another instrument or writing that is in force or existing at either:

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the time when the first-mentioned instrument commences, or

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a time before the first-mentioned instrument commences even if the other instrument or writing is not in force or existing when the first-mentioned instrument commences.

209. The purpose of item 3 is to clarify that an instrument may apply, adopt or incorporate a matter contained in another instrument or writing which, although not the version in force at the time the instrument commences, was in force at some time prior to that commencement and continues to be readily identifiable and accessible. This puts beyond doubt that an instrument may make provision in relation to a matter by applying, adopting or incorporating a matter contained in a version of a document that is no longer current at the time of its incorporation. This ensures that Parliament has an opportunity to be aware of the content of the instrument even though it is no longer in force.

210. The amendment made by this item is consistent with new paragraph 14(1)(b) of the Legislation Act, as repealed and substituted by item 9 of Schedule 2, which deals with incorporation of material in legislative and notifiable instruments.

Item 4 - Application provision

211. Item 4 contains an application provision for item 3 of Schedule 2, with the effect that the repeal and substitution of paragraph 46AA(1)(b) of the Acts Interpretation Act applies to application, adoption or incorporation of provisions by an instrument made on or after the commencement of this item, whether the legislation authorising or requiring the instrument was made before, on or after that commencement. This ensures the amendment does not apply retrospectively.

Legislation Act 2003

Items 5 to 8 - Amendments to section 12

212. Section 12 of the Legislation Act provides for the commencement of legislative and notifiable instruments. Subsection 12(3) provides that a provision of a legislative or notifiable instrument may commence before the day on which the instrument is registered. This is subject to the caveat in subsection 12(2) that any such provision does not apply in relation to a person (other than the Commonwealth) to the extent that the retrospective application would affect the person's rights so as to disadvantage them or impose liabilities on them.

213. Items 5 to 8 make various amendments to put beyond doubt that section 12 of the Legislation Act authorises the making of a legislative or notifiable instrument that commences retrospectively under any enabling legislation. The amendments are intended to explicitly displace the common law position that express legislative power is required under the enabling legislation to authorise retrospective commencement of regulations and other legislative instruments. The ability for an instrument to commence retrospectively may be displaced by a contrary provision under subsection 12(4).

214. Item 5 inserts new subsection 12(1A) to allow a legislative or notifiable instrument to provide that the instrument or a provision of the instrument commences before it is registered on the Federal Register of Legislation, despite any principle or rule of common law. This includes circumstances where an instrument or provision of an instrument is expressed to commence at the start of a particular day, but is not registered and published on the Register until later that day.

215. Item 6 repeals and substitutes a new subsection 12(2) that is expressed in substantially the same terms as the repealed provision, with minor changes to reflect the insertion of new subsection 12(1A). New subsection 12(2) operates in the same way as the repealed subsection 12(2), by displacing the effect of new subsection 12(1A) to the extent that the retrospective commencement adversely affects the rights or liabilities of a person other than the Commonwealth. This renders an instrument or provision of an instrument ineffective only to the extent that it has a retrospective adverse effect on a person, rather than rendering it ineffective in relation to all people both prospectively and retrospectively merely because the rights or liabilities of one person have been adversely affected by the retrospectivity.

216. Item 6 also repeals subsection 12(3), as it is made redundant by new subsection 12(1A).

217. Item 7 prescribes a new subheading of 'Retrospective commencement or application subject to contrary provision' before subsection 12(4).

218. Item 8 makes consequential amendments to subsection 12(4) to reflect the insertion of new subsection 12(1A) and the repeal of subsection 12(3).

219. New subsection 12(4) provides that an enabling Act can displace the effect of both new subsections 12(1A) and 12(2) by an express provision in that Act.

Item 9 - Paragraph 14(1)(b)

220. Paragraph 14(1)(a) of the Legislation Act provides for a legislative or notifiable instrument to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. Paragraph 14(1)(b) allows a legislative or notifiable instrument to apply, adopt or incorporate any matter contained in any other instrument or writing in the form that exists at the time the instrument commences.

221. Item 9 repeals and replaces paragraph 14(1)(b) to clarify that a legislative or notifiable instrument may apply, adopt or incorporate any matter contained in another instrument or writing that is in force or existing at either:

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the time when the first-mentioned instrument commences, or

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a time before the first-mentioned instrument commences even if the other instrument or writing is not in force or existing when the first-mentioned instrument commences.

222. The purpose of item 9 is to clarify that a legislative or notifiable instrument may apply, adopt or incorporate a matter contained in another instrument or writing which, although not the version in force at the time the instrument commences, was in force at some time prior to that commencement and continues to be readily identifiable and accessible. This puts beyond doubt that an instrument may make provision in relation to a matter by applying, adopting or incorporating a matter contained in a version of a document that is no longer current at the time of its incorporation.

223. The amendment made by this item is consistent with new paragraph 46AA(1)(b) of the Acts Interpretation Act, as repealed and substituted by item 3 of Schedule 2, which deals with incorporation of material in instruments other than legislative instruments, notifiable instruments and rules of court.

Item 10 - Application provisions

224. Subitem 10(1) provides that the amendments made to section 12 of the Legislation Act by items 5 to 8 of Schedule 2 apply to instruments made on or after the commencement of this item, regardless of whether the enabling legislation for the instrument was made before, on or after that commencement. This ensures the amendments do not apply retrospectively.

225. Subitem 10(2) provides that the repeal and substitution of paragraph 14(1)(b) by item 9 of Schedule 2 applies to application, adoption or incorporation of provisions by an instrument made on or after the commencement of this item, whether the enabling legislation for the instrument was made before, on or after that commencement. This ensures the amendment does not apply retrospectively.

Division 2 - Amendments commencing on Proclamation

Legislation Act 2003

Item 11 - Rectification of the Federal Register of Legislation

226. This item repeals section 15D of the Legislation Act and substitutes new sections 15D and 15DA to clarify the limits of the First Parliamentary Counsel's power to rectify errors on the Federal Register of Legislation. The power to rectify errors ensures that the text of the law on the Register accurately reflects the law as passed by the Parliament or as made by a rule-maker. It does not give the First Parliamentary Counsel any power to correct errors that are in the original text of the law as passed by the Parliament or as made by a rule-maker.

New section 15D: Federal Register of Legislation-rectification of Register

227. New subsection 15D(1) provides that, if the First Parliamentary Counsel becomes aware that the Register contains an error, she or he must arrange for the error in the Register to be rectified as soon as possible.

228. For the purposes of this section, an error is defined by new paragraph 15D(1)(b) to be that:

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the text of an Act as it appears in the Register is not the same as the text of the Act as assented to

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the text of a legislative or notifiable instrument as it appears in the Register is not the same as the text of the instrument as made by the rule-maker

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a compilation as it appears in the Register does not represent the state of the law that it purports to represent, or

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the text of another document on the Register as it appears in the Register is not the same as the text of the original document.

229. This ensures that administrative errors, such as lodgement of the incorrect version of an instrument or compilation for publication on the Register, can be rectified easily by the First Parliamentary Counsel.

230. New subsection 15D(2) requires that, where the First Parliamentary Counsel has exercised her or his power to rectify the Register under this section, she or he must include in the Register a brief outline of the rectification that has been made.

231. New subsection 15D(3) operates as a safeguard by providing that the effect of a rectification is displaced to the extent that it would affect any rights or privileges acquired or accrued by reason of reliance on the Register before the rectification, or to the extent that it would impose or increase any obligation or liability that was incurred before the rectification was made. This ensures that a person or entity is not adversely affected by mistakes on the Register that may have arisen from administrative error.

232. New subsection 15D(4) clarifies that the rectification of an instrument under new subsection 15D(1) does not affect the time at which that instrument is taken to have been registered. For example, the rectification of an instrument does not change the commencement of the instrument if the instrument is specified to commence on the day after registration.

New section 15DA: Requirement for re-tabling and new disallowance period after rectification of Register

233. New subsection 15DA(1) provides that this section applies if:

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the First Parliamentary Counsel has rectified an error where the text of a disallowable legislative instrument in the Register is not the same as the text of the instrument as made by the rule-maker

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the error is rectified by replacing the version of the instrument that was previously registered ('the originally tabled version') with another version ('the correct version'), and

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at the time of the rectification, the originally tabled version has already been laid before either or both Houses of the Parliament in accordance with section 38 of the Legislation Act.

234. The effect of this subsection is that new section 15DA would not operate where an error in the text of a disallowable legislative instrument is identified and rectified before that instrument is tabled in the Parliament.

235. New subsection 15DA(2) requires the First Parliamentary Counsel to arrange for the correct version to be laid before each House of the Parliament within six sitting days of that House after the rectification. This ensures that the Parliament is made aware of any changes to the text of an instrument that has already been tabled by requiring the correct version to be re-tabled.

236. New subsection 15DA(3) prescribes the mechanisms for retaining parliamentary oversight of instruments for which a correct version has been re-tabled in each House of the Parliament in accordance with subsection 15DA(2). This is subject to new subsection 15DA(4), which excludes the operation of subsection 15DA(3) for instruments that have already been disallowed in full at the time the correct version is delivered to a House of the Parliament for re-tabling.

237. New paragraph 15DA(3)(a) provides that an instrument is taken to have been laid before a House of the Parliament in accordance with subsection 38(1) of the Legislation Act when the correct version is delivered to be laid in accordance with new subsection 15DA(2). However, new paragraph 15DA(3)(a) does not affect the operation of subsection 39(2), which ensures that the explanatory statement that was laid before each House of the Parliament in conjunction with the originally tabled version does not need to be re-tabled with the correct version.

238. New paragraph 15DA(3)(b) provides that the instrument becomes subject to the disallowance mechanism in Part 2 of Chapter 3 of the Legislation Act from the date on which the correct version is laid before each House of the Parliament. This ensures that administrative error does not prevent the Parliament from retaining full oversight over delegated legislation, particularly where the correct version of an instrument is substantively different from the originally tabled version.

239. New paragraph 15DA(3)(c) provides that section 46 of the Legislation Act applies as if instrument had been registered at the time it was rectified. Section 46 provides that, during the period between the registration of a legislative instrument and seven days after the later of the days on which the instrument is laid before each House of the Parliament, no legislative instrument that is the same in substance as the first-mentioned instrument may be made without the prior agreement of both Houses of the Parliament.

240. The purpose of section 46 is to prevent the theoretical possibility that a rule-maker could avoid parliamentary scrutiny indefinitely by repeatedly making an instrument, failing to table it and repealing and remaking it during or immediately upon the expiration of the period prescribed by section 38. Consistent with this purpose, new paragraph 15DA(3)(c) ensures that the prohibition in section 46 applies to the instrument from the time of the rectification.

241. New paragraph 15DA(3)(d) provides that, if the disallowance period for the originally tabled version has ended, the fact that the instrument (or a provision thereof) has been automatically repealed under section 48A (automatic repeal of amending and repealing instruments) or section 48C (automatic repeal of amending and repealing provisions) of the Legislation Act (as modified by items 42 to 54 of Schedule 1) is taken not to have occurred for all purposes.

242. The commencement of a new disallowance period upon the laying of the correct version before each House of the Parliament removes the disallowance period relating to the originally tabled version and most consequences flowing from that disallowance period. This includes the automatic repeal of an instrument at the end of the instrument's original disallowance period. If the instrument has already been automatically repealed at the end of the original disallowance period, it would instead be taken to have been automatically repealed at the end of the later disallowance period that begins the sitting day after the correct version is tabled. (However, as prescribed by new paragraphs 15DA(3)(e) and (f), this does not remove the effect of any extant notices of motion to disallow that instrument or the effect of any disallowance of a provision of that instrument.)

243. New paragraph 15DA(3)(e) operates to continue the effect of a notice of motion to disallow that is already on foot at the time the correct version is tabled. It provides that, where a notice of motion to disallow the instrument (or a provision thereof) has already been given in a House of the Parliament at the time the correct version is laid before that House in accordance with new subsection 15DA(2), and that notice has not been withdrawn or disposed of, then the notice is taken to have been given on the sitting day after the correct version is tabled. This ensures that the rectification of an error will not operate to override a decision of a House of the Parliament to move a notice of motion to disallow the instrument, and that each House will have the full 15 sitting day period in which to consider the correct version that has been re-tabled.

244. New paragraph 15DA(3)(f) provides that, where a provision of an instrument has already been disallowed, that provision remains disallowed despite the re-tabling of the correct version in accordance with new subsection 15DA(2). However, new subsection 15DA(3) will still otherwise apply to the remainder of the instrument. In particular, the remainder of the instrument will still become subject to the disallowance mechanism in Part 2 of Chapter 3 of the Legislation Act from the date on which the correct version is laid before each House of the Parliament.

245. Where the disallowed provision appears in identical form in both the originally tabled version and the correct version, the correct version that is re-tabled in each House of the Parliament would include the disallowed provision to represent the instrument as made by the rule-maker.

246. Where the disallowed provision is different between the originally tabled version and the correct version, the correct version that is re-tabled in each House of the Parliament would include the disallowed provision as it should have appeared. However, that provision would still be taken to have been disallowed. This is consistent with the treatment of an instrument that has been disallowed in its entirety before the correct version can be re-tabled. In both cases, the fact of administrative error does not remove the effect of the disallowance.

247. New subsection 15DA(4) provides that the new subsection 15DA(3) does not apply to instruments that have already been disallowed in full at the time the correct version is re-tabled in each House of the Parliament. This ensures that the rectification of an error will not operate to override a decision of a House of the Parliament to disallow the affected instrument.

248. New subsection 15DA(5) clarifies that the laying before a House of the Parliament of an instrument under new subsection 15DA(2) does not affect the time at which that instrument is taken to have been registered, except as otherwise provided for by paragraph 15DA(3)(c). This means that the re-tabling of the correct version would not change the commencement of the instrument if the instrument is specified to commence on the day after registration.

Item 12 - Subparagraph 15L(1)(e)(i)

249. Section 15L of the Legislation Act requires responsible persons for registered Acts, registered legislative instruments or registered notifiable instruments to notify the First Parliamentary Counsel of certain events that affect the currency or accuracy of the Register. Subparagraph 15L(1)(e)(i) further provides that such an event includes where a responsible person becomes aware of an error in the Register to which subsection 15D(1) may apply.

250. This item replaces the description of subsection 15D(1) in the brackets, which is '(correction of registration errors)', with '(Federal Register of Legislation-rectification of Register)'. This reflects the amendments made by item 11 of Schedule 2.

Item 13 - Application provision

251. Item 13 contains an application provision for item 11 of Schedule 2, with the effect that the repeal and substitution of section 15D of the Legislation Act applies in relation to errors rectified on or after the commencement of this item. This ensures that new section 15D does not apply retrospectively.

Part 2 - Consequential amendments

Excise Act 1901

Item 14 - Subsection 164A(2)

252. This item amends subsection 164A(2) of the Excise Act 1901 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Excise Tariff Act 1921

Item 15 - Subsection 6CA(1A) (note)

253. This item amends the Note under subsection 6CA(1A) of the Excise Tariff Act 1921 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Income Tax Assessment Act 1997

Item 16 - Subsections 293-115(7) and 293-145(2A)

254. This item amends subsections 293-115(7) and 293-145(2A) of the Income Tax Assessment Act 1997 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Independent Contractors Act 2006

Item 17 - Subsection 42(4)

255. This item amends subsection 42(4) of the Independent Contractors Act 2006 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Taxation Administration Act 1953

Item 18 - Subsection 133-130(4) in Schedule 1

256. This item amends subsection 133-130(4) in Schedule 1 to the Taxation Administration Act 1953 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

Part 3 - Contingent amendments

Criminal Code Act 1995

Item 19 - Subsection 80.1AA(2A) of the Criminal Code

257. This section amends subsection 80.1AA(2A) of the Criminal Code Act 1995 as a consequence of items 5 and 6 of Schedule 2, which insert new subsection 12(1A) into and repeal subsection 12(3) of the Legislation Act.

258. This item is contingent upon the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 not having commenced at the time this item commences. This is because item 4 of Schedule 1 to that Act repeals the provision amended by this item.