Bills Digest no. 11,
PDF version [556KB]
Law & Bills Digest Section
This Digest replaces the 14 September 2016 version,
to reflect the report of the Senate Scrutiny of Bills released on that date.
History of the Bill
Purpose of the Bill
Structure of the Bill
First Parliamentary Counsel’s
editorial powers under the Legislation Act 2003
Senate Selection of Bills Committee
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
Statement of Compatibility with Human
Key issues and provisions
Schedule 1—References to dollar
Schedule 2—References ‘maximum
Schedule 3—Amending Acts
Date introduced: 1
House: House of
the 28th day after Royal Assent.
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
When Bills have been passed and have received Royal Assent,
they become Acts, which can be found at the Federal Register of Legislation
All hyperlinks in this Bills Digest are correct as
at September 2016.
An almost identical version of this Bill was introduced
into the 44th Parliament on 3 March 2016. That
Bill had not passed the House of Representatives when Parliament was prorogued
on 15 April 2016. The Bill lapsed on prorogation of Parliament.
The purpose of the Statute Update Bill 2016 (the Bill) is
to update provisions in relevant Acts so as to align and be consistent with contemporary
drafting precedents and practice, thus serving to enhance clarity, readability
and administration of relevant legislation.
of the Bill
This is an omnibus bill which contains four schedules and proposes
a large number of amendments across a large number of portfolios to:
penalties expressed as a number of dollars with penalties expressed as a number
of penalty units in 100 principal Acts (Schedule 1)
references to ‘maximum penalty’ with references to ‘penalty’ in 27 principal
Acts (Schedule 2)
the evidentiary status of certain certificates and registers in the provisions
of 32 principal Acts, to provide that the evidentiary status of a certificate
(or other instrument or register) is prima facie evidence of the matters stated
in it (Schedule 3)
references in four principal Acts (consistent with the amendments made in
Schedule 3 of the Statute
Law Revision Act 2012)
so that they refer to aircraft registered ‘under regulations made under the Civil
Aviation Act 1988’ rather than referring to the specific regulations by
name (Schedule 4).
According to the Explanatory Memorandum, this Statute Update
Bill was required to take account of changes to drafting precedents and
practice which were not considered appropriate to include in a Statute Law
Revision Bill because some of them would resulting in minor changes to the
substance of the law. 
Substantive changes are not considered appropriate for inclusion in Statute Law
First Parliamentary Counsel’s editorial powers under the
Legislation Act 2003
The Office of Parliamentary Counsel (OPC) is an
independent statutory agency responsible for drafting proposed Commonwealth
laws and subordinate legislation, and performing related functions. OPC is headed
by First Parliamentary Counsel (FPC) who is authorised to, among other things,
approve editorial and other technical matters suitable for inclusion in
appropriate amending Bills.
Since March 2016, under section 15V of the Legislation Act
2003 (Cth) (Legislation Act), the FPC is empowered to make minor
editorial or presentational changes to the text of an Act in preparing a
for registration on the Federal Register of Legislation (FRL).
These editorial changes have effect as though they were made by amendments to
the original Act.
The editorial changes are only permitted where the FPC considers that the
change is needed to bring the Act or instrument into line with, or more closely
into line with, legislative drafting practices of OPC; or to correct an error
or a misdescribed amendment.
Significantly, such an editorial change must not change the substantive effect
of the law.
Because at least some of the otherwise minor amendments to
this Bill will alter the substance of the law, it would not have been
appropriate to use the editorial change power in section 15V to effect the
Senate Selection of Bills Committee
The Senate Section of Bills Committee resolved to defer
consideration of this Bill until its next meeting.
Standing Committee for the Scrutiny of Bills
The version of this Bill introduced in the 44th Parliament
in March of this year was considered by the Scrutiny of Bills Committee in May
At that time, the Scrutiny of Bills Committee sought the Attorney-General’s
advice ‘as to whether section 4AB of the Crimes Act 1914 applies to
existing regulation-making powers that authorise regulations to prescribe
offences with penalties not exceeding an amount expressed in dollars’.
In its report of 14 September 2016, the Scrutiny Committee
noted that the Explanatory Memorandum to the current Bill confirms that section
4AB of the Crimes Act applies to these provisions.
The Committee thanked the Attorney-General for including this information and
had no further comment on the Bill.
position of non-government parties/independents
At the time of writing, the position of non-government
parties and independents had not been publically articulated.
The Explanatory Memorandum notes that the Bill will have
no financial impact.
Statement of Compatibility with 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 as the proposed amendments
represent ‘minor technical corrections and improvements’ resulting in ‘either
no change or only minor changes to the substance of the law’, which do not
engage and human rights. 
The Parliamentary Joint Committee on Human Rights
considered that the version of the Bill introduced in March 2016 did not
raise human rights concerns.
Schedule 1—References to dollar penalties
A number of older Commonwealth Acts still contain
references to a penalty for an offence expressed as a dollar amount. The
amendments proposed under Schedule 1 substitute penalties expressed as a number
of dollars with penalties expressed as a number of penalty units in 100
Current Commonwealth drafting principle and practice is
that a penalty for an offence should be expressed in ‘penalty units’ rather
than dollar amounts.
Section 4AA of the Crimes
(Cth) specifies the current monetary value of a penalty unit equals $180. The
rationale for expressing a penalty as a penalty unit rather than a dollar
amount is that it:
... facilitates the uniform adjustment of penalties across
legislation from time to time to reflect the changing value of money. This also
ensures that the relationship between the levels of maximum fines and
imprisonment penalties is preserved despite this change.
Section 4AB of the Crimes Act provides for the
automatic conversion of penalties expressed in dollars into penalties expressed
in penalty units, which is a time-inefficient process. In addition, the
retention of dollar amounts in some pieces of legislation is misleading as they
can appear to be less than the actual legal penalty calculated in accordance
with section 4AB. The Explanatory Memorandum states that this is because the
conversion from dollars to penalty units involves ‘dividing the number of
dollars by 100, and rounding up to the next whole number if necessary, [to work
out the penalty unit amount] which leads to a higher penalty than is stated in
For example, if an offence sets out a penalty of $5,000, this would be
converted into a reference to a penalty of 50 penalty units, which is currently
$9,000—a significantly higher penalty than that which appears on the face of
the legislation. The proposed amendments are designed to remove the need for
such conversion and to provide clarity as to the penalty involved for the
Schedule 2—References ‘maximum penalty’
Current Commonwealth drafting practice is that ‘a penalty
will be read as being a maximum penalty unless the contrary intention appears.’
This is provided in section 4D of the Crimes Act 1914
(Cth). Accordingly, the proposed amendments in Schedule 2 substitute references
to ‘maximum penalty’ with references to ‘penalty’ in 27 principal Acts. Minor
consequential changes are also made as a result of substituting references to
A number of Commonwealth Acts contain provisions that
enable a person or entity to provide proof of a formal or technical matter that
is not likely to be in dispute (though may be difficult to prove under the
normal evidential rules) by providing an evidentiary certificate (or other
instrument) is prima facie, evidence of the matter that is stated in it. For
example, a reporting scientist may provide an evidentiary certificate in a
criminal proceeding stating that any of the following is evidence of the matter
a stated thing was received at a stated laboratory on a stated day
the thing was tested at the laboratory on a stated day or between stated days
a stated DNA profile has been obtained from the thing
the reporting scientist:
the laboratory's records relating to the receipt, storage and testing of the
thing, including any test process that was done by someone other than the
reporting scientist; and
the records indicate all quality assurance procedures for the receipt, storage
and testing of the thing that were in place in the laboratory at the time of
the test were complied with.
Another example is an evidentiary certificate supplied by
Centrelink to Pension Bonus Scheme members, to acknowledge that they have met
the work test for the period indicated on the certificate.
Current Commonwealth drafting practice is to include a
provision in the relevant legislation stating that an evidentiary certificate
is either conclusive or prima facie evidence of the matters contained in that
certificate. The Explanatory Memorandum states that the proposed amendments in Schedule
3 of the Bill relate to provisions in Acts that deal with the evidentiary
status of a certificate (or other instrument or register) to clarify that for
those provisions, an evidentiary certificate is prima facie evidence of the
matters stated in it.
of Australia, ‘Statute
Update Bill 2016 homepage’, Australian Parliament website.
Ferris, Statute Law Revision Bill 2012, Bills
digest, 16, 2012–13, Parliamentary Library, Canberra, 2012.
Memorandum, Statute Update Bill 2016, p. 2.
of the Prime Minister and Cabinet (PM&C), Legislation
handbook, 4th edn., PM&C, Canberra, 1999, p. 24.
Office of Parliamentary Counsel (OPC), Drafting direction
no. 4.4—changes using FPC's editorial powers and statute law revision
amendments, document release 2.0, reissued 29 February 2016, pp. 7–8; PM&C,
handbook, op. cit., p. 24.
more detail refer to C Raymond, Statute
Law Revision (Spring 2016) Bill 2016, Bills digest, 8, 2016–17,
Parliamentary Library, Canberra, 2016. A ‘compilation’ of an Act is a point in
time collation of an Act as it was originally enacted by a ‘principal Act’, and
any amendments made to its provisions over time by an ‘amending Act’ such as
repealing and substituting particular provisions or parts of provisions.
Act 2003 (Cth) (Legislation Act), Chapter 2, Part 2, Division
3, inserted by the Acts and Instruments (Framework Reform)
See also: D Spooner, Acts
and Instruments (Framework Reform) Bill 2014, Bills digest, 70, 2014–15,
Parliamentary Library, Canberra 2014.
Act, section 15W.
Act, subsection 15V(2). (This provision also covers editorial changes
to legislative and notifiable instruments.) Subsection 15V(4) imposes a
corresponding condition on the exercise of the power under subsection 15V(3) to
make presentational changes.
Act, subsection 15V(6).
Standing Committee for Selection of Bills, Report,
5, 2016, The Senate, amended 1 September 2016.
. Senate Standing Committee for the Scrutiny of Bills, Alert
digest, 5, 2016, The Senate, 3 May 2016, p. 17.
. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 6, 2016, The Senate, 14 September 2016, p. 37.
Memorandum, Statute Update Bill 2016, op. cit., p. 2.
Statement of Compatibility with Human Rights can be found at page 3 of the
Explanatory Memorandum to the Bill.
Joint Committee on Human Rights, Thirty-seventh
Report of the 44th Parliament, 2 May 2016, p. 2.
Department (AGD), A
guide to framing Commonwealth offences, infringement notices and enforcement powers,
AGD, Canberra, September 2011, p. 42; Office of Parliamentary Counsel (OPC), OPC drafting manual,
edn. 3.1, February 2016, p. 35.
. Crimes Act 1914.
A guide to framing Commonwealth offences, infringement notices and enforcement
powers, op. cit., p. 42.
Memorandum, Statute Update Bill 2016, op. cit., p. 5.
A guide to framing Commonwealth offences, infringement notices and enforcement
powers, op. cit., p. 37.
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