Bills Digest no. 58 2015–16
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WARNING: This Digest was prepared for debate. It reflects the legislation as introduced and does not canvass subsequent amendments. This Digest does not have any official legal status. Other sources should be consulted to determine the subsequent official status of the Bill.
Moira Coombs
Law and Bills Digest Section
25 November 2015
Contents
Purpose
of the Bill
Background
Committee consideration
Policy position of non-government parties/independents
Financial implications
Statement of Compatibility with Human Rights
Key issues and provisions
Date introduced: 12
November 2015
House: House of
Representatives
Portfolio: Attorney-General
Commencement: Sections
1 to 3 commence on Royal Assent. Schedule 1 and Schedules 4 to 6 commence on
the 28th day after Royal Assent. Schedules 2 and 3 commence after certain
provisions of other Acts have commenced.
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.
The purpose of the Statute Law Revision Bill (No. 3) 2015
(the Bill) is to make minor amendments and to correct various errors occurring
in statutes.
The Bill amends:
- errors
in 17 principal Acts, removing redundant text and renumbering certain
provisions (Schedule 1)
- corrects
misdescribed amendments in two amending Acts (Schedule 2)
- updates
provisions in relation to binding the Crown in one principal Act (Schedule 3)
- modernises
expressions used in relation to a person who commits an offence to accord with
current Commonwealth drafting practice in 140 principal Acts in Part 1 and 52
principal Acts in Part 2 (Schedule 4)
- updates
the term ‘reference base’ to ‘index reference period’ used in relation to
statistical indices to accord with preferred terminology of the Australian
Bureau of Statistics in eight principal Acts (Schedule 5) and
- repeals
spent and obsolete provisions in five principal Acts (Schedule 6).
The Assistant Minister for Productivity, Dr Hendy noted in
his second reading speech that the Bill is part of the Government’s 2015 Spring
Repeal Day package, which contributes to its ongoing efforts to repeal spent or
redundant legislation and to correct minor errors in Commonwealth laws.[1]
Statute law revision legislation has been a feature of the legislative
landscape since 1934 when the first Statute Law Revision Act 1934 was passed.
The Attorney-General at that time, John Latham, noted in his second reading
speech that:
There is an obligation resting upon the Government of the
Commonwealth, and upon this Parliament, to present the statute law of the
Commonwealth in a convenient, accessible and readily intelligible form. We try
to do that as the legislation is drafted, and as it is passed through
Parliament from time to time; but as the years go by it becomes evident that
there is a great deal of obsolete matter on the statute-book. The object of
this Bill is merely to cut away the dead wood on the statute-book.[2]
Cutting away the dead wood is an ongoing process of
keeping the statute books accurate and up to date. Statute Law Revision Bills
are traditionally non-controversial, and receive the support of the Parliament,
as they are regarded as an essential tool in the process of keeping orderly,
accurate and up-to-date Commonwealth statute books.[3]
As the Attorney-General commented in his second reading for the 2010 Statute
Law Revision Bill:
This continual process of statutory review complements the
government’s commitment to creating clearer Commonwealth laws. This connection
was aptly put in a media article which referred to the previous Statute Law
Revision Bill as ‘hoovering up statutory detritus’. There is no doubt that the
review process undertaken in the preparation of this Bill
serves to ensure the statute book contains less clutter, in the form of
outdated cross‑references, by repealing obsolete acts.[4]
The Attorney-General further noted:
The Bills do not make substantive changes to
law but still perform the important function of repairing minor errors in the
Commonwealth statute books and improving the accuracy and usability of
consolidated versions of Commonwealth acts.[5]
Senate Standing for the Selection
of Bills
At its meeting on 11 November 2015, the Committee deferred
consideration of the Bill to its next meeting.[6]
Senate Standing Committee for the
Scrutiny of Bills
To date, the Senate Standing Committee for the Scrutiny of
Bills has not made any comment on the Bill.
It would appear that there has been no comment on the Bill
by non-government parties or independents to date.
The Explanatory Memorandum notes that the Bill will have
no financial impact.[7]
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.[8]
Parliamentary Joint Committee on Human
Rights
The Parliamentary Joint Committee on Human Rights has not
made any comment on the Bill to date.
Schedule 1—Amendments of principal
Acts
Schedule 1, items 1 to 27 make minor amendments
to 17 principal Acts to correct various errors occurring in the text of the
legislation concerned. The amendments:
- correct
misnumbered provisions
- correct
typographical errors
- correct
cross-references
- remove
redundant definitions and text
- correct
references to Acts and
- fix
grammatical errors.
Schedule 2—Amendments of amending
Acts
Items 1 to 3 of Schedule 2 correct misdescribed
amendments in two amending Acts. The corrections will have a retrospective
commencement date.
Items 1 and 2 correct item 1 of Schedule 8 in the Broadcasting
and Other Legislation Amendment (Deregulation) Act 2015 and commence
immediately after item 1 of Schedule 8 of that Act commenced, which was 20
March 2015.[9]
Item 3 of Schedule 2 corrects a misdescribed amendment
in Schedule 1 of the Primary Industries Levies and Charges Collection
(Consequential Provisions) Act 1991 and will be taken to have commenced as
of 1 July 1991.
Schedule 3—Binding the Crown
Currently section 8 of the Child Support (Registration
and Collection) Act 1988 provides that the Act binds the Crown in right of
the Commonwealth, all the States, the Northern Territory and Norfolk Island and
that nothing in the Act renders the Crown liable to prosecution for an offence.[10]
The Australian Capital Territory is not mentioned as the provision came into
force prior to ACT self‑government. Item 1 of Schedule 3 repeals
section 8 and substitutes proposed section 8. The updated provision states
that the Act binds the Crown in each of its capacities. As a result, the
Commonwealth, states, the Northern Territory and the ACT will be bound.[11]
Proposed section 8 also provides that the Act does not make the Crown
liable to be prosecuted for an offence. Schedule 3 commences on the day after
the Bill receives Royal Assent or immediately after Part 1 of Schedule 2 of the
Norfolk Island Legislation Amendment Act 2015 commences, whichever is
the later. The Norfolk Island Legislation Amendment Act 2015 (which is
relevant here because it also contains amendments to section 8 of the Child
Support (Registration and Collection) Act) will commence on 1 July 2016.[12]
Schedule 4—Guilty of an offence
Part 1 amends 140 principal Acts. According to the
Explanatory Memorandum, current drafting practice now recommends the use of the
expression ‘a person commits an offence’ rather than ‘a person is guilty of an
offence’. This acknowledges, as the Explanatory Memorandum notes, that it is
the role of the court to find persons guilty of an offence, as stated by
Justice Deane in Polyukhovich v Commonwealth:
... the whole focus of a criminal trial is the ascertainment of
whether it is established that the accused in fact committed a past act which
constituted a criminal contravention of the requirements of a valid law which
was applicable to the act at the time the act was done. It is the determination
of that question which lies at the heart of the exclusively judicial function
of the adjudgment of criminal guilt.[13]
Part 1, items 1 to 328 omit the term ‘is guilty of’
and substitutes the term ‘commits’ in various offence provisions.
Part 2, items 329 to 439 amends 52 principal Acts. Part
2 involves amendments to offence provisions that contain variants on the
wording seen in the provisions in Part 1, such as ‘are each guilty of’, ‘shall
be guilty of’ or ‘is not guilty of’. As with Part 1, these offence provisions
are updated to replace ‘guilty of’ with ‘commits’ or ‘is not guilty of’ with
‘does not commit’.
Schedule 5—Indexation provisions
Schedule 5 deals with indexation provisions in various Acts,
such as the Child Support (Registration and Collection) Act 1988, the
Social Security Act 1991 and the Veterans’ Entitlements Act 1986. These
provisions set out methods that are used to adjust various monetary amounts to
reflect the impact of inflation. Items 1 to 6, 8, 10 and 12 change the
term ‘reference base’ where it occurs to ‘index reference period’. This is the
preferred term of the Australian Bureau of Statistics. The Explanatory
Memorandum notes that the changes do not change the legal effect of the
provisions concerned.[14]
Items 7, 9 and 11 substitute existing section headings to reflect the
changed terminology.
Schedule 6—Repeals of spent and
obsolete provisions
Schedule 6 amends five principal Acts by repealing spent
or obsolete provisions. Items 1 to 3 and 6 repeal provisions
that required reviews to be carried out at prescribed times and the reports of
those reviews to be tabled in Parliament. The relevant reviews and reports have
been completed and tabled, thereby making those provisions redundant.
Items 4 and 5 refer to section 12A and Schedule 1
of the Social Security (International Agreements) Act 1999, which are
now redundant.[15]
The provisions were intended to preserve the effect of the Agreement between
Australia and the United Kingdom for people arriving in Australia prior to 1
March 2001 when the Agreement terminated. It enabled people to qualify for
specified social security payments under the Social Security Act 1991.
The people concerned would by now have qualified under domestic legislation,
according to the Explanatory Memorandum.[16]
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[1]. P
Hendy, ‘Second
reading speech: Statute Law Revision Bill (No. 3) 2015,’ House of
Representatives, Debates, (proof), 12 November 2015, p. 10, accessed
24 November 2015.
[2]. J
Latham, ‘Second
reading speech: Statute Law Revision Bill 1934’, House of Representatives, Debates,
2 August 1934, pp. 1073–76, accessed 24 November 2015.
[3]. D
Spooner, Statute
Law Revision Bill (No. 2) 2010, Bills digest, 60, 2010-11,
Parliamentary Library, Canberra, 2011, p. 2, accessed
24 November 2015.
[4]. R
McClelland, ‘Second
reading speech: Statute Law Revision Bill (No.2) 2010’, House of Representatives, Debates,
24 November 2010, p. 3549, accessed 24 November 2015.
[5]. Ibid.
[6]. Senate
Standing Committee on the Selection of Bills, Report,
14, 2015, The Senate, 12 November 2015, accessed 19 November 2015.
[7]. Explanatory
Memorandum, Statute Law Revision Bill (No. 3) 2015, p. 2, accessed 24
November 2015.
[8]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Bill.
[9]. Broadcasting
and Other Legislation Amendment (Deregulation) Act 2015, accessed 24
November 2015.
[10]. Child Support
(Registration and Collection) Act 1988, accessed 24 November 2015.
[11]. The
‘crown in the right of Norfolk Island [will] cease to be an operative concept’
once the governance changes to Norfolk Island, contained in the Norfolk Island
Legislation Amendment Act 2015 and related legislation are complete.
See Explanatory
Memorandum, Norfolk Island Legislation Amendment Bill
2015, p. 39, accessed 25 November 2015.
[12]. Norfolk Island
Legislation Amendment Act 2015, accessed 24 November 2015. See section
2 for commencement details and items 85 and 86 of Schedule 2 for amendments to
section 8 of the Child Support (Registration and Collection) Act 1988.
[13]. Polyukhovich
v Commonwealth (“War Crimes Act case”) (1991) 172 CLR 501, [1991] HCA 32,
per Deane J at [27].
[14]. Explanatory
Memorandum, op. cit., p. 11.
[15]. Social Security
(International Agreements) Act 1999, accessed 24 November 2015.
[16]. Explanatory
Memorandum, op. cit., p. 12.
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