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Acts and Instruments (Framework Reform) (Consequential Provisions) Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 10, 2015-16 17 AUGUST 2015

Acts and Instruments (Framework Reform) (Consequential Provisions) Bill 2015 Moira Coombs Law and Bills Digest Section

Contents

Purpose of the Bill ............................................................... 2

Background ......................................................................... 2

Committee consideration .................................................... 3

Senate Standing Committee for the Selection of Bills ............. 3

Senate Standing Committee for the Scrutiny of Bills .............. 3

Policy position of non-government parties/independents ..... 3

Financial implications .......................................................... 3

Statement of Compatibility with Human Rights .................... 3

Key issues and provisions..................................................... 3

Schedule 1—Consequential amendments ............................. 4

Part 1—Main amendments ..................................................... 4

Part 2—Contingent amendments ............................................ 4

Schedule 2—Amendments relating to court rules ................. 4

Part 1—Amendments commencing on Proclamation ............. 4

Part 2—Amendment of the Legislative Instruments Act 2003 ......................................................................................... 5

Part 3—Amendment of the Legislation Act 2003 .................... 5

Schedule 3—Amendments relating to forms and technical matters ................................................................ 5

Part 1—Amendments .............................................................. 5

Part 2—Application of amendments applying to forms .......... 6

Date introduced: 25 June 2015

House: House of Representatives

Portfolio: Attorney-General

Commencement: Sections 1 to 3 commence on the day of Royal Assent. The three Schedules and their Parts commence at various times and in some cases are dependent on the commencement of the Acts and Instruments (Framework Reform) Act 2015 and the Intellectual Property Laws Amendment 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 Parliament website.

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

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Purpose of the Bill The purpose of the Acts and Instruments (Framework Reform) (Consequential Provisions) Bill 2015 (the Bill) is to:

• amend 201 Commonwealth statutes that are affected by the passing of the Acts and Instruments (Framework Reform) Act 20151 (Reform Act) and to update current references to the Legislative Instruments Act 2003, which will be renamed the Legislation Act 2003 by the Reform Act

• update references from particular provisions in the Legislative Instruments Act 2003 to the corresponding provisions in the Legislation Act 2003 and

• amend provisions relating to the status of court rules.

Background The Reform Act received Royal Assent on 5 March 2015. The Act will commence on 5 March 2016, or earlier by proclamation. The Reform Act ‘consolidates the frameworks for the publication of Commonwealth Acts and the registration of legislative and other instruments by repealing the Acts Publication Act 1905 and incorporating the requirements for publishing Commonwealth Acts into the Legislative Instruments Act’.2 As a result, when the Reform Act commences the Legislative Instruments Act 2003 will be significantly amended and renamed the Legislation Act 2003. Commonwealth Acts and instruments will be part of a single repository, the Federal Register of Legislation. The Register ‘will provide for the alignment of processes for registration, compilations, editorial changes and authorised versions of both Acts and instruments, producing administrative efficiencies across government’.3

The Reform Act introduced a new category of instruments called notifiable instruments, which will require registration. They are not legislative instruments and therefore not subject to parliamentary scrutiny and sunsetting.

The new category of notifiable instruments is designed to cover instruments that are not appropriate to register as legislative instruments, but for which public accessibility and centralised management is desirable. Instruments may become notifiable instruments by being registered, by being prescribed by regulation under the Legislation Act, or by being declared as notifiable instruments in the enabling legislation. Registration will satisfy any existing publication requirements for the instrument (for example, gazettal).

4

The Reform Act implements a number of recommendations made in the 2008 review of the Legislative Instruments Act 2003.5 The Explanatory Memorandum to the Reform Bill stated:

Following the review and in response to the recommendations, a number of measures have been taken. This includes work to manage the sunsetting of legislative instruments across the Commonwealth, including through the introduction of a regulation-making power to enable the repeal of spent instruments. Technical enhancements have been made to the Register to ensure a high level of performance and useability, and to support the sunsetting of instruments. The Office of Parliamentary Counsel has updated the Legislative Instruments Handbook to provide more detailed guidance to help Commonwealth rule-makers and agencies to manage their legislative instruments efficiently, effectively and in accordance with the law.

As a result of other recommendations of the committee and the passage of time, the scheme now requires reform to enhance the accessibility of Commonwealth instruments and to improve the efficiency and operability of the scheme. 6

The intention of the Acts and Instruments (Framework Reform) Bill 2014 was to:

1. Acts and Instruments (Framework Reform) Act 2015, accessed 4 August 2015. 2. Explanatory Memorandum, Acts and Instruments (Framework Reform) Bill 2014, p. 3, accessed 4 August 2015. 3. Ibid., p. 5.

4. Ibid., p. 3.

5. Legislative Instruments Act Review Committee, 2008 review of the Legislative Instruments Act 2003, [Attorney-General’s Department], Canberra, March 2009, accessed 4 August 2015. 6. Explanatory Memorandum, Acts and Instruments (Framework Reform) Bill 2014, op. cit., p. 2.

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…implement a number of the outstanding recommendations of the 2008 Review of the Legislative Instruments Act 2003. The Bill makes a number of other amendments to improve the operation and clarity of legislative frameworks for Commonwealth Acts and instruments and contribute to the Government’s deregulation agenda by creating administrative efficiencies across government and enhancing the public accessibility of Commonwealth laws.

7

The Bills Digest on the Acts and Instruments (Framework Reform) Bill 2014 discusses the implementation of the major recommendations of the 2008 review.8

The current Bill makes the necessary ‘consequential amendments such as updating references to the Legislative Instruments Act 2003, and provisions which deal with the application of the Act, to reflect the amendments made’ by the Reform Act.9

Committee consideration Senate Standing Committee for the Selection of Bills On 13 August 2015, the Senate Selection of Bill Committee decided that the Bill did not require inquiry and report by Committee.10

Senate Standing Committee for the Scrutiny of Bills The Committee had no comment on the Bill.11

Policy position of non-government parties/independents The Acts and Instruments (Framework Reform) Bill 2014 was supported by Labor and the Greens during its passage through Parliament. During the debate on that Bill, the Shadow Attorney-General Mark Dreyfus noted:

It is important that delegated legislation and other Commonwealth instruments are dealt with as clearly and as transparently as possible. We support any measure which makes Commonwealth instruments easier to locate and easier to understand. 12

Financial implications The Explanatory Memorandum notes that the Bill will have a nil or insignificant financial impact on government departments and agencies.13

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.14

The Parliamentary Joint Committee on Human Rights considers that the Bill does not raise human rights concerns.15

Key issues and provisions Generally, the nature of the changes made by the Bill are minor.

7. Ibid.

8. D Spooner, Acts and Instruments (Framework Reform) Bill 2014, Bills digest, 70, 2014-15, Parliamentary Library, Canberra, 2015, accessed 4 August 2015. 9. M Keenan, ‘Second reading speech: Acts and Instruments (Framework Reform) (Consequential Provisions) Bill 2015’, House of Representatives, Debates, 25 June 2015, p. 7583, accessed 25 July 2015. 10. Senate Standing Committee for the Selection of Bills, Report, 9, 2015, The Senate, 13 August 2015, accessed 14 August 2015. 11. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 7, 2015, The Senate, 12 August 2015, p. 2, accessed 14 August 2015. 12. M Dreyfus, ‘Second reading speech: Acts and Instruments (Framework Reform) Bill 2014’, House of Representatives, Debates, 2 December

2014, p. 13892, accessed 4 August 2015. 13. Explanatory Memorandum, Acts and Instruments (Framework Reform) (Consequential Provisions) Bill 2015, p. 3, accessed 6 August 2015. 14. The Statement of Compatibility with Human Rights can be found at pages 4-5 of the Explanatory Memorandum to the Bill. 15. Parliamentary Joint Committee on Human Rights, Twenty-fifth report of the 44th Parliament, 11 August 2015, p. 1, accessed 14 August 2015.

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Schedule 1—Consequential amendments Part 1—Main amendments Part 1 of Schedule 1 will commence on the later of the day the Bill receives Royal Assent and the commencement of Schedule 1 to the Reform Act.

Schedule 1 Part 1 amends 197 Acts to make the necessary changes required as a consequence of the passing of the Reform Act. The Bill makes the following type of amendments:

• updates references to the Legislative Instruments Act 2003 to refer to the Legislation Act 2003

• updates references to specific provisions in the Legislative Instruments Act 2003 to the new corresponding provisions in the Legislation Act 2003

• updates provisions that relate to legislative instruments that currently have retrospective operation and amends the provisions to refer to section 12 in the Legislation Act 2003

• updates references to the Federal Register of Legislative Instruments to refer to the Federal Register of Legislation

• removes references to certain sunsetting and disallowance exemptions for legislative instruments. Some of these exemption provisions will be retained in the Legislation Act 2003, while other exemptions which are currently provided in tables in sections of the Legislative Instruments Act 2003 will be consolidated in the updated Legislative Instruments Regulation 2004. Reference numbers are updated to accord with the Legislation Act 2003. The legal effect of the provisions remains unchanged16 and

• repeals several spent provisions and makes other minor technical corrections.

Part 2—Contingent amendments Contingent amendments are made to four Acts replacing the reference to the Legislative Instruments Act 2003 with a reference to the Legislation Act 2003. These amendments are ‘contingent’ as item 3 of the commencement table in clause 2 of the Bill provides that the amendments will not commence if Schedule 4 to the Intellectual Property Laws Amendment Act 2015 does not commence.17 This is because the provisions to be amended by Part 2 of Schedule 1 to the Bill are inserted by Schedule 4 of the Intellectual Property Laws Amendment Act 2015. Accordingly, the amendments cannot occur unless Schedule 4 commences.

Schedule 2—Amendments relating to court rules Part 1—Amendments commencing on Proclamation Items 1 and 2 make minor amendments to section 123 of the Family Law Act 1975 (FLA).18

Subsection 123(1) of the FLA allows the Family Court judges, or a majority of them, to make rules of court that apply to Family Court practice and procedure. Subsection 123(2A) allows the Office of Parliamentary Counsel (OPC) to provide assistance in the drafting of rules of the Family Court. Currently, section 9 of the Legislative Instruments Act 2003 provides that rules of court are not legislative instruments. This provision is substituted by paragraph 8(8)(d) of the Legislation Act 2003, which provides that rules for the High Court, the Federal Court of Australia, the Family Court of Australia or the Federal Circuit Court of Australia are not legislative instruments.

Although court rules are not legislative instruments, subsection 123(2) of the FLA provides that the Legislative Instruments Act 2003 (other than some specified sections) applies in relation to rules ‘made under this section’. Item 133 of Schedule 1 to the Reform Act amends subsection 123(2) of the FLA to change the reference to the Legislative Instruments Act 2003 to the Legislation Act 2003. Item 1 of Schedule 2 to the Bill further amends subsection 123(2) to make it clear that the Legislation Act 2003 (with the exception of certain sections) will apply to rules of court made by the Family Court judges, whether those rules are made under section 123 of the FLA or

16. Explanatory Memorandum, Acts and Instruments (Framework Reform) (Consequential Provisions) Bill 2015, op. cit., p. 2. 17. Intellectual Property Laws Amendment Act 2015, accessed 14 August 2015. Schedule 4 of that Act will commence on proclamation. However, if the Schedule does not commence by 25 February 2017, it is automatically repealed. 18. Family Law Act 1975, section 123, accessed 5 August 2015.

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under any other Act. This change in wording is consistent with the enabling legislation of other federal courts and brings the Family Court into line with other federal court legislation.19

Item 2 amends subsection 123(2A) to makes it clear that OPC may assist the Family Court judges to make rules of court under the FLA or any other Act.

Part 1 of Schedule 2 to the Bill will commence on a day to be proclaimed, or six months after Royal Assent, whichever comes first.

Part 2—Amendment of the Legislative Instruments Act 2003 Items 3 and 4 amend section 9 of the Legislative Instruments Act 2003 and its accompanying note.20 Section 9 provides that rules of court for the High Court, the Federal Court of Australia, the Family Court of Australia and the Federal Circuit Court of Australia are not legislative instruments. The amendments remove the references to these specific courts to clarify that all rules of court are not legislative instruments, regardless of the court administering those rules. The note is amended by replacing ‘are’ with ‘may be’, so that it reads ‘rules of court may be treated as if they were legislative instruments by express amendment of the legislation providing for them to be made’. The Explanatory Memorandum explains that the amendment ‘updates the drafting of the note to reflect that the enabling legislation for all rules of court may not necessarily treat rules of court as if they were legislative instruments’.21

Part 3—Amendment of the Legislation Act 2003 As set out above, the content of section 9 of the Legislative Instruments Act 2003 will be reflected in paragraph 8(8)(d) of the Legislation Act 2003 when the latter Act commences. Part 3 of Schedule 2 of the Bill therefore amends proposed paragraph 8(8)(d) of the Legislation Act 2003 to reflect the amendments made to section 9 of the Legislative Instruments Act 2003 by Part 2 of that Schedule. Accordingly, item 5 repeals proposed paragraph 8(8)(d) of the Legislation Act 2003 to remove references to specific courts, instead providing that rules of court generally are not legislative instruments.

The current note to subsection 8(8) of the Legislation Act 2003 states that ‘rules of court are registered’ under that Act. Item 6 repeals and replaces the note to clarify that ‘rules of court may be registered’—that is, there is no requirement for them to be registered.

As Parts 2 and 3 of Schedule 2 make equivalent amendments to the Legislative Instruments Act 2003 and its replacement, the Legislation Act 2003, the amendments in Part 2 will not be needed if they do not commence before the Legislation Act 2003 comes into force. In that circumstance, Part 2 will not commence at all and Part 3 will commence at same time as Part 1 of Schedule 2 to the Bill, or immediately after the commencement of the Legislation Act 2003, whichever is later.

Schedule 3—Amendments relating to forms and technical matters Part 1—Amendments Section 14 of the Legislative Instruments Act 2003 provides that a legislative instrument may apply, adopt or incorporate material that is set out in Act or another legislative instrument. (This is referred to as ‘incorporation by reference’.) Section 46AA of the Acts Interpretation Act 1901 is an equivalent provision, which applies to incorporation of material into instruments that are not legislative instruments.22 The Reform Act proposed amendments to section 14 of the Legislative Instruments Act 2003 and section 46AA of the Acts Interpretation Act 1901.23 One of the amendments proposed to add subsection 14(4) to the Legislative Instruments Act 2003, to allow legislative instruments and notifiable instruments to authorise or require a form to be used, provided

19. Explanatory Memorandum, Acts and Instruments (Framework Reform) (Consequential Provisions) Bill 2015, op. cit., p. 135. See subsection 81(3) of the Federal Circuit Court of Australia Act 1999; subsection 59(4) of the Federal Court of Australia Act 1976; and subsection 86(2) of the Judiciary Act 1903 (all accessed 14 August 2015).

20. Legislative Instruments Act 2003, accessed 17 August 2015. 21. Explanatory Memorandum, Acts and Instruments (Framework Reform) (Consequential Provisions) Bill 2015, op. cit., p. 136. 22. Acts Interpretation Act 1901, accessed 17 August 2015. 23. Section 14 of the Legislative Instruments Act 2003 will be amended by items 21 to 25 of Schedule 1 to the Reform Act. Section 46AA of the

Acts Interpretation Act 1901 will be amended by items 112 to 116 of Schedule 1 to the Reform Act.

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that the form was a notifiable instrument or was otherwise publicly available.24 An equivalent amendment was made to section 46AA of the Acts Interpretation Act 1901.25

Items 2 and 3 of Schedule 3 to the Bill repeal and substitute proposed subsection 14(4) the Legislative Instruments Act 2003 and proposed subsection 46AA(4) of the Acts Interpretation Act 1901. The amendments provide that although instruments may provide for forms to be used, the general rules expressed in those sections will not apply to forms. The Explanatory Memorandum notes:

… that instruments may effectively incorporate forms, whether or not those forms are themselves required to be made publicly available. Because forms are administrative frameworks for the provision of information, and do not contain substantive legal content, it is not necessary that the forms themselves be made publicly available. 26

Items 170 and 178 of Schedule 1 to the Reform Act set out how the amendments to section 14 of the Legislative Instruments Act 2003 and section 46AA of the Acts Interpretation Act 1901 would apply. These items are no longer needed and are repealed by items 1 and 2 of Schedule 3 to the Bill.

Part 2—Application of amendments applying to forms Item 6 of Schedule 3 to the Bill provides that the amendments to sections 46AA of the Acts Interpretation Act 1901 and section 14 of the Legislation Act 2003 will apply to forms made before, on or after the commencement of the Schedule, whether the instrument providing for the form to be used is made before, on or after that commencement.

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24. Item 25 of Schedule 1 to the Reform Act 25. Item 115 of Schedule 1 to the Reform Act 26. Ibid., pp. 138-139.