Bills Digest No. 103,
2017–18
PDF version [253KB]
Statute Update (Autumn 2018) Bill 2018
Laura Sweeney
Law and Bills Digest Section
8
May 2018
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Key issues and provisions
Schedule
2
Schedule
3
Schedule
4
Schedule
5
Schedule
6
Date introduced: 28 March 2018
House: House of Representatives
Portfolio: Attorney-General
Commencement: Sections 1–3 on the day after Royal Assent; Items 1–6 of Schedule 1 and Schedules 2–6 commence 28 days after Royal Assent; Items 7 and 8 of Schedule 1 commence retrospectively on 1 July 2017.
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 Federal Register of Legislation website.
All hyperlinks in this Bills Digest are correct as at May 2017.
Purpose of
the Bill
The purpose of the Statute Update (Autumn 2018) Bill 2018
(the Bill) is to correct technical errors and make other minor amendments to
statutes, as well as to repeal spent and obsolete provisions and Acts, in order
to improve the quality and accuracy of Commonwealth legislation.[1]
Structure
of the Bill
This is an omnibus Bill. It contains six schedules which
propose amendments to 74 Acts:
- Schedule
1 makes minor and technical changes to amend errors in five principal Acts
- Schedule
2 amends four Acts to replace references to ‘the Institute of Chartered
Accountants in Australia’ with references to ‘Chartered Accountants Australia
and New Zealand’
- Schedule
3 makes consequential amendments to the Food Standards
Australia New Zealand Act 1991 (Food Standards Act) following the enactment of the Acts and
Instruments (Framework Reform) Act 2015 (Framework Reform Act)
- Schedule
4 repeals obsolete references to the Crown in right of Norfolk Island in 22
principal Acts
- Schedule
5 repeals spent provisions in two principal Acts and
- Schedule
6 repeals 40 obsolete amending Acts.
Background
The Bill was introduced into the House of Representatives on
28 March 2018 by the Minister for Social Services, Dan Tehan.[2]
In his second reading speech, the Minister explained:
Statute Law Revision Acts and Statute Stocktake Acts have
been passed on a regular basis since 1934 as a means of removing obsolete and
spent provisions from the statute book and correcting mistakes in drafts. They
are traditionally non-controversial and regarded as an essential means of
keeping the Commonwealth statute book accurate and up to date.[3]
The Bill is one of five statute update Bills that have been
introduced into the Australian Parliament over time:
- Statute
Update (Autumn 2018) Bill[4]
- Statute
Update (Smaller Government) Bill 2017[5]
- Statute
Update (Winter 2017) Bill 2017[6]
- Statute
Update (ACT Self-Government (Consequential Provisions) Regulations) Bill 2016[7]
- Statute
Update Bill 2016[8]
Difference
between statute update Bills and statute law revision Bills
The Legislation
Handbook published by the Department of Prime Minister and Cabinet describes
statute law revision Bills as Bills which make:
... technical amendments to a number of Commonwealth Acts. The
amendments included in such a bill deal only with tidying up, correction of
errors, updating (including modernisation of style) and repeal of spent
provisions.[9]
In addition to statute law revisions Bills, amendments to
the Legislation
Act 2003 in 2015 empowered the First Parliamentary Counsel (FPC) to
make editorial changes to the texts of Acts and instruments, where
the changes do not change the effect of the Acts or instruments.[10]
Section 15X of the Legislation Act defines an editorial
change to include a change which:
- goes
only to a matter of spelling, punctuation, grammar or syntax, or the use of
conjunctives and disjunctives
- updates
a reference to a law, or to a person, body or other entity, office, position
place, document or thing
- numbers
or renumbers a legislative provision
- changes
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
concept
- omits
a provision, or reference to a law that has expired, or is spent or redundant
- corrects
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.[11]
In light of these amendments, the Legislation Handbook
explains that ‘[s]ome changes that previously would have been made in statute law
revision Bills can now be made by the First Parliamentary Counsel using
editorial powers under the Legislation Act 2003’.[12]
These powers are, however, used sparingly.[13]
Statute update Bills may be distinguished from statute law
revision Bills on the basis that they contain amendments which make minor
changes to the substance and legal effect of the provisions subject to amendment.[14]
Items 7 and 8 of Schedule 1 of this Bill, discussed below, are an
example of such amendments.[15]
By contrast, statute law revision Bills only make ‘purely formal’ changes, such
as correcting errors, repealing spent provisions and modernising the style of
the Act.[16]
Explanatory memoranda for previous statute update Bills have emphasised this
distinction. For example, the Explanatory Memorandum for the Statute Update
(Winter 2017) Bill 2017 explained that ‘[b]ecause some amendments may make
minor changes, the amendments were not considered appropriate for inclusion in
a statute law revision Bill’.[17]
The amendments in this Bill are consistent with those that
are required to be made by a statute update Bill.
Committee
consideration
Senate
Standing Committee for Selection of Bills
On 28 March 2018 the Standing Committee for Selection of
Bills deferred consideration of the Statute Update (Autumn 2018) Bill 2018
until its next meeting.[18]
Senate
Standing Committee for the Scrutiny of Bills
At the time of writing this Bills Digest the Scrutiny of
Bills Committee had not considered the Bill.
Policy
position of non-government parties/independents
At the time of writing this Bills Digest no non-government
parties and independents had provided comment about the Bill.
Position of
major interest groups
At the time of writing this Bills Digest no major interest
groups had commented on the Bill.
Financial
implications
The Explanatory Memorandum states that the Bill will have
no financial impact.[19]
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.[20]
Parliamentary
Joint Committee on Human Rights
At the time of writing this Bills Digest the Parliamentary Joint
Committee on Human Rights had not considered the Bill.
Key issues and provisions
Schedule 1
Schedule 1 makes minor and technical changes to amend
eight errors in five principal Acts. The amendments seek to rectify the
following types of errors:
- typographical
errors[21]
- references
to incorrect concepts[22]
- references
to repealed Acts[23]
- cross-referencing
errors[24]
and
- incorrect
formula[25]
Typographical
errors
Item 1 of Schedule 1 to the Bill replaces a
full stop with a semi-colon at the end of paragraph 104.29(2)(i) of the Criminal Code Act
1995 (Criminal Code). This item commences 28 days after Royal
Assent.[26]
References
to incorrect concepts
Item 2 substitutes the reference to an authorised
employee of an Education Service for Overseas Students (ESOS) in
subsection 149(1) of the Education Services
for Overseas Students Act 2000 (ESOS Act) with a
reference to an authorised officer. Section 6A of the ESOS
Act sets out who is an authorised officer of an ESOS agency
for a registered provider.[27]
By contrast, there are no other references to an authorised employee
in the ESOS Act. Consequently, this amendment substitutes the incorrect concept
of authorised employee with the correct one of authorised
officer.
References
to repealed Acts
Item 3 amends the definition of trade union
in subsection 3(1) of the Equal Opportunity
in Employment Act 1987. That Act currently defines the term trade
union to include ‘an organisation of employees registered pursuant to
the Conciliation
and Arbitration Act 1904.[28]
As the Explanatory
Memorandum to the Bill notes, the Conciliation and Arbitration Act was
repealed in 1988 by the Industrial
Relations (Consequential Provisions) Act 1988. Section 5 of the Industrial
Relations (Consequential Provisions) Act provided that organisations
registered under the Conciliation and Arbitration Act were taken to be
registered under the Industrial Relations Act 1988,[29]
which has since been renamed as the Fair Work
(Registered Organisations) Act 2009. To reflect these changes, item
3 replaces the reference to the Conciliation and Arbitration Act in
the definition of trade union in the Equal Opportunity in
Employment Act with a reference to the Fair Work (Registered
Organisations) Act.[30]
This item commences 28 days after Royal Assent.[31]
Cross-referencing
errors
Items 4, 5 and 6 of Schedule 1 to the Bill
substitute incorrect references to Chapter 3 of the Criminal Code in the
notes to subsections 24(2), 24(3) and 154(2) of the Renewable Energy
(Electricity) Act 2000 with the correct cross-references to Part 1A of
the Crimes Act
1914.[32]
These items commence 28 days after Royal Assent.[33]
Incorrect
formula
Items 7 and 8 of Schedule 1 amend the
formula used to annually index the lifetime limit and yearly
rate for trade support loans under section 99 of the Trade Support Loans
Act 2014.[34]
The Trade Support Loans Act establishes the Trade Support Loans (TSL)
program.[35]
The program provides for concessional and income contingent loans to certain
apprentices, with a lifetime limit of $20,000, indexed from 2017.[36]
Subsection 24(1) of the Trade Support Loans Act sets
out the yearly rate of the trade support loan for apprentices.[37]
The amount varies depending on the apprenticeship year being undertaken. For
example, a person’s yearly rate will be $8,000 if they are
undertaking the first year of their apprenticeship,[38]
and $6,000 if they are undertaking the second year of their apprenticeship.[39]
The note to subsection 24(1) states that ‘the yearly rates are indexed on
1 July 2017 and each later 1 July in line with increases in the
consumer price index (see section 99)’.[40]
Subsection 99(1) of the Trade Support Loans Act
provides that both the lifetime limit and yearly rate
‘is to be indexed on 1 July 2017 and each later 1 July’.[41]
Subsection 99(3) sets out the method for determining the indexed
amount.[42]
Subsection 99(4) sets out the formula for determining the annual
indexation factor, which is multiplied by the amount to be indexed to
determine the indexed amount.[43]
Subsection 99(5) provides further guidance about the denominator used in
the formula in subsection (4).[44]
The Explanatory
Memorandum to the Bill explains that the drafting of the formula in
subsection 99(4) almost always produces an annual indexation factor of 1,
‘resulting in no indexation’.[45]
Item 7 of Schedule 1 changes the formula in
subsection 99(4).[46]
Item 8 amends the description of the denominator in the revised formula.[47]
The amendments will provide for the correct indexation of both the lifetime
limit and yearly rate.
Items 7 and 8 of Schedule 1 commence
retrospectively on 1 July 2017.[48]
The Explanatory
Memorandum notes that the amendments are beneficial, and the slip rule
would have applied to correct the error since 1 July 2017.[49]
The retrospective commencement is designed to ensure that the correct formula
is in force when the amounts have to be indexed for the first time under
section 99 of the Act.[50]
Schedule 2
Schedule 2 amends four Acts to replace references
to ‘the Institute of Chartered Accountants Australia’ with references to ‘Chartered
Accountants Australia and New Zealand’:
Chartered Accountants Australia and New Zealand (CAANZ),
was formally established by the grant of a new Royal Charter on 26 November
2014, following the merger of the Institute of Chartered Accountants Australia
(ICCAA) and New Zealand Institute of Chartered Accountants (NZICA).[51]
The amendments in Schedule 2 ensure that the four Acts listed above
refer to the current, merged organisation, rather than ICAA, which no longer
exists.[52]
Schedule 3
Schedule 3 amends the Food Standards Act to
reflect amendments made by the Framework Reform Act. The Framework
Reform Act made several substantive changes to the Legislative
Instruments Act 2003 and renamed that Act as the Legislation Act
2003. In 2015, the Acts and
Instruments (Framework Reform) (Consequential Provisions) Act 2015 amended
201 Commonwealth Acts to reflect these changes to the Legislation Act. However,
the Food Standards Act was not captured by these amendments. Schedule 3 seeks to rectify this, by
amending references to the Legislative Instruments Act in the Food
Standards Act to the Legislation Act,[53]
and inserting additional guidance into the Food Standards Act about the
application of sunsetting and disallowance provisions in the Legislation Act.[54]
Most of the items in Schedule 3 of the Bill repeal
provisions in the Food Standards Act that refer to the former
disallowance and sunsetting provisions in the Legislative Instruments Act
and replace them with notes referring to the equivalent provisions in the Legislation
Act.[55]
For example, subsections 6(4), 23(4), 82(2) and 106(6) of the Food Standards
Act currently refer explicitly to section 42 and Part 6 in the former Legislative
Instruments Act. Items 1–6 and items 11 and 12 of Schedule
3 repeal these subsections and replace them with notes confirming that
section 42 and Part 4 of Chapter 3 of the Legislation Act do not
apply to the instrument of revocation or amendment.[56]
Items 8, 9 and 10 in Schedule 3
substitute provisions referring to the Legislative Instruments Act in
section 94 and subsections 82(8) and 97(6) of the Food Standards Act
with alternative provisions accompanied by notes which confirm that
section 42 and Part 4 of Chapter 3 of the Legislation Act do not
apply to the instrument of revocation or amendment.[57]
Schedule 3 commences 28 days after Royal Assent.[58]
Schedule 4
Schedule 4 repeals obsolete references to the Crown
in right of Norfolk Island in 22 principal Acts. As the Minister for Social
Services explained in his Second Reading Speech,[59]
these amendments reflect the abolition of Norfolk Island as a body politic on 1
July 2016 by amendments to the Norfolk Island Act
1979 passed by the Australian Parliament in May 2015.
Schedule 5
Schedule 5 of the Bill repeals spent provisions in
the Social
Security Legislation Amendment (One-off Payments for Carers) Act 2005 (One-off
Payments for Carers Act) and Telstra Corporation
Act 1991 (Telstra Act). Item 1 of Schedule 5 repeals
Schedule 1 in the One-off Payment for Carers Act. Schedule 1 consists of
two parts. Part 1 inserted new parts 2.5B, 2.5C and 2.19B into Chapter 2 of the
Social Security
Act 1991. These parts provide for the payment of one-off bonuses of $1,000
to carers who received an instalment of their carer service payment, carer
service pension or carer allowance in a period including 10 May 2010.[60]
Part 2 of Schedule 1 to the One-off Payments for Carers Act amended
various provisions in the Income Tax
Assessment Act 1936 and Income Tax
Assessment Act 1997, to ensure the bonus payments were not
subject to income tax.[61] The Schedule commenced on Royal Assent,[62]
being 25 May 2005.[63]
As these amendments have taken effect, the Schedule is now obsolete.
Item 2 of Schedule 5 repeals subsections
36(2), (2A) and (6) of the Telstra Act. Section 36 of the Telstra
Act provides for the resignation of the Auditor-General as auditor of
Telstra and the appointment of a replacement auditor.[64]
Subsection 36(2) provides for the repeal of subsections 36(3), (3A) and
(4).[65]
These subsections were repealed in November 2006.[66]
As the Explanatory
Memorandum to this Bill notes, subsections 36(2A) and (6) only operated
prior to the repeal of subsections 36(3), (3A) and (4).[67]
The repeal of these subsections rendered subsections 36(2A) and (6) inoperable.
Item 2 of Schedule 5 thus clarifies the operation of
section 36 of the Telstra Act by removing these obsolete
provisions.[68]
Schedule 5 commences 28 days after Royal Assent.[69]
Schedule 6
Schedule 6 repeals 40 obsolete Acts. Each of the 40
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.[70]
The changes in Schedule 6 commence 28 days after Royal Assent.[71]
[1]. D
Tehan (Minister for Social Services), ‘Second
reading speech: Statute Update (Autumn 2018) Bill 2018’, House of
Representatives, Debates, 28 March 2018, p. 3021.
[2]. Parliament
of Australia, ‘Statute
Update (Autumn 2018) Bill 2018 homepage’, Australian Parliament website.
[3]. Tehan
(Minister for Social Services), ‘Second
reading speech: Statute Update (Autumn 2018) Bill 2018’, op. cit., p. 3021.
[4]. Parliament
of Australia, ‘Statute
Update (Autumn 2018) Bill 2018 homepage’, op. cit.
[5]. Parliament
of Australia, ‘Statute
Update (Smaller Government) Bill 2017 homepage’, Australian Parliament
website.
[6]. Parliament
of Australia, ‘Statute
Update (Winter 2017) Bill 2017 homepage’, Australian Parliament website.
[7]. Parliament
of Australia, ‘Statute
Update (ACT Self-Government (Consequential Provisions) Regulations) Bill 2016
homepage’, Australian Parliament website.
[8]. Parliament
of Australia, ‘Statute
Update Bill 2016 homepage’,
Australian Parliament website.
[9]. Department
of Prime Minister and Cabinet (PM&C), Legislation
Handbook, PM&C, Canberra, February 2017, p. 22.
[10]. Legislation Act 2003
(Cth), section 2(aa), as amended by the Acts and Instruments
(Framework Reform) Act 2015 (Cth).
[11]. Ibid.,
section 15X.
[12]. PM&C,
Legislation
Handbook, op. cit.
[13]. For
a detailed overview of the FPC’s editorial powers see C Petrie, Statute
Update (Winter 2017) Bill 2017, Bills digest, 16, 2017–18,
Parliamentary Library, Canberra, 2017.
[14]. Ibid.,
p. 2.
[15]. Schedule
1, items 7-8.
[16]. PM&C,
Legislation
Handbook, op. cit.
[17]. Explanatory
Memorandum, Statute Update (Winter 2017) Bill 2017, p. 2; See also Explanatory
Memorandum, Statute Update Bill 2016, p. 1.
[18]. Senate
Standing Committee for Selection of Bills, Report, 4,
2018, The Senate, Canberra, 28 March 2018, p. 4.
[19]. Explanatory
Memorandum, Statute Update (Autumn 2018) Bill 2018, p. 2.
[20]. The
Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory
Memorandum to the Bill.
[21]. Schedule
1, item 1.
[22]. Schedule
1, item 2.
[23]. Schedule
1, items 3.
[24]. Schedule
1, items 4-6.
[25]. Schedule
1, items 7-8.
[26]. Subclause
2(1), table item 2.
[27]. Education Services
for Overseas Students Act 2000 (Cth), section 6A.
[28]. Equal Opportunity
in Employment Act 1987 (Cth), subsection 3(1).
[29]. Industrial Relations
(Consequential Provisions) Act 1988 (Cth), section 5.
[30]. Schedule
1, item 3.
[31]. Subclause
2(1), table item 2.
[32]. Schedule
1, items 4-6.
[33]. Subclause
2(1), table item 2.
[34]. Schedule
1, items 7-8.
[35]. Explanatory
Memorandum, Trade Support Loans Bill 2014, p. 2.
[36]. Ibid.
Section 5 of the Trade Support Loans Act sets the lifetime
limit at $20,000.
[37]. Ibid.,
subsection 24(1).
[38]. Ibid.,
paragraph 24(1)(a).
[39]. Ibid.,
paragraph 24(1)(b).
[40]. Ibid.,
subsection 24(1).
[41]. Ibid.,
subsection 99(1).
[42]. Ibid.,
subsection 99(3).
[43]. Ibid.,
subsection 99(4).
[44]. Ibid.,
subsection 99(5).
[45]. Explanatory
Memorandum, Statute Update (Winter 2017) Bill 2017, pp. 7–8.
[46]. Schedule
1, item 7.
[47]. Schedule
1, item 8.
[48]. Subclause
2(1), table item 3.
[49]. Explanatory
Memorandum, Statute Update (Autumn 2018) Bill 2018, p. 4.
[50]. Ibid.
[51]. Chartered
Accountants Australia and New Zealand, ‘Our
royal charter’, Chartered Accountants of Australia and New Zealand website,
accessed 4 May 2018.
[52]. Ibid.
[53]. Schedule
3, item 7.
[54]. Schedule
3, items 1 to 6, 8 to 12.
[55]. Schedule
3, items 1 to 6, 11 and 12.
[56]. Schedule
3, items 1 to 6, 11 and 12.
[57]. Schedule
3, items 8, 9 and 10.
[58]. Subclause
2(1), table item 4.
[59]. Tehan,
‘Second
reading speech: Statute Update (Autumn 2018) Bill’, op. cit., p. 3021.
[60]. Social Security Act
1991 (Cth), chapter 2, parts 2.5B, 2.5C and 2.19B.
[61]. Social Security
Legislation Amendment (One-off Payments for Carers) Act 2005 (Cth),
schedule 1, part 2.
[62]. Ibid.,
section 2.
[63]. Parliament
of Australia, ‘Social
Security Legislation Amendment (One-off Payments for Carers) Bill 2005 homepage’,
Australian Parliament website.
[64]. Telstra Corporation
Act 1991 (Cth), section 36.
[65]. Ibid.,
subsection 36(2).
[66]. Explanatory
Memorandum, Statute Update (Autumn 2018) Bill 2018, p. 12.
[67]. Ibid.
[68]. Schedule
5, item 2.
[69]. Subclause
2(1), table item 4.
[70]. Explanatory
Memorandum, Statute Update (Autumn 2018) Bill 2018, pp. 13–22.
[71]. Subclause
2(1), table item 4.
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