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Amending Acts 1980 to 1989 Repeal Bill 2015



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ISSN 1328-8091

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BILLS DIGEST NO. 103, 2014-15 12 MAY 2015

Amending Acts 1980 to 1989 Repeal Bill 2015 Kirsty Magarey Law and Bills Digest Section

Contents

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

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

Committee consideration .................................................... 2

Senate Standing Committee for Selection of Bills ................... 2

Senate Standing Committee for the Scrutiny of Bills .............. 2

Statement of Compatibility with Human Rights .................... 2

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

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

Concluding comments ......................................................... 3

Date introduced: 18 March 2015

House: House of Representatives

Portfolio: Attorney-General

Commencement: The formal provisions commence on the day of Royal Assent and the substantive provisions come into effect 28 days later.

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.

Warning: All viewers of this digest are advised to visit the disclaimer appearing at the end of this document. The disclaimer sets out the status and purpose of the digest. Amending Acts 1980 to 1989 Repeal Bill 2015 2

Purpose of the Bill To remove a significant number of ‘spent Acts’ - amending or repealing Acts which are no longer required as the legal changes they were designed to make have occurred.

Background The Bill was introduced with the Omnibus Repeal Day (Autumn 2015) Bill 2015 and the Statute Law Revision Bill (No. 2) 2015.1 It is part of a package of repeal Bills which include the Statute Law Revision Bill (No. 2) 2014, the Amending Acts 1970 to 1979 Repeal Bill 2014 and the Omnibus Repeal Day (Spring 2014) Bill 2014.2 The first two of these earlier Bills were given Royal Assent on 25 February 2015 while, as at the time of writing, the latter is still before the Parliament.

The Bills Digests to the earlier Bills give the background to what has been treated as a package of amendments. In summary this Bill functions as a legislative clean-up, or statute revision Bill, removing from the list of current Acts a series of Acts which amended or repealed principal legislation. Since their operative effect is no longer relevant to the body of Australian laws they may be repealed without any significant consequence. The amendments or repeals have either taken effect on the principal Act, or the changes are no longer operative because the ‘head’ Act has been repealed. In either case, as the Explanatory Memorandum points out, none of the repeals to be effected by this Bill make any change to the substance of the law. 3 However, with an abundance of caution, the Explanatory Memorandum notes that:

It is considered that none of the application, saving or transitional provisions in the Acts to be repealed have ongoing effect. However, the operation of those provisions is preserved to provide certainty in the event that their effect is not in fact completely spent. The Acts do not contain any other substantive provisions which are not already spent.

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Committee consideration Senate Standing Committee for Selection of Bills The Senate Standing Committee for the Selection of Bills resolved not to refer the Bill to a committee.5

Senate Standing Committee for the Scrutiny of Bills The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.6

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 it does not engage any rights.7

The Parliamentary Joint Committee on Human Rights had no comment on the Bill, agreeing that it does not raise any relevant issues.8

1. The two accompanying Bills and their Digests are: Parliament of Australia, ‘Omnibus Repeal Day (Autumn 2015) Bill 2015 homepage’, Australian Parliament website, accessed 30 March 2015; T Fox, Omnibus Repeal Day (Autumn 2015) Bill 2015, Bills digest, 97, 2014-15, Parliamentary Library, Canberra, 2015, accessed 8 May 2015; Parliament of Australia, ‘Statute Law Revision Bill (No. 2) 2015 homepage’, Australian Parliament website, accessed 30 March 2015;

C Petrie, Statute Law Revision Bill (No. 2) 2015, Bills digest, 90, 2014-15, Parliamentary Library, Canberra, 2015, accessed 5 May 2015. 2. For the Bills digest on these Bills, see J Murphy, Statute Law Revision Bill (No. 2) 2014, Bills digest, 48, 2014-15, Parliamentary Library, Canberra, 2014; K Magarey, Amending Acts 1970 to 1979 Repeal Bill 2014, Bills digest, 57, 2014-15, Parliamentary Library, Canberra, 2014;

D Spooner, Omnibus Repeal Day (Spring 2014) Bill 2014, Bills digest, 62, 2014-15, Parliamentary Library, Canberra, 2014, all accessed 25 March 2015. 3. Explanatory Memorandum, Amending Acts 1980 to 1989 Repeal Bill 2015 p. 2, accessed 12 May 2015. 4. Ibid., p. 4.

5. Senate Standing Committee for Selection of Bills, Report No. 4 for 2015, The Senate, Canberra, 2015, accessed 2 May 2015. 6. Senate Standing Committee for the Scrutiny of Bills, Alert Digest No. 4 of 2015, The Senate, Canberra, 2015, p. 1, accessed 12 May 2015. 7. The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill. 8. Parliamentary Joint Committee on Human Rights, Twenty-first report of the 44th Parliament, The Senate, Canberra, 24 March 2015, p. 1,

accessed 12 May 2015.

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Financial implications According to the Explanatory Memorandum the Bill has no financial implications.9

Key issues and provisions There are arrangements in some Australian jurisdictions whereby amending Acts, such as the amending Acts being removed by this Bill, are automatically removed from the statute books. This happens once their purpose has been fulfilled. Both the ACT (section 89 (Automatic repeal of certain laws and provisions), Legislation Act 2001 (ACT)) and Queensland (section 22C (Automatic repeal of amending Act) Acts Interpretation Act 1954 (Qld)) have such legislative provisions.10

Another drafting practice which is used to ensure that ‘spent Acts’ do not remain on the statute books is the inclusion of specific clauses (sunsetting clauses) repealing the legislation in question once its purpose is complete (or once it cannot be completed). Thus, for instance, since 2007, Victoria includes in all amending Acts a provision (generally the last provision) which repeals the amending Act after a fixed period of time.11

The Victorian Scrutiny of Acts and Regulations Committee suggested this drafting approach on the basis that it would save the time and expense of having to repeal amending Acts in a statute law revision Bill.12

The Commonwealth has automated the process of repealing or sunsetting legislative instruments (the Legislative Instruments Act 2003, Part 5A (Repeal of spent legislative instruments and provisions) and Part 6 (Sunsetting of legislative instruments)) but has yet to automate the process of removing spent amending Acts, hence the need for this Bill to remove legislation that has served its purpose and no longer has any legislative effect.13

Schedule 1 repeals 870 obsolete or redundant amending or repeal Acts. The repealed Acts will continue to be accessible through the historical databases on Comlaw and other electronic legal sites.

Subclause 3(2) provides that if an Act listed in Schedule 1 includes any application, saving or transitional provision, any ongoing operation of the provision is preserved.

Section 7 of the Acts Interpretation Act 1901 (Cth) provides that repealing an Act that repealed another Act (the original Act) does not revive anything that was in force in the original Act prior to the commencement of the repealing Act.14

Concluding comments The Bill is part of a process of legislative ‘housekeeping’ which is commonly engaged in by all jurisdictions which do not automate the process of repeal. The repetitive nature of this ‘cleaning-up’ process is shown by the need to package such Bills. The Bill is unlikely to be controversial.

9. Explanatory Memorandum, op. cit., p. 3. 10. With respect to this paragraph and others on the topic I am indebted to the ACT Parliamentary Counsel’s Office for sharing their internal working documents examining ‘Automatic Repeal’ (‘Automatic repeal of legislation - research’ and ‘Automatic repeal of legislation - talking points’). These documents may be requested from the ACT Parliamentary Counsel’s Office.

11. See, for example, section 10 of the Corrections Amendment (Further Parole Reform) Act 2014 (Vic), accessed 2 May 2015. 12. ACT Parliamentary Counsel's Office, ‘Automatic Repeal of legislation - research’, op. cit. 13. Legislative Instruments Act 2003, accessed 12 May 2015. 14. Acts Interpretation Act 1901 (Cth), section 7, accessed 12 May 2015.

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