BILLS DIGEST NO. 81, 2015–16              18 February 2016

Omnibus Repeal Day (Spring 2015) Bill 2015

Leah Ferris
Law and Bills Digest Section 

Date introduced: 12 November 2015

House:  House of Representatives

Portfolio: Prime Minister

Commencement: Various dates as set out in the body of the Digest.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website.

Purpose of the Bill

The main purpose of the Omnibus Repeal Day (Spring 2015) Bill 2015 (the Bill) is to repeal spent and redundant provisions in Acts, abolish bodies considered to be obsolete and remove regulatory requirements in a range of portfolio areas that have been judged unnecessary. The Bill forms part of a package of repeal Bills introduced in November 2015, which includes the Amending Acts 1990 to 1999 Repeal Bill 2015[1] and the Statute Law Revision Bill (No. 3) 2015.[2] These last two Bills passed both Houses of Parliament on 4 February 2016 and await Royal Assent.

Background to the Bill

This Bill is the fourth ‘Omnibus Repeal Day Bill’ that the Government has introduced since being elected in 2013.[3] There has previously been some debate about the merits of such Bills and the need for the Parliament to remain vigilant in ensuring that they are as innocuous as they purport to be.[4]

The Explanatory Memorandum states that the Bill contains ‘a range of non-controversial measures to reduce regulatory burden for businesses, families, individuals and the community sector’.[5] In introducing the Bill, the Assistant Minister for Productivity, Dr Peter Hendy argued that the Bill would help clean up the Commonwealth’s statute book, ‘making it easier for users of Commonwealth legislation to find and access regulations’. [6] The Opposition has argued that statute law revision is considered to be a ‘normal government function’ and that the Government has not ‘substantiate[d] the claims that this will make life for the community and small business, or any sized business, any better at all’.[7]

Previous digests have noted that it is the practice in some Australian jurisdictions for amending Acts to be automatically removed from the statute book once their purpose has been fulfilled.[8] Alternatively, since 2007 Victoria has included sunsetting clauses (a clause in the Act which repeals the legislation in question once its purpose is complete or once it cannot be completed) in all amending Acts on its statute book.[9] While the Commonwealth has automated the process of repealing or sunsetting legislative instruments (the Legislative Instruments Act 2003, Part 5A (Repeal of spent legislative instruments and provisions) and Part 6 (Sunsetting of legislative instruments)) it has yet to automate the process of removing spent amending Acts.[10]

Dr Hendy recently wrote an opinion piece in The Australian which outlined the Government’s new regulatory reform agenda.[11] As part of this agenda, repeal days will be replaced with annual reports which will assess the Government’s performance in repealing legislation and outline a course for reform over the coming year.[12] Dr Hendy noted that while ‘the present approach of biannual repeal days has been useful …its effectiveness in repealing legislation into the future will be limited as [the Government has] now done the major work to clean up the statute books’.[13]

Structure of the Bill

The Bill has 14 Schedules reflecting amendments across the following government portfolios:

•       Agriculture and Water Resources

•       Attorney-General

•       Communications and the Arts

•       Education and Training

•       Environment

•       Finance

•       Health

•       Immigration and Border Protection

•       Industry, Innovation and Science

•       Infrastructure and Regional Development

•       Prime Minister

•       Social Services

•       Treasury and

•       Veterans’ Affairs.

This Digest examines the amendments in the Bill judged to be material or apparently material.

Commencement details

Sections 1–3 commence on Royal Assent. Schedules 1–5, Part 1 of Schedule 6, Parts 1, 2, 3 and 5 of Schedule 7, Schedules 8–9 and Schedules 11–14 commence the day after Royal Assent. Part 2 of Schedule 6 commences either on 1 July 2016 or the day after Royal Assent, whichever occurs later. Part 4 of Schedule 7 and Schedule 10 commence on the 28th day after Royal Assent.

Committee consideration

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills raised concerns with the provisions contained in Schedules 3 and 12 of the Bill (these are discussed in the ‘key issues and provisions’ section of the Digest).[14] The Scrutiny of Bills Committee also provided general commentary on the role of ‘omnibus repeal day bills’. While the Committee recognised the usefulness in the Government engaging in a regular statute review process, it referred to concerns raised by the Clerk of the Senate regarding the nature of the amendments contained in omnibus and statute law revision bills and the need for more clarity regarding their nature.[15] The Clerk advised that parliamentary scrutiny of such bills would be assisted by ‘a statement from the executive government about what it expects such bills to cover and – perhaps more importantly – not cover’.[16]  This suggestion was supported by the Senate Finance and Public Administration Legislation Committee.[17] The Scrutiny of Bills Committee agreed:

As it now appears that ‘omnibus repeal day’ bills will be brought before the Parliament on a regular basis, in order to assist parliamentary scrutiny of these bills the committee requests the Assistant Minister’s advice as to whether the government has given consideration to developing guidelines in relation to what may be included in (and what type of matters will be excluded from) such bills.[18]

The Assistant Minister for Productivity, Dr Peter Hendy, advised the Committee that ‘there are no current plans for the Government to develop guidelines in relation to what may be included (or should be excluded) from Omnibus Bills’.[19] He stressed the need for flexibility and argued that some ‘house-keeping measures … may otherwise go unaddressed if not included in an Omnibus Bill’.[20] While noting this response, the Committee reiterated that the development of such guidelines ‘would assist in optimising the limited resources of both Houses’.[21] However, in light of Dr Hendy’s announcement that the Government does not intend to have future repeal days, the regularity of omnibus statute law revision Bills may decline.[22]

The Scrutiny of Bills Committee also noted that the Bill contained both new measures and measures previously contained in the Omnibus Repeal Day (Spring 2014) Bill 2014.[23] The Committee commented that due to the diverse range of amendments proposed by the Bill, it would be beneficial to Senators to be able ‘to quickly determine which measures have not yet been considered by the Parliament’.[24] The Committee therefore sought ‘the Assistant Minister’s advice as to whether the explanatory memorandum to the bill can be amended to specify whether items are new or previously introduced measures’.[25] Dr Hendy advised the Committee that ‘the inclusion of non-contentious measures from the Omnibus Repeal Day (Spring 2014) Bill 2014 was considered appropriate in order to expedite the implementation of those measures’.[26] He also informed the Committee that the Government intended to table an Addendum to the Explanatory Memorandum to outline which measures were replicated from the earlier Bill.[27] The Addendum was tabled in the Senate on 2 February 2016.[28]

Senate Finance and Public Administration Legislation Committee

On 26 November 2015 the Senate referred the Omnibus Repeal Day (Spring 2015) Bill 2015 to the Senate Finance and Public Administration Legislation Committee for inquiry and report by 3 February 2016.[29] Details of the inquiry are on the Committee’s website.[30]

On 3 February 2016, the Committee tabled its report which recommended that the Bill be passed.[31] However, the Committee ‘indicated it was supportive of the Clerk of the Senate's suggestion that guidelines to assist parliamentary scrutiny be developed by government’.[32] Labor senators on the Committee provided additional comments outlining their opposition to the amendments relating to the abolition of the National Rural Advisory Council and recommend that these amendments be removed from the Bill.[33]

Parliamentary Joint Committee on Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[34]

The Parliamentary Joint Committee on Human Rights raised concerns regarding the provisions contained in Schedules 3 and 11 of the Bill (these are discussed in the ‘key issues and provisions’ section of the Digest).[35]

Policy position of non-government parties/independents

The Deputy Manager of Opposition Business, Mr Mark Dreyfus, raised concerns about the proposal to abolish the National Rural Advisory Council (Schedule 1 of the Bill), the removal of consultation requirements for the Australian Communications and Media Authority (Schedule 3 of the Bill) and the proposed amendments to the Environment Protection and Biodiversity Conservation Act 1999 which relate to assessment documentation and requirements to publish particular decisions (Schedule 5 of the Bill).[36] Mr Dreyfus also noted that 19 of the measures contained in the Bill have been carried over from the Omnibus Repeal Day (Spring 2014) Bill 2014, which the Senate refused to pass in its original form.[37]

Financial implications

The Explanatory Memorandum states that the Bill will have no financial implications for the Commonwealth.[38] However, as part of its consolidated list of deregulation initiatives announced as part of the 2015 Spring Repeal Day the Government has stated that four measures contained in the Bill will achieve deregulatory savings of $6.208 million per annum.[39] The Deputy Manager of Opposition Business, Mark Dreyfus, noted that out of the claimed $6.2 million of savings, $1.2 million relates to measures that were originally contained in the Omnibus Repeal Day (Spring 2014) Bill 2014.[40]

Key issues and provisions

Schedule 1—Agriculture and Water Resources

Schedule 1 of the Bill will introduce a number of amendments across the agriculture and water resources portfolio, including:

•       repealing the Rural Adjustment Act 1992, Wool International Act 1993 and the Wool International Privatisation Act 1999[41]

•       limiting the information that the Australian Pesticides and Veterinary Medicines Authority (APVMA) is required to provide to Food Standards Australia New Zealand in determining whether the Maximum Residue Limits Standard is required to be changed[42]

•       abolishing the APVMA Advisory Board and the Fishing Industry Policy Council[43] and

•       removing obsolete provisions from the Australian Meat and Live-stock Industry Act 1997.[44]

The Opposition has raised concerns regarding the repeal of the Rural Adjustment Act 1992 and the decision to abolish the APVMA Advisory Board.[45]

Abolition of the National Rural Advisory Council

Under the Rural Adjustment Act 1992, the National Rural Advisory Council (NRAC) ‘was established as a statutory body in December 1999 as a skills-based independent advisory council’.[46] The role of the NRAC is to provide the Agriculture Minister with advice and information on matters including rural adjustment, regional issues, and training.[47] The NRAC may consist of up to eight members which must include:

•       a chairperson

•       an officer of the Department of Agriculture, to represent the Commonwealth

•       a state or territory representative

•       a National Farmers’ Federation (NFF) representative

•       members with expertise in economics, financial administration, banking, sustainable agriculture, regional adjustment, regional development, farm management or training.[48]

In March 2014, the National Commission of Audit released Phase 2 of its report, which contained a recommendation that the NRAC (along with a number of other bodies within the Agriculture portfolio) be merged into the Department of Agriculture.[49] Following on from the 2014–15 Mid-Year Economic and Fiscal Outlook as part of the Government’s Smaller Government Reform Agenda it was announced that the NRAC would be merged into the Agriculture Industry Advisory Council [AIAC][50] and ‘the positions of NRAC members were allowed to lapse or were revoked on 30 June 2015’.[51]

The Explanatory Memorandum explains that ‘information, advice and recommendations on issues affecting Australia’s agricultural, fishing, forestry and water sectors can now be fulfilled by the AIAC’.[52] The AIAC was established in January 2014 and 10 members were appointed (which has increased to 11 members), with the Minister of Agriculture to chair the council.[53] During the debate on the Bill in the House of Representatives the Member for Hunter, Mr Joel Fitzgibbon, argued that the AIAC was a poor substitute for the NRAC as it was not a statutory authority with reporting requirements and lacked an independent chair.[54] In its submission to the Senate Finance and Public Administration Committee, the Department of Agriculture and Water Resources asserted that ‘the merging of the NRAC and the AIAC reduces duplication yet maintains the quality of information and advice provided to the Minister…on issues affecting the portfolio’.[55]

Abolition of the APVMA Advisory Board

Section 14 of the Agricultural and Veterinary Chemicals (Administration) Act 1992 established the APVMA Advisory Board, whose role is:

…to provide advice and make recommendations to the CEO in relation to the performance of a function or the exercise of a power of the APVMA. The advisory board does not have decision-making power, but assists to inform the CEO on strategic matters and provides an expert consultative mechanism. The CEO is responsible for the governance and management of the authority, including the performance of its functions and the exercise of its powers.[56]

The APVMA Advisory Board may consist of up to nine part-time members. When appointing members the Minister of Agriculture must ensure that:

•       two Board members have experience in the regulation, under state or territory law, of chemical products

•       one Board member has experience in the agricultural chemical industry

•       one Board member has experience in the veterinary chemical industry

•       one Board member has experience in primary production

•       one Board member has experience in environmental toxicology, including knowledge of the effect of chemicals in ecosystems

•       one Board member has experience in protecting consumer interests

•       one Board member has experience in public health and occupational health and safety and

•       if the Minister considers it necessary—one Board member has experience in a field relevant to the APVMA’s functions.[57]

As part of its goal to rationalise government bodies, the National Commission of Audit recommended that the APVMA Advisory Board be abolished.[58] The Government agreed with this recommendation, arguing that other consultative mechanisms available under the APVMA’s legislation would be ‘more responsive and cost-effective’ than the continuation of the Advisory Board.[59] The Explanatory Memorandum notes that the APVMA will still ‘have a range of communication mechanisms in place that allow stakeholders to present their views on matters of chemical regulation’.[60]

Mr Fitzgibbon has criticised the decision to abolish the Board, describing it as ‘another blow to Australia’s effort to protect its reputation as a provider of clean, green, safe and high quality food’.[61] However, the Chief Executive of Animal Medicines Australia, Duncan Bremner has argued that the APVMA Advisory Board ‘had been redundant since its governance role was transferred to the minister several years ago’ and that government funding was better spent ‘employing direct expert engagement when required’.[62]

Schedule 3—Communications

Schedule 3 of the Bill proposes a number of amendments across the Communications portfolio.[63] The most significant amendments are set out in Part 2 of Schedule 3 and relate to the repeal of the consultation requirements in the Broadcasting Services Act 1992, the Interactive Gambling Act 2001, the Radiocommunications Act 1992 and the Telecommunications Act 1997.[64] These amendments are identical to those contained in Part 2 of Schedule 2 to the Omnibus Repeal Day (Spring 2014) Bill 2014.[65]

Items 5–22 of Schedule 3 will remove the specific legislative requirements for consultation from the nominated Acts. For example, item 7 repeals subsections 130R(3), 130T(4), 130U(4), 130ZCA(5) and (6) and 130ZD(2) of the Broadcasting Services Act 1992. These provisions relate to industry codes and standards and require the Australian Communications Media Authority (ACMA) to consult with bodies or associations that represent relevant sections of the industry before making a determination. The Explanatory Memorandum provides that ‘these consultation provisions are considered unnecessary in light of the separate consultation requirements in Section 17 of the Legislative Instruments Act 2003 (LI Act).[66]

Section 17 of the LI Act sets out detailed requirements that rule-makers must comply with before making a legislative instrument, such as being satisfied that the consultation was appropriate and has been undertaken, having regard to any relevant matter including the extent to which the consultation drew on the knowledge of persons with expertise and ensuring that persons likely to be affected had opportunity to comment. The form of consultation could also involve notifying bodies or organisations representing persons who are likely to be affected by the proposed instrument and inviting submissions to be made to the rule-maker as well. In addition, subsection 26(1A) of the LI Act requires a description to be included in the explanatory statement to the instrument setting out the details of the consultation process. However, section 19 of the LI Act provides that failure to consult ‘does not affect the validity or enforceability of a legislative instrument’.

When examining the amendments contained in Part 2 of Schedule 2 to the Omnibus Repeal Day (Spring 2014) Bill 2014, the Scrutiny of Bills Committee raised some concerns about whether these changes amounted to an inappropriate delegation of legislative power.[67] Specifically, the Scrutiny of Bills Committee sought advice from the Parliamentary Secretary on whether the consultation requirements in section 17 of the LI Act coincide with those currently set out in the legislation:

The committee notes that while repealing the current consultation requirements in favour of the general consultation requirements in the LI Act may allow for increased flexibility, the LI Act requirements are not identical to the current consultation requirements. Furthermore, the committee notes that the ‘no invalidity’ clause in section 19 of the LI Act will now apply to consultation undertaken in relation to these provisions and therefore failure to consult will not affect the validity  or enforceability of the legislative instruments.[68]

The Committee noted that the same concerns exist with respect to the identical provisions contained in this Bill.[69] In his response to the Committee, the Assistant Minister argued that the consultation requirements in section 17 of the LI Act are for practical purposes the same as those currently prescribed.[70] He also reasoned that if the Parliament was ‘dissatisfied with the level of consultation taken’, Part 5 of the LI Act provides that the instrument can be disallowed.[71]

The Parliamentary Joint Committee on Human Rights also raised concerns over the proposed amendments. In particular, the Committee examined the removal of the requirement for ACMA to consult with interested persons when changing disability standards.[72] The Committee noted that the Government must demonstrate that section 17 of the LI Act ‘provides for as much, if not more, requirements to consult when any changes are made to disability standards’ as those currently specified under the legislation.[73] The Committee found that ‘the removal of this requirement engages and limits the right to equality and non-discrimination and the rights of persons with disabilities’ and that ‘the statement of compatibility does not sufficiently justify that limitation for the purposes of international human rights law’.[74] Consequently, the Committee sought advice from the Assistant Minister for Productivity on whether the measures could be justified.[75] At the time of writing this Digest, a response from the Assistant Minister had not been published. 

Schedule 5—Environment

Schedule 5 of the Bill proposes to amend the Carbon Credits (Carbon Farming Initiative) Act 2011 and the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act)[76] to ‘streamline and clarify regulatory arrangements’.[77] In his second reading speech Mr Dreyfus stated that Labor had some concerns in relation to Parts 3 and 4 of Schedule 5, which deal with the definition of assessment documentation and the removal of the requirement to publish certain decisions.[78]

In particular, Part 4 of the Schedule, which repeals subsection 74A(4) of the EPBC Act raises some issues. The Explanatory Memorandum provides that the purpose of this amendment is to ‘remove redundant and inaccurate publishing and notice requirements’.[79]

Under the EPBC Act, a person proposing to take an action may refer the proposed action to the Minister for his or her decision as to whether or not the action is a ‘controlled action’.[80] A ‘controlled action’ is an action that requires approval under Part 9 of the EPBC Act — for example, an action that will have or is likely to have a significant impact on a ‘matter of national environmental significance’.[81] Referrals are required to be published on the internet for public comment ‘as soon as practicable’ after their receipt.[82]

Section 74A provides that, if a referred action is component of a larger action, the Minister may decide not to accept the referral. The idea behind section 74A is to prevent projects being split into smaller referrals, or referred in stages, in order to circumvent the requirements of the EPBC Act. These are known as ‘split referrals’.[83]

If the Minister decides not to accept a ‘split referral’, under subsection 74A(2) the Minister must give written notice of the decision to the person who referred the proposal and to the person who is proposing to take the action. The Minister may also request that the larger action be referred.[84]

Currently subsection 74A(4) provides that if the Minister decides to accept the referral the Minister must give written notice to the person who referred the proposal and publish, in accordance with the regulations (if any), a copy or summary of the decision. The Environment Protection and Biodiversity Conservation Regulations 2000 do not currently prescribe any publication requirements for subsection 74A(4).[85]

The Explanatory Memorandum argues that as there is no obligation under section 74A for the Minister to make a decision to accept a referral, subsection 74A(4) is therefore redundant and inaccurate.[86] This subsection also appears to duplicate the requirements under subsection 74(3) of the EPBC Act, which require referrals to be published on the internet. While subsection 74A(4) as drafted does seem redundant and to duplicate existing provisions, perhaps it was intended to provide some public scrutiny of situations where the Minister has considered whether or not to accept a ‘split referral’ and has decided to accept that referral as is, rather than requesting that a larger action be referred. Instead of repealing subsection 74A(4), parliament may wish to consider whether the drafting of subsection 74A(4) could instead be clarified to improve the transparency of decision-making under section 74A.

Schedule 11—Prime Minister

Schedule 11 of the Bill repeals the Council for Aboriginal Reconciliation Act 1991[87] and amends the Aboriginal and Torres Strait Islander Commission Amendment Act 2005, the Classification (Publications, Films and Computer Games) Act 1995 and the Stronger Futures in the Northern Territory Act 2012 (Stronger Futures Act).[88]

The proposed amendments to the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 and the Stronger Futures Act are identical to those contained in Schedule 6 to the Omnibus Repeal Day (Spring 2014) Bill 2014.[89]

Item 200 of Schedule 1 of the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 provides that where an individual or body has acquired an interest in land, and the interest was acquired in certain circumstances set out in paragraphs 200(1)(a), (b) or (c),[90] then the individual or body cannot dispose of that interest unless the appropriate consenting authority had given written consent to that disposal. Item 4 of Schedule 11 inserts new subitem 200(1A) whereby the appropriate consenting authority can give written notice that consent in not required.[91] No rationale is in the explanatory material, but if the consenting authority does have discretion to decide that it need not consent, then this divestment of statutory restraint may provide simpler processes and procedures.

Section 15 of the Stronger Futures Act allows the federal Minister to request the Northern Territory Minister to appoint an assessor to conduct an assessment of particular licensed premises if the federal Minister has a reasonable belief that the sale of alcohol from the premises is causing substantial alcohol-related harm to the community. Item 14 of Schedule 11 will repeal section 15. The rationale for the repeal is two-fold, namely that the Minister cannot enforce the request so it is of limited impact, and secondly the repeal:

…will clarify and clean up the legislation and reduce Commonwealth interference in Northern Territory regulatory processes and policy.[92]

Item 14 of Schedule 11 of the Bill will also repeal section 28 of the Stronger Futures Act, which requires the Commonwealth and Northern Territory Ministers to facilitate an independent review of the operation of various Commonwealth and Northern Territory liquor laws, which is to be completed no later than three years after the commencement of the Stronger Futures Act.[93] While the Government has previously considered this review provision to be ‘redundant and unnecessary’, it has been forced by the time limits in the legislation to undertake such a review.[94] The final report of the review under section 28 was tabled on 16 September 2015.[95]

The Explanatory Memorandum notes that in 2014–15 the Government, in collaboration with the Northern Territory Government, ‘undertook a formal revision of the Stronger Futures National Partnership Agreement’, which the Explanatory Memorandum says provided ‘equivalent levels of scrutiny’ as those set out in section 28.[96]

Section 117 of the Stronger Futures Act provides that the Minister must also cause an independent review to be undertaken of the first three years operation of the Act. The review is to be completed and a report prepared before 16 July 2016. Section 117 will be repealed by item 16 of Schedule 11. This will mean that there will be no independent statutory reviews of the Stronger Futures Act.[97] The Explanatory Memorandum argues that due to the review previously undertaken of the Stronger Futures National Partnership Agreement any additional review would be ‘unnecessary and duplicative’.[98]  Reference was also made to the fact that the Government is currently negotiating a new National Partnership Agreement which would contain specific review points of the operation of those measures [underpinned by the Stronger Futures Act] with an equivalent level of scrutiny.[99]

The Parliamentary Joint Committee on Human Rights questioned the Government’s claim that such a review would be redundant and duplicative, especially as the new National Partnership Agreement has not yet been finalised.[100] The Committee also concluded that the proposed review process to be contained in the new National Partnership Agreement would not provide an equivalent review process to the legislated requirement prescribed under section 117 of the Stronger Futures Act and therefore any measures contained in the agreement may not be appropriately evaluated.[101] The Committee also commented that the removal of the legislated requirement for independent review of the Stronger Futures measures ‘may affect the proportionality of any limitations on rights posed by the Stronger Future measures and impact on whether such measures can be considered to justifiably limit human rights’.[102] The shifts of responsibility between the Commonwealth and the Northern Territory have been contentious and these are documented in the digests for the legislation that introduced the Northern Territory Emergency Response.[103] There is currently other legislation before the Parliament dealing with other aspects of the intervention and its history.[104]

Schedule 12—Social Services

Schedule 12 of the Bill introduces a number of amendments in relation to the Social Services Portfolio. The Scrutiny of Bills Committee has drawn attention to the amendments contained in Part 1 of Schedule 12 of the Bill, which relate to the use or disclosure of a person’s personal information.[105] Item 1 of Schedule 12 of the Bill amends paragraph 202(2)(e) of the Social Security (Administration) Act 1999[106] ‘to allow a person to disclose (or further use or record) protected information that has been disclosed to them under subsection 202(2C) of the Act for the purposes of research, statistical analysis or policy development’.[107] This can only occur where the recording, disclosure or use of the information is made for the same purpose for which it was originally disclosed to the person under subsection 202(2C).[108] The Scrutiny of Bills Committee accepted the Government’s detailed justification for these amendments, noting that ‘safeguards are in place which will ensure that disclosures under this provision will not constitute arbitrary interferences with a person’s privacy’.[109] For example, persons who handle protected information will need to enter into deeds of confidentiality and researchers will need to enter into contracts/Memoranda of Understanding which set out their obligations when using such information.[110]

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[1].              Parliament of Australia, ‘Amending Acts 1990 to 1999 Repeal Bill 2015 homepage’, Australian Parliament website, accessed 5 February 2016. See also C Petrie, Amending Acts 1990 to 1999 Repeal Bill 2015, Bills digest, 57, 2015–16, Parliamentary Library, Canberra, 2015, accessed 3 February 2016.

[2].              Parliament of Australia, ‘Statute Law Revision Bill (No. 3) 2015 homepage’, Australian Parliament website, accessed 5 February 2016. See also M Coombs, Statute Law Revision Bill (No. 3) 2015, Bills digest, 58, 2015–16, Parliamentary Library, Canberra, 2015, accessed 3 February 2016.

[3].              Bills Digests have been prepared with respect to each Bill: D Spooner and J Chowns, Omnibus Repeal Day (Autumn 2014) Bill 2014, Bills digest, 67, 2013–14, Parliamentary Library, Canberra, 2014; D Spooner, Omnibus Repeal Day (Spring 2014) Bill 2014, Bills digest, 62, 2014–15, Parliamentary Library, Canberra, 2014; T Fox, Omnibus Repeal Day (Autumn 2015) Bill 2015, Bills digest, 97, 2014–15, Parliamentary Library, Canberra, 2015.

[4].              D Spooner and J Chowns, Omnibus Repeal Day (Autumn 2014) Bill 2014, op. cit., p. 2.

[5].              Explanatory Memorandum, Omnibus Repeal Day (Spring 2015) Bill 2015, p. 1, accessed 22 January 2015.

[6].              P Hendy, ‘Second reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, House of Representatives, Debates, 12 November 2015,
p. 13016, accessed 21 January 2015.

[7].              T Zappia, ‘Second reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, House of Representatives, Debates, 2 December 2015,
p. 14477, accessed 21 January 2015.

[8].              Both the ACT (section 89 (Automatic repeal of certain laws and provisions), Legislation Act 2001 (ACT)) and Queensland (section 22C (Automatic repeal of amending Act) Acts Interpretation Act 1954 (Qld)) have such legislative provisions: K Magarey, Amending Acts 1980 to 1989 Repeal Bill 2015, Bills digest, 103, 2014–15, Parliamentary Library, Canberra, 2015, p. 3, accessed 16 February 2016.

[9].              Ibid. See, for example, section 10 of the Corrections Amendment (Further Parole Reform) Act 2014 (Vic), accessed 17 February 2016. 

[10].              Legislative Instruments Act 2003, accessed 16 February 2016.

[11].              P Hendy, ‘Spent rules have no place in innovation nation’, The Australian, 4 February 2016, p. 12, accessed 9 February 2016.

[12].              Ibid.

[13].              Ibid.

[14].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 13, 2015, The Senate, 25 November 2015, pp. 30–32 (PDF version), accessed 27 November 2015.

[15].              Ibid., p. 30.

[16].              Ibid.

[17].              Ibid., p. 31.

[18].              Ibid.

[19].              Senate Standing Committee for the Scrutiny of Bills, Report, 1, 2016, The Senate, 3 February 2016, p. 33 (PDF version), accessed 10 February 2016.

[20].              Ibid.

[21].              Ibid., p. 34.

[22].              P Hendy, ‘Spent rules have no place in innovation nation’, op. cit.

[23].              Ibid., pp. 31–32. Parliament of Australia, ‘Omnibus Repeal Day (Spring 2014) Bill 2014 homepage’, Australian Parliament website, accessed 5 February 2016.

[24].              Ibid., p. 32.

[25].              Ibid.

[26].              Senate Standing Committee for the Scrutiny of Bills, Report, 1, op. cit., p. 35.

[27].              Ibid.

[28].              M Cash, ‘Second reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, Senate, Debates, 2 February 2016,
p. 79; Addendum to the Explanatory Memorandum, Omnibus Repeal Day (Spring 2015) Bill 2015, both accessed 17 February 2016.

[29].              Senate Standing Committee for the Selection of Bills, Report, 15, 2015, The Senate, 26 November 2015, accessed 22 January 2015.

[30].              Senate Finance and Public Administration Legislation Committee, ‘Omnibus Repeal Day (Spring 2015) Bill 2015’, Parliament of Australia website, accessed 22 January 2015.

[31].              Senate Finance and Public Administration Legislation Committee, Inquiry into the provisions of the Omnibus Repeal Day (Spring 2015) Bill 2015, The Senate, Canberra, 2016, accessed 9 February 2016.

[32].              Ibid., p. 6.

[33].              Ibid., p. 7.

[34].              The Statement of Compatibility with Human Rights can be found at pages 88–101 of the Explanatory Memorandum to the Bill.

[35].              Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament, November 2015, pp. 4–11.

[36].              M Dreyfus, ‘Second reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, House of Representatives, Debates, 1 December 2015,
pp. 14375–76, accessed 21 January 2015.

[37].              Ibid., pp. 14374–75.

[38].              Explanatory Memorandum, op. cit., p. 2.

[39].              These savings relate to the provisions in Schedules 7 and 12 of the Bill: Department of the Prime Minister and Cabinet (PM&C), The Australian Government Spring Repeal Day November 2015, PM&C, Canberra, 2015, pp. 25–35, accessed 22 January 2015.

[40].              M Dreyfus, ‘Second reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, op. cit., p. 14375.

[41].              Items 1–9 of Schedule 1 of the Bill. Rural Adjustment Act 1992, Wool International Act 1993 and Wool International Privatisation Act 1999, accessed 22 January 2015.

[42].              Items 10 and 11 of Schedule 1 of the Bill, which amend the Agricultural and Veterinary Chemicals Code Act 1994, accessed 5 February 2016. A detailed explanation of this amendment is set out here: PM&C, The Australian Government Spring Repeal Day November 2015, op. cit., p. 26.

[43].              Items 22–25 of Schedule 1 of the Bill, which abolish the Fishing Industry Policy Council, were included in the Omnibus Repeal Day (Spring 2014) Bill 2014 (at items 1 to 4 of Schedule 1 of that Bill) and are discussed in the corresponding Bills Digest:
D Spooner, Omnibus Repeal Day (Spring 2014) Bill 2014, op. cit., p. 3. Items 12–21 amend the Agricultural and Veterinary Chemicals (Administration) Act 1992 to remove any reference to the APVMA Advisory Board.

[44].              Items 26–32 of Schedule 1 of the Bill. Australian Meat and Live-stock Industry Act 1997, accessed 22 January 2015.

[45].              J Fitzgibbon, ‘Second reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, House of Representatives, Debates, 2 December 2015,
pp. 14472–14473, accessed 21 January 2015; A Vidot, ‘Animal Medicines Australia unconcerned by decision to scrap chemical regulator advisory board’, ABC Rural, (online edition), 29 September 2015, accessed 21 January 2015.

[46].              Explanatory Memorandum, op. cit., p. 7.

[47].              National Rural Advisory Council (NRAC), Annual report 2014–15, NRAC, Canberra, 30 June 2015, p. 2, accessed 9 February 2016.

[48].              Ibid.

[49].              National Commission of Audit (NCoA), Towards responsible government—phase 2 of the report of the National Commission of Audit, NCoA, Canberra, 2014, p. 90, accessed 9 February 2016.

[50].              M Cormann (Minister for Finance), Smaller government—towards a sustainable future, Ministerial paper, Minister for Finance, Canberra, December 2014, p. 9, accessed 22 January 2015.

[51].              Explanatory Memorandum, op. cit., p. 7.

[52].              Ibid.

[53].              Department of Finance, ‘Agricultural Industry Advisory Council’, website, accessed 9 February 2016.

[54].              J Fitzgibbon, ‘Second reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, op. cit., p. 14473.

[55].              Department of Agriculture and Water Resources, Submission to the Senate Finance and Public Administration Legislation Committee, Inquiry into the Omnibus Repeal Day (Spring 2015) Bill 2015, 16 December 2015, p. 2, accessed 22 January 2015.

[56].              Australian Pesticides and Veterinary Medicine Authority, ‘Advisory Board’, website, accessed 9 February 2015.

[57].              Subsection 17(2) of the Agricultural and Veterinary Chemicals (Administration) Act 1992.

[58].              National Commission of Audit (NCoA), Towards responsible government—phase 2 of the report of the National Commission of Audit, op. cit.,
p. 90.

[59].              PM&C, The Australian Government Spring Repeal Day November 2015, op. cit., p. 26.

[60].              More information on these mechanisms is set out at page 10 of the Explanatory Memorandum.

[61].              A Vidot, ‘Animal Medicines Australia unconcerned by decision to scrap chemical regulator advisory board’, op. cit.

[62].              Ibid.

[63].              A detailed summary of these amendments can be accessed here: PM&C, The Australian Government Spring Repeal Day November 2015, op. cit., p. 27.

[64].              Broadcasting Services Act 1992, Interactive Gambling Act 2001, Radiocommunications Act 1992 and Telecommunications Act 1997, accessed 22 January 2015.

[65].              The analysis of these provisions has been taken from the Bills Digest to the Omnibus Repeal Day (Spring 2014) Bill 2014: D Spooner, Omnibus Repeal Day (Spring 2014) Bill 2014, op. cit., pp. 3–4.

[66].              Explanatory Memorandum, op. cit., p. 16. Legislative Instruments Act 2003, accessed 22 January 2015.

[67].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 13, op. cit., pp. 32–37.

[68].              Ibid., p. 37.

[69].              Ibid., p. 32.

[70].              Senate Standing Committee for the Scrutiny of Bills, Report, 1, op. cit., p. 37.

[71].              Ibid.

[72].              Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament, pp. 4–8.

[73].              Ibid., p. 6.

[74].              Ibid., p. 8.

[75].              Ibid.

[76].              Carbon Credits (Carbon Farming Initiative) Act 2011 and Environment Protection and Biodiversity Conservation Act 1999, accessed 22 January 2015.

[77].              Explanatory Memorandum, op. cit., p. 27.

[78].              M Dreyfus, ‘Second reading speech: Omnibus Repeal Day (Spring 2015) Bill 2015’, op. cit., p. 14375.

[79].              Explanatory Memorandum, op. cit., p. 31.

[80].              EPBC Act, section 68.

[81].              EPBC Act, section 67. Matters of national environmental significance are listed in sections 12–24E of the EPBC Act. See also Department of the Environment (DoE), ‘What is protected under the EPBC Act?’, DoE website, accessed 11 February 2016.

[82].              EPBC Act, subsection 74(3).

[83].              See further DoE, EPBC Act Policy Statement — Staged Developments — Split referrals: Section 71A of the EPBC Act, DoE website, accessed 11 February 2016.

[84].              EPBC Act, paragraph 74A(2)(c).

[85].              Environment Protection and Biodiversity Conservation Regulations 2000, accessed 11 February 2016.

[86].              Explanatory Memorandum, op. cit., p. 31.

[87].              Council for Aboriginal Reconciliation Act 1991, accessed 27 January 2015. Section 32 of the Council for Aboriginal Reconciliation Act 1991 provides that the Act ceases to be in force on 1 January 2001 and it has therefore ceased. It is unclear why the Act needs to be repealed.

[88].              Aboriginal and Torres Strait Islander Commission Amendment Act 2005, Classification (Publications, Films and Computer Games) Act 1995 and the Stronger Futures in the Northern Territory Act 2012, accessed 27 January 2015.

[89].              The analysis of these provisions has been taken from the Bills Digest to the Omnibus Repeal Day (Spring 2014) Bill 2014: D Spooner, Omnibus Repeal Day (Spring 2014) Bill 2014, op. cit., pp. 5–6.

[90].              The circumstances are that the interest was acquired as a result of a grant (of money or land) from, or a loan that was guaranteed by, the Aboriginal and Torres Strait Islander Commission (ATSIC). 

[91].              Subitem 200(13) of the Aboriginal and Torres Strait Islander Commission Amendment Act 2005 sets out the definition of ‘appropriate consenting authority’.

[92].              Explanatory Memorandum, op. cit., p. 54.

[93].              The Stronger Futures Act received Royal Assent on 29 June 2012 and commenced on 16 July 2012.

[94].              Explanatory Memorandum, op. cit., p. 53.

[95].              Ibid. Minter Ellison, Stronger Futures in the Northern Territory Act: Independent review of the effectiveness of Northern Territory and Commonwealth laws in reducing alcohol-related harm, Department of Prime Minister and Cabinet, 6 August 2015; Australia, Senate, Journals, 117, 2015–16, 16 September 2015, p. 3130, both accessed 18 February 2016.

[96].              Ibid., p. 54.

[97].              Ibid.

[98].              Ibid., p. 55.

[99].              Ibid., p. 95.

[100].              Parliamentary Joint Committee on Human Rights, Thirty-first report of the 44th Parliament, op. cit., p. 9.

[101].              Ibid.

[102].              Ibid., pp. 10–11.

[103].              M Coombs, C Dow, J Gardiner-Garden, S Harris-Rimmer, B Jaggers, R Jolly, K Magarey, P O’Neill, D Spooner, P Tan and J Tomaras, Northern Territory National Emergency Response Bill 2007, Bills digest, 28, 2007–08, Parliamentary Library, Canberra, 2007, accessed 16 February 2016; J Gardiner-Garden and K Magarey, Stronger Futures in the Northern Territory Bill 2011, Bills digest, 103, 2011–12, Parliamentary Library, Canberra, 2012, accessed 16 February 2016.

[104].              Parliament of Australia, ‘Social Security Legislation Amendment (Community Development Program) Bill 2015’, Australian Parliament website, accessed 16 February 2016.

[105].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 13, op. cit., pp. 37–38.

[106].              Social Security (Administration) Act 1999, accessed 27 January 2015.

[107].              Explanatory Memorandum, op. cit., p. 56.

[108].              Subsection 202(2C) provides that a person can obtain, make a record, disclose or use protected information where the Secretary believes, on reasonable grounds, that it is necessary for research into matters of relevance to a Department that is administering any part of the social security law, statistical analysis of matters of relevance to a Department that is administering any part of the social security law or policy development.

[109].              Senate Standing Committee for the Scrutiny of Bills, Alert digest, 13, op. cit., p. 37.

[110].              The Statement of Compatibility also notes that the Privacy Act 1988 will also continue to apply: Explanatory Memorandum, op. cit., p. 97.