Bills Digest no. 16, 2017–18
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Law and Bills Digest Section
Purpose of the Bill
Structure of the Bill
First Parliamentary Counsel’s
FPC changes or Statute Law Revision
Senate Standing Committee for
Selection of Bills
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
Position of major interest groups
Statement of Compatibility with Human
Parliamentary Joint Committee on
Key issues and provisions
Changes to section headings
Date introduced: 25
House: House of
1 to 3 commence the day after Royal Assent. Schedule 1, Part 1 and Schedules
2 to 4 commence 28 days after Royal Assent. Schedule 1, Part 2 commences
retrospectively on 1 July 2015—the commencement date of the Australian
Border Force Act 2015.
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 August 2017.
The purpose of the Statute Update (Winter 2017) Bill 2017
(the Bill) is to correct technical errors and make other minor amendments to
statutes, and to repeal spent and obsolete provisions and Acts. Many of the
amendments do not affect the substance of the laws but are intended to enhance
their clarity and accuracy. Some amendments make minor changes to the substance
of the law.
of the Bill
The Bill contains four schedules:
1 amends technical errors and makes other minor amendments to 18 principal Acts
2 makes amendments to six principal Acts consequential on the Acts and
Instruments (Framework Reform) Act 2015 (Cth)
3 repeals spent and obsolete provisions in five principal Acts and
4 repeals four spent amending Acts.
In his second reading speech for the Bill, Minister for
the Environment and Energy, Josh Frydenberg, noted:
The process of correcting the statute book and repealing
spent provisions and acts has been undertaken regularly since 1934.
These update bills are an essential tool in the process of
keeping an orderly, accurate and up-to-date Commonwealth statute book.
Statute law revision and statute update Bills are
typically aimed at correcting technical errors in Commonwealth laws and cutting
‘dead wood’ from the statute book. The main difference between statute law revision Bills and statute update Bills
appears to be that statute law revision Bills are intended to contain measures
that do not alter the substance of the law but rather make minor technical
corrections of a purely formal nature. In contrast, statute update Bills are intended to make minor changes to
the substance and legal effect of the relevant provisions subject to amendment.
Current Government policy indicates that the Office of
Parliamentary Counsel ‘will prepare a Statute Law Revision Bill when time
permits (usually once a year)’. Although no specific guidance is provided in relation to statute update Bills,
it might reasonably be assumed that a similar approach may be taken to their
In the previous Parliament, statute law revision Bills
were introduced as part of a regular ‘Repeal Day’ package, primarily aimed at
reducing regulatory red tape as part of the Government’s regulatory reform
agenda. However, since 2016 repeal days have been replaced with ‘Annual Red
Tape Reduction Reports’ which outline the Government’s progress in reducing
Parliamentary Counsel’s editorial powers
Some amendments that would previously have been made in
Statute Law Revision Bills can now be made unilaterally by the First
Parliamentary Counsel (FPC). Amendments to the Legislation Act
2003 (Cth) in 2015 conferred on the FPC the power to make editorial changes
to the text of Acts and instruments, where the changes do not have substantive
effect. Section 15V provides that when preparing a compilation of an Act,
legislative instrument or notifiable instrument for registration on the Federal
Register of Legislation, the FPC may make ‘editorial changes’ to any text that
is part of the Act or instrument. An editorial change is defined to include a
only to a matter of spelling, punctuation, grammar or syntax, or the use of
conjunctives and disjunctives
a reference to a law, or to a person, body or other entity, office, position
place, document or thing
or renumbers a legislative provision
the way of referring to or expressing a number, year, date, time, amount of
money or other amount, penalty, quantity, measurement or other matter, idea or
a provision, or reference to a law that has expired, or is spent or redundant
an error—this extends to typographical and clerical errors; grammatical and
spelling errors and errors of punctuation; errors in numbering, cross-referencing
and alphabetical ordering; errors in references to laws or instruments; errors
in or arising out of an amendment of an Act or instrument; and other errors of
a similar nature.
The FPC must not make a change that would alter the effect
of an Act or instrument, and its editorial powers are to be used sparingly. The FPC provides a running record of all editorial changes made using this
power, with a report finalised every six months and statistical data provided
in OPC’s annual reports. In evidence provided to an inquiry by the Senate Legal and Constitutional
Affairs Committee into the 2015 amendments, the Attorney‑General George
Brandis stated that the FPC’s power was intended to be exercised with ‘due
or Statute Law Revision Bill?
The Office of Parliamentary Counsel is responsible for
determining the best approach for making corrections to errors detected in
legislation. Drafting Direction No. 4.4—Changes using FPC’s editorial powers
and statute law revision amendments, sets out the process for making the
changes, with the FPC to decide whether, on recommendation from the designated
drafter, the change should be made:
an amendment in a Statute Law Revision Bill (or Statute Law Revision
an amendment in another kind of Bill or instrument or
FPC’s editorial power.
However, as noted in the digest for the Statute Law
Revision (Spring 2016) Bill 2016, the basis on which one of these approaches is
favoured over another can in some circumstances be unclear:
It is evident that statute law revision legislation and FPC’s
editorial change powers under the Legislation Act can cover the same
type of subject matter ... it is not entirely clear when one of these mechanisms
will be applied (or ought to be applied) in preference to the other.
The amendments contained in the current Bill are, to a
large extent, the types of ‘statute law revision’ changes which would fall
within the scope of the FPC’s editorial powers. The Explanatory Memorandum does
not provide guidance as to why a Bill containing statute law revision measures has
been preferred as the mechanism for making these changes. One possible
explanation is that the FPC may have determined to take a conservative approach
to the exercise of editorial powers, at least while they are relatively new, in
order to maintain a degree of Parliamentary involvement in the making of
statute law revision type amendments. Using the editorial power in a more
limited way than its full legislative extent may help to provide further assurance
to the Parliament and the public about the appropriate use of the editorial
power. It is also possible that there might be an intention to make a gradual
transition from the use of primary legislation towards the editorial power.
Standing Committee for Selection of Bills
The Selection of Bills Committee recommended that the Bill
not be referred to a Committee.
Standing Committee for the Scrutiny of Bills
In its Scrutiny Digest 6 of 2017, the Scrutiny of
Bills Committee stated that it had no comment on the Bill.
position of non-government parties/independents
Non-government parties and independents have not provided
comment about the Bill at the time of writing.
major interest groups
No interest groups have commented on the Bill at the time
The Explanatory Memorandum states 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.
Joint Committee on Human Rights
In its Report 5 of 2017, the Parliamentary Joint
Committee on Human Rights concluded that the Bill does not raise human rights
Part 1 of Schedule 1 makes minor technical amendments to seventeen
Acts. These amendments are aimed at improving the clarity of the legislation
and do not have substantive impact on the operation of the law. The changes
the heading of a section (or subsection) to better represent the contents of
the relevant provision
replacing or clarifying references to redundant or incorrect concepts,
and fixing incorrect or redundant cross-references
language in line with current drafting practice
a reference to the day on which a repealed Act received Royal Assent with the
actual date of Royal Assent and
Examples of the types of proposed amendments contained in
this Schedule are outlined below. All amendments in Part 1 of Schedule 1
commence 28 days after Royal Assent.
Subsection 25(1) of the Australian
Communications and Media Authority Act 2005 (Cth) provides that an
associate member of the Australian Communications and Media Authority holds
office for the period specified in his or her instrument of appointment, which
must not exceed five years. The current heading for the subsection is Default
period, but no default period is provided for in the event that an
instrument of appointment does not specify a period of appointment within the
statutory maximum. Item 3 repeals this heading and substitutes a new
heading: Period specified in instrument of appointment, to better
reflect the contents of the provision.
Items 7 and 10 remove references to the
non-existent Administrative Review Tribunal from the Compensation (Japanese
Internment) Act 2001 (Cth) and Dairy Produce Act
1986 (Cth) respectively. These references appear to have been included
in the relevant Acts alongside references to the Administrative Appeals
Tribunal (AAT), in anticipation of the proposed 2001 merger of merits review
tribunals. The merger of the AAT, Social Security Appeals Tribunal, Migration
Review Tribunal and Refugee Review Tribunal was to result in the creation of a
single review body, the Administrative Review Tribunal (ART). The merger did not take place at the time and the ART was never formed. Removing
references to the ART simply has the effect that the relevant provisions will
refer only to the still-existing AAT.
Items 22 to 26 fix incorrect citations in the Work Health and
Safety Act 2011 (Cth). Under this Act, corresponding WHS law is defined to include the WHS laws in each state and territory. However, a
number of the laws are incorrectly cited. The Explanatory Memorandum states
that this is because the Commonwealth Act was:
... drafted in anticipation of all States and Territories
implementing the model Work Health and Safety Act on 1 January 2012. Two
jurisdictions (Victoria and Western Australia) have not implemented the model,
and several others adopted a different title than was anticipated at the time.
The amendments replace incorrect citations of the WHS laws
of Victoria, Western Australia, South Australia, Tasmania and the Northern
Territory with the correct title for each Act.
Part 2 of Schedule 1 amends the Carriage of Goods
by Sea Act 1991 (Cth) to replace a reference to the ‘Chief Executive
Officer of Customs’ with ‘Comptroller-General of Customs’. This reflects changes made by the Customs and Other Legislation Amendment
(Australian Border Force) Act 2015 (Cth), which established the role of the
Comptroller-General of Customs as part of the establishment of the Australian
This Part commences retrospectively, on the date of commencement
of the Australian Border Force Act 2015 (Cth), being 1 July 2015.
Schedule 2 contains amendments consequential to the Acts and
Instruments (Framework Reform) Act 2015 (Cth) (Framework Reform Act).
The Framework Reform Act made substantial amendments to the (then) Legislative Instruments
Act 2003, which included changing its title to the Legislation Act
2003 (Cth). At the time the Framework Reform Act was passed, a separate Act made
consequential amendments to 201 Commonwealth statutes, primarily updating references
to provisions and to the new title of the Legislation Act.
Schedule 2 amends provisions in a small number of Acts
which were not captured by these 2015 amendments:
River Co. Limited Act 2015
Small Business and Family Enterprise Ombudsman Act 2015
(Consequential Amendments and Transitional Provisions) Act 2015
The changes update references to the Legislative
Instruments Act with the new title of the Act. They also replace references to provisions under the Legislative Instruments
Act with the corresponding provision under the Legislation Act. These amendments do not affect the substance of the legislation—as noted in the
Part 6 of [the Framework Reform Act] and section 10 of
the Acts Interpretation Act 1901 have operated to ensure that various
textual references to the Legislative Instruments Act 2003 and
provisions within that Act that still remain on the Statute Book are to be read
consistently with amendments by the [Framework Reform Act].
The changes in Schedule 2 commence 28 days after Royal
Schedule 3 repeals spent and redundant provisions in five
Private Sale Act 2006
Health Australia (Plant Industries) Funding Act 2002
of Human Cloning for Reproduction Act 2002
Advertising Prohibition Act 1992.
The changes do not have substantive effect as each of the
provisions repealed by Schedule 3 have either ceased to be in force or are
redundant. The changes in Schedule 3 commence 28 days after Royal Assent.
An example is in relation to the Tobacco Advertising
Prohibition Act 1992 (Cth), which makes it an offence to publish or
broadcast a tobacco advertisement, unless an exception applies under the Act. Section 18 previously allowed the Minister for Health to exempt a sporting or
cultural event from the tobacco advertising ban, where the event was of
international significance and was to be completed before 1 October 2006. Since
1 October 2006, exemptions cannot be granted for such events, and
section 18 no longer has any effect. Item 12 repeals this redundant
provision. Items 8 to 11 and 14 to 18 make consequential amendments by
removing references to section 18 occurring throughout the Act.
Schedule 4 repeals four spent Acts:
Land Rights (Northern Territory) Amendment (Township Leasing) Act 2007 (Cth)
Amendment Act 2003 (Cth)
Industry Act 1961 (Cth)
Industry (Temporary Provisions) Act 1968.
Each of these Acts is an amending Act. The amendments
contained in each Act have been made, and there are no application, saving,
transitional or other provisions with ongoing effect. The changes in Schedule 4 commence 28 days after Royal Assent.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
reading speech: Statute Update (Winter 2017) Bill 2017’, House of
Representatives, Debates, 25 May 2017, p. 5135.
C Raymond, Statute
Law Revision (Spring 2016) Bill 2016, Bills digest, 8, 2016–17,
Parliamentary Library, Canberra, 2016; J Tomaras, Statute
Update Bill 2016, Bills digest, 11, 2016–17, Parliamentary Library,
Canberra, 2016; C Petrie, Statute
Law Revision Bill (No. 2) 2016, Bills digest, 105, 2015–16,
Parliamentary Library, Canberra, 2016; M Coombs, Statute
Law Revision Bill (No. 3) 2015, Bills digest, 58, 2015–16,
Parliamentary Library, Canberra, 2015.
is for this reason that Commonwealth First Parliamentary Counsel can provide
policy authority for statute law revision Bills. See: Department of the
Prime Minister and Cabinet (DPMC), Legislation
handbook, DPMC, Canberra, February 2017, pp. 14, 19 and 22; and 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,
Memorandum, Statute Update (Winter 2017) Bill 2017, p. 2, which notes that
‘[b]ecause some amendments may make minor changes, the amendments were not
considered appropriate for inclusion in a Statute Law Revision Bill’. See
further: Explanatory Memorandum,
Statute Update Bill 2016, p. 2. A search of the Federal Register of Legislation at June 2017 indicates that only two Bills of this short title have been
Update Bill 2016 (Act No 61 of 2016)
and the Statute
Update (A.C.T. Self-Government (Consequential Provisions) Regulations) Bill
2016 (Act No
13 of 2017).
. DPMC, Legislation handbook, op. cit., p. 22.
. Cutting Red Tape website. A
report has not yet been tabled for the 2016–17 financial year. The 2015–16
annual report identifies statute law revision Bills among the red-tape
reduction measures implemented by the Attorney-General’s portfolio: Australian Government, Annual red tape
reduction report 2015, DPMC, Canberra, March 2016, Appendix B.2, pp. 1,
3 and 6.
. Legislation Act
2003 (Cth), section 15X.
subsection 15V(6); OPC, Drafting
direction no. 4.4: changes using FPC’s editorial powers and statute law
revision amendments, op. cit., p. 3.
reports are published on the Federal Register of Legislation (FRL), ‘List of
editorial changes made’, FRL website.
Standing Committee on Legal and Constitutional Affairs, Acts
and Instruments (Framework Reform) Bill 2014 [Provisions], Report,
The Senate, Canberra, December 2014, p. 17.
. OPC, Drafting
direction no. 4.4: changes using FPC’s editorial powers and statute law
revision amendments, op. cit., p. 5.
. Raymond, Statute
Law Revision (Spring 2016) Bill 2016, Bills digest, op. cit., p. 6.
Standing Committee for Selection of Bills, Report,
6, 2017, The Senate, Canberra, 15 June 2017, p. 4.
Standing Committee for the Scrutiny of Bills, Scrutiny
digest, 6, 2017, The Senate, Canberra, 14 June 2017, p. 62.
Memorandum, Statute Update (Winter 2017) Bill 2017, 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, Scrutiny
report, 5, 2017, Canberra, 14 June 2017, p. 49.
1, items 1, 2 and 11.
1, items 3, 5 and 14.
1, item 7, 10, 15, 16.
1, items 4, 8, 9, 12, 13, 20, 22–26.
1, item 6.
1, items 18, 21.
1, item 17.
2(1), table item 2.
of Australia, ‘Administrative
Review Tribunal Bill 2000 homepage’, Australian Parliament website.
Memorandum, Statute Update (Winter 2017) Bill 2017, op. cit., p. 9.
1, item 27 amends paragraph 4(a) of Article 1 of Schedule 1A of the Carriage of Goods
by Sea Act 1991 (Cth), which provides that for the purposes of the
Amended Hague Rules, the limits of a port or wharf in Australia are the limits
of the area within the limits fixed by the Chief Executive Officer of Customs
under the Customs Act 1901.
and Other Legislation Amendment (Australian Border Force) Act 2015 (Cth); C Barker, Australian
Border Force Bill 2015 [and] Customs and Other Legislation Amendment
(Australian Border Force) Bill 2015, Bills digest, 94, 2014–15,
Parliamentary Library, Canberra, 2015.
2(1), table item 3.
and Instruments (Framework Reform) Bill 2014, Bills digest, 70,
2014–15, Parliamentary Library, Canberra, 2015.
. Acts and
Instruments (Framework Reform) (Consequential Provisions) Act 2015 (Cth).
2, items 1, 3, 4, 5, 6, 8, 9, 11, 12.
2, items 2, 7, 10, 13.
Memorandum, Statute Update (Winter 2017) Bill 2017, op. cit., p. 11.
2(1), table item 4.
2(1), table item 4.
of Health (DoH), ‘Tobacco
advertising’, DoH, Canberra, 23 June 2017.
Memorandum, Statute Update (Winter 2017) Bill 2017, op. cit., p. 13.
2(1), table item 4.
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