Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Statute Law Revision (Spring 2016) Bill 2016



Download PDFDownload PDF

ISSN 1328-8091

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.

BILLS DIGEST NO. 8, 2016-17 13 SEPTEMBER 2016

Statute Law Revision (Spring 2016) Bill 2016 Christina Raymond Law and Bills Digest Section

Contents

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

Structure of the Bill ............................................................. 2

Relationship to other Bills .................................................... 2

Background ......................................................................... 4

Contemporary use of statute law revision Bills ....................... 4

Development of statute law revision legislation ..................... 5

First Parliamentary Counsel’s editorial powers under the Legislation Act 2003................................................................. 5

Decision-making about the mechanism for making editorial changes to an Act ...................................................... 6

Committee consideration .................................................... 7

Policy position of non-government parties/independents ..... 7

Position of major interest groups ......................................... 7

Financial implications .......................................................... 8

Statement of Compatibility with Human Rights .................... 8

Parliamentary Joint Committee on Human Rights .................. 8

Key issues and provisions..................................................... 8

Schedule 1—Principal Acts ...................................................... 8

Schedule 2—Amending Acts ................................................... 9

Schedule 3—References to Ministers and departments ......... 9

Schedules 4 and 5—Repeals .................................................. 10

Improving transparency in decision-making about mechanisms for making editorial changes ............................ 11

Concluding comments ....................................................... 12

Date introduced: 1 September 2016

House: House of Representatives

Portfolio: Attorney-General

Commencement: Sections 1-3 will commence on the day of Royal Assent. Schedules 1, 3, 4 and 5 will commence 28 days after Royal Assent. The commencement dates for the proposed amendments to the provisions of amending Acts in Schedule 2 are tied to the commencement dates for the relevant amending Acts.

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

September 2016.

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. Statute Law Revision (Spring 2016) Bill 2016 2

Purpose of the Bill The Statute Law Revision (Spring 2016) Bill 2016 makes minor amendments to 20 statutes to correct various technical errors as a result of drafting and clerical mistakes, and to update some expressions to accord with contemporary drafting practice.1 The Bill also repeals spent or obsolete provisions in two Acts, and one spent amending Act.2

The Government has stated that the proposed amendments would not, if enacted, change the substance of the law.3 In particular, it stated that the proposed ‘error correction’ amendments would bring the text of the relevant legislation into line with how it would be interpreted by a court, via the application of the so-called ‘slip rule’ of interpretation. This rule is said to enable relevant provisions which contain drafting errors to be read in their correct form despite the errors.4

Structure of the Bill The Bill makes the following amendments in five schedules:

• correcting minor drafting errors and modernising language used in offence provisions in 15 principal Acts (Schedule 1)

• correcting misdescribed amendments in four amending Acts (Schedule 2)

• substituting references to specific Ministers and Departments in one principal Act with generic references, to remove the need to rely on ‘substituted reference orders’ made under the Acts Interpretation Act 1901 as a result of machinery of government changes (Schedule 3)

• repealing spent and obsolete provisions of two primary Acts (Schedule 4)

• repealing a spent amending Act (Schedule 5).

Relationship to other Bills Bills introduced in the 44th Parliament This Bill contains measures that were introduced in two Bills that lapsed in the 44th Parliament—the Statute Law Revision Bill (No. 2) 2016 (No. 2 Bill)5 and the Statute Law Revision Bill (No. 3) 2016 (No. 3 Bill).6

The No. 2 Bill was introduced on 17 March 2016 and lapsed at prorogation on 15 April 2016. With the exception of one measure, it is identical to Statute Law Revision (Spring 2016) Bill 2016.7

Schedule 1 of the No. 2 Bill was re-introduced as the Statute Law Revision Bill (No. 3) 2016 (No. 3 Bill) upon the commencement of the second session of the 44th Parliament on 18 April 2016.8 The No. 3 Bill lapsed at dissolution of the Parliament on 9 May 2015. It was a type of Bill known as a ‘formal Bill’ or a ‘privilege Bill’, introduced by the Prime Minister on the opening of the second session.

1. Schedules 1-3. 2. Schedules 4-5. 3. Explanatory Memorandum, Statute Law Revision (Spring 2016) Bill 2016, p. 2. 4. Ibid., p. 4. The term ‘slip rule’ does not appear to be recognised formally by this name, under statute or at common law, as a discrete rule or

principle of statutory interpretation with respect to the correction of apparent errors in the text of legislation. However, as two leading commentators have observed, courts have applied the general principles of statutory interpretation to ‘correct’ obvious printing and drafting errors in provisions, in that they have been prepared to read such provisions in their correct form. (In particular, courts have applied the so-called ‘golden rule’ of interpretation under which the literal meaning of words used in a provision can be modified in order to avoid absurdity; or by taking a purposive approach to the interpretation of the provision, and preferring a meaning that best achieves the purpose or object of an Act, as is reflected in section 15AA of the Acts Interpretation Act 1901.) See: DC Pearce and RS Geddes, Statutory Interpretation in Australia, 8th edn., LexisNexis, North Ryde, 2014, pp. 64-65 at paragraph [2.28]. Accordingly, the so-called ‘slip rule’ may reasonably be understood as a generic label that is used to refer to these general interpretive principles as they have been applied to construe provisions that contain apparent drafting or printing errors. 5. Parliament of Australia, ‘Statute Law Revision Bill (No. 2) 2016 homepage’, Australian Parliament website. 6. Parliament of Australia, ‘Statute Law Revision Bill (No. 3) 2016 homepage’, Australian Parliament website. 7. Parliament of Australia, ‘Statute Law Revision Bill (No. 2) 2016 homepage’, op. cit. The Library published the following Bills Digest: C Petrie,

Statute Law Revision Bill (No. 2) 2016, Bills digest, 105, 2015-16, Parliamentary Library, Canberra, 2016. (Note that the one difference between the No. 2 Bill and the present Bill is that the No. 2 Bill contained an additional measure, in Schedule 1, item 31. This sought to correct a numbering error in a note to subsection 65(1) of the Migration Act 1958. This measure was included in a previous Bill, the Statute Law Revision Bill (No. 3) 2015, which was enacted as the Statute Law Revision Act (No. 1) 2016, per Schedule 1, item 22.) 8. Parliament of Australia, ‘Statute Law Revision Bill (No. 3) 2016 homepage’, Australian Parliament 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. Statute Law Revision (Spring 2016) Bill 2016 3

The House of Representatives has adopted a traditional practice of the United Kingdom upon the opening of a new Parliament, or new session of a Parliament. Standing Order 6(a) provides that ‘before the Governor-General’s speech is reported, some formal business shall be transacted and the Prime Minister may announce his or her Ministry’.9 According to House of Representatives Practice:

Business which has preceded the reporting of the speech also includes announcements by the Prime Minister of other government party appointments and by the leaders of the other parties informing the House of their party appointments. A non-contentious bill, known as the ‘formal’ bill or ‘privilege’ bill, is then presented, usually by the Prime Minister. The bill is read a first time and the second reading made an order of the day for the next sitting. The order of the day is placed on the Notice Paper and nowadays remains the last item of government business throughout the session, the bill lapsing at prorogation or dissolution.

There is no prescribed or traditional form or title for the ‘privilege’ bill. In earlier times the ‘privilege’ bill has been passed into law, although it was customary not to proceed beyond the first reading stage before consideration of the Governor-General’s speech. However, in recent times it has been the practice for the ‘privilege’ bill not to proceed beyond the first reading stage even after consideration of the Governor-General’s speech. Although the ‘privilege’ bill is not proceeded with, its provisions may be incorporated in another bill introduced and passed later in the Parliament.

10

Bills introduced in the 45th Parliament The Government introduced the Statute Law Revision (Spring 2016) Bill in the same sitting week as the Statute Law Revision Bill 201611 and the Statute Update Bill 2016.12

Statute Law Revision Bill 2016 The Statute Law Revision Bill 2016 is a ‘formal Bill’ or a ‘privilege Bill’, introduced by the Prime Minister upon the opening of the 45th Parliament on 30 August 2016.13 It duplicates the provisions of Schedule 1 to the Statute Law Revision (Spring 2016) Bill. This duplication of content, combined with the fact that the formal Bill has not been read a second time, tends to suggest that it may not proceed, consistent with the custom described in House of Representatives Practice (extracted above).

Statute Update Bill 2016 The Government introduced the Statute Update Bill 2016 at the same time as the Statute Law Revision (Spring 2016) Bill on 1 September 2016.14 The Statute Update Bill is also aimed at improving the accuracy and currency of Commonwealth legislation. It reintroduces a Bill of the same short title that was introduced in the 44th Parliament on 17 March 2016 and lapsed at prorogation.15 It focuses on updating drafting expressions to take account of developments to drafting precedents and practices.16

The Government explained that the Statute Update Bill has been introduced separately to the Statute Law Revision Bill because some of its proposed amendments ‘may make minor changes’ to the substance and legal effect of the relevant provisions and are therefore ‘not considered appropriate for inclusion in a Statute Law Revision Bill’.17

9. House of Representatives, Standing Orders, Department of the House of Representatives, Canberra, 26 March 2015, chapter 2, p. 13. 10. BE Wright and IC Harris (eds.), House of Representatives practice, 6th edn., Department of the House of Representatives, Canberra, 2012, chapter 7, p. 220 (footnotes omitted). 11. Parliament of Australia, ‘Statute Law Revision Bill 2016 homepage’, Australian Parliament website. 12. Parliament of Australia, ‘Statute Update Bill 2016 homepage’, Australian Parliament website. 13. Parliament of Australia, ‘Statute Law Revision Bill 2016 homepage’, op. cit.; M Turnbull, ‘Statute Law Revision Bill 2016: first reading’, House

of Representatives, Debates, 30 August 2016, p. 11. 14. Parliament of Australia, ‘Statute Update Bill 2016 homepage’, Australian Parliament website. 15. Parliament of Australia, Statute Update Bill 2016 homepage, Australian Parliament website. (The Library did not publish a Bills Digest prior to

the prorogation of the 44th Parliament. A separate Bills Digest will be published for the Bill as introduced to the 45th Parliament.) 16. Explanatory Memorandum, Statute Update Bill 2016, p. 1. 17. Ibid.

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. Statute Law Revision (Spring 2016) Bill 2016 4

Background Statute law revision Bills are an established feature of Commonwealth legislative practice. Bills of this kind are introduced periodically to address purely formal issues in legislation, including correcting errors, making other editorial changes such as modernising drafting style, and repealing spent legislation.18

The first Statute Law Revision Bill was introduced and enacted in 1934.19 The Attorney-General at that time, John Latham (subsequently the fifth Chief Justice of the High Court of Australia) explained the object of the inaugural Bill in the following terms:

There is an obligation resting upon the Government of the Commonwealth, and upon this Parliament, to present the statute law of the Commonwealth in a convenient, accessible and readily intelligible form. We try to do that as the legislation is drafted, and as it is passed through Parliament from time to time; but as the years go by it becomes evident that there is a great deal of obsolete matter on the statute-book. The object of this Bill is merely to cut away the dead wood on the statute-book.

20

Contemporary use of statute law revision Bills Successive governments and parliaments have respectively introduced and enacted statute law revision Bills on a routine basis. They have acknowledged the value of such legislation in improving the accuracy, useability and currency of Commonwealth Acts.21

The Legislation Handbook produced by the Department of the Prime Minister and Cabinet describes the contemporary purpose of statute law revision Bills in the following way:

A Statute Law Revision Bill makes 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 legislation. No proposals involving changes of policy will be included in a Statute Law Revision Bill. 22

This description is consistent with the traditional assumption courts have applied to the interpretation of statute law revision legislation. According to two leading commentators, DC Pearce and RS Geddes, courts usually take the approach of ‘assuming that statute law revision Acts are not intended to change the substance of the law’ but rather ‘tidy up the statute book’.23 As such, Pearce and Geddes suggest that courts are normally ’slow to infer that a change of substance has been made to an Act where an alternative interpretation not changing the previous operation of the Act is tenable’.24

However, Pearce and Geddes sound the following caution with respect to the interpretation of Commonwealth statute law revision legislation, which also underscores the importance of thorough Parliamentary scrutiny of such Bills:

The assumption that statute law revision Acts are not changing the law should no longer be considered appropriate in relation to Commonwealth legislation. It is common to find substantial statute law revision Acts being made that contain what are claimed to be non-controversial amendments. Whether this description is apt in all cases is questionable, but in any case there is no doubt that the amendments contained in the Acts are intended to make substantive changes to many Acts and not simply to tidy them up.

25

18. Department of the Prime Minister and Cabinet (DPMC), Legislation handbook, 4th edn., DPMC, Canberra, 1999, p. 24. See also: Pearce and Geddes, Statutory Interpretation in Australia, op. cit., p. 27 at paragraph [1.24] and pp. 340-341 at paragraph [7.25]. 19. Further information about the history of statute law revision legislation, including an historical list of all such Acts from 1934-2014, is provided in J Murphy, Statute Law Revision Bill (No 2) 2014, Bills digest, 48, 2014-15, Parliamentary Library, Canberra, 2014. 20. J Latham, ‘Second reading speech: Statute Law Revision Bill 1934’, House of Representatives, Debates, 2 August 1934, pp. 1073-76. 21. Some recent examples of such comments by members of the Government and Opposition during the 45th, 44th and 43rd Parliaments

include: G Hunt, ‘Second reading speech: Statute Law Revision (Spring 2016) Bill 2016’, House of Representatives, Debates, 1 September 2016, p. 19; C Porter, ‘Second reading speech: Statute Law Revision Bill (No 2) 2015’, House of Representatives, Debates, 18 March 2015, p. 2707; N Roxon, ‘Second reading speech: Statute Law Revision Bill 2012’, House of Representatives, Debates, 15 August 2012, p. 1; and M Keenan, ‘Second reading speech: Statute Law Revision Bill 2012’, House of Representatives, Debates, 22 August 2012, p. 79. 22. DPMC, Legislation handbook, op. cit., p. 24. 23. Pearce and Geddes, Statutory Interpretation in Australia, op. cit., p. 341 at paragraph [7.25]. 24. Ibid.

25. Ibid.

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. Statute Law Revision (Spring 2016) Bill 2016 5

According to the Legislation Handbook, which was last updated in 2000, statute law revision Bills are prepared infrequently and ‘usually only during an election period’.26 However, recent practice suggests that they are used more regularly. For example, a search of the Federal Register of Legislation (FRL)27 in September 2016 indicates that the Parliament has enacted at least one statute law revision Bill, or a statute law stocktake Bill, each year since 2002. In the 44th Parliament, statute law revision Bills were introduced as part of the Government’s regular ‘Repeal Day’ package aimed primarily at reducing so-called ‘regulatory red tape’.28

Development of statute law revision legislation The Office of Parliamentary Counsel (OPC)29 is responsible for preparing statute law revision Bills.30 OPC plays a significant role in identifying editorial and other technical matters suitable for inclusion in such Bills, in addition to drafting the relevant amendments.31

First Parliamentary Counsel (FPC) is authorised to approve the inclusion of such measures in appropriate amending Bills.32 Depending on the Government’s legislative program during a particular Parliamentary sitting period, statute law revision-type amendments may be included in other Government Bills proposed for introduction. This might include, for example, Bills that propose to make substantive amendments to the relevant Acts or related Acts; or ‘portfolio Bills’ that propose various, minor amendments to a range of legislation administered by a particular portfolio.33

As explained below, statute law revision Bills, or other Bills containing statute law revision-type amendments, are not the only vehicle for making editorial and other minor amendments to the text of an Act.

First Parliamentary Counsel’s editorial powers under the Legislation Act 2003 The Legislation Act 2003 was amended in 2015 to authorise FPC to make minor editorial and presentational changes to the text of an Act in preparing a compilation34 for registration on the FRL.35 These amendments commenced on 5 March 2016.36

In particular, section 15V of the Legislation Act authorises FPC to make an editorial change to the text of an Act in the course of preparing a compilation of the Act for registration on the FRL.37 This power is exercisable only if FPC considers that the change is desirable to bring the Act or instrument into line with, or more closely into line

26. DPMC, Legislation handbook, op. cit., p. 24. 27. The FRL (accessible at Federal Register of Legislation) is established under section 15A of the Legislation Act 2003. It is a central repository of all registered Acts, legislative instruments and notifiable instruments and other relevant documents and information (such as explanatory memoranda). It is maintained by the First Parliamentary Counsel (FPC) under Part 1, Division 2 of the Legislation Act. (The role of FPC is

explained further below.) 28. Petrie, Statute Law Revision Bill (No 2) 2016, Bills digest, op. cit., p. 2. 29. OPC is an independent statutory agency responsible for drafting proposed Commonwealth laws and subordinate legislation, and performing

related functions including publication and gazettal. OPC is established under, and its core functions are prescribed by, the Parliamentary Counsel Act 1970. It is headed by the First Parliamentary Counsel (FPC) who is appointed by the Governor-General. 30. DPMC, Legislation handbook, op. cit., p. 24. See also: The 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. 4-11. 31. Ibid.

32. DPMC, Legislation handbook, op. cit., p. 24; OPC, Drafting Direction No. 4.4, op cit., pp. 7-8. 33. DPMC, Legislation handbook, op. cit., pp. 23-24. 34. A ‘compilation’ of an Act is relevantly defined in section 4 of the Legislation Act as a document showing the text of an Act as amended or modified and in force on a day stated in the document. In other words, a compilation 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. (The terms ‘principal Act’ and ‘amending Act’ are defined in section 11B of the Acts Interpretation Act 1901. Section 11B further provides that every amending Act must be construed with the principal Act as part of the principal Act.) 35. Legislation Act 2003, Chapter 2, Part 2, Division 3, inserted by the Acts and Instruments (Framework Reform) Act 2015. (Framework Reform Act). See also: D. Spooner, Acts and Instruments (Framework Reform) Bill 2014, Bills digest, 70, 2014-15, Parliamentary Library, Canberra, 2014. 36. Framework Reform Act, section 2. 37. Legislation Act, subsection 15V(1). (This provision also authorises FPC to make editorial changes to legislative instruments and notifiable instruments.) Subsection 15V(3) confers a corresponding power on FPC to make ‘presentational changes’ to an Act or instrument, being changes which affect the format, layout, printing style or any other presentational aspect of the Act or instrument.

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. Statute Law Revision (Spring 2016) Bill 2016 6

with, legislative drafting practices of OPC; or to correct an error or a misdescribed amendment.38 The relevant changes must not alter the legal effect of the legislation.39

The term ‘editorial change’ is defined in section 15X, which prescribes the amendments FPC is permitted to make under section 15V. In broad terms, these include matters of spelling, punctuation, grammar and syntax, gender references, cross-references to other Acts or instruments, and numbering (among other matters).40 They include the correction of errors in relation to such matters.41

Editorial changes made by FPC under section 15V have effect as though they were made by legislative amendments to the original Act, with effect from the date on which the relevant compilation of the Act is registered on the FRL.42 FPC is required to include a note on the FRL identifying any editorial changes made, including a brief outline of those changes in general terms.43 The Government has indicated that OPC will also include information about editorial corrections in its annual reports.44

Decision-making about the mechanism for making editorial changes to an Act The statute law revision Bills introduced into the 44th and 45th Parliaments in 2016—including the present Bill— are the first statute law revision legislation to be introduced after the commencement of the ‘editorial change’ powers in the Legislation Act. This raises the question of how the two mechanisms will interact in practice.

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. For the reasons explained below, it is not entirely clear when one of these mechanisms will be applied (or ought to be applied) in preference to the other.

Overlap of statutory and administrative mechanisms In the course of introducing the 2015 amendments to the Legislation Act, the Government acknowledged that ‘most amendments in the Statute Law Revision Bills routinely prepared by the OPC would be able to be made by the editorial change powers’45 and indicated that FPC’s editorial power was intended to ‘conserve limited parliamentary time and other resources’.46 The Government stated that FPC would release further guidance about ‘cases in which it would be appropriate to use the [editorial change] power’.47

OPC’s Drafting Direction No. 4.4 On 29 February 2016, FPC issued Drafting Direction No. 4.4—Changes using FPC's editorial powers and statute law revision amendments. The Direction states that FPC’s editorial change power should be used ‘sparingly’.48

The Direction identifies the following editorial changes in section 15X of the Legislation Act as being ‘the kinds of changes that will most commonly be made under [FPC’s editorial correction power] in section 15V’.49

(a) changes in spelling (such as replacing “authorize” with “authorise”—see paragraph 15X(2)(a));

(b) changes in punctuation that do not affect the meaning (such as replacing “income year.” with “income year;”—see paragraph 15X(2)(a));

38. Legislation 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. 39. Legislation Act, subsection 15V(6). (Note that subsection 15V(7) provides a limited exception for editorial changes which deal with savings, transitional and validation provisions, or consequential matters.) 40. Legislation Act, subsection 15X(2). 41. Legislation Act, paragraph 15X(2)(p) and subsection 15X(4). 42. Legislation Act, section 15W. 43. Legislation Act, paragraph 15P(1)(b). Notices of editorial changes to a particular Act are typically included in the endnotes to each

compilation, and OPC publishes six-monthly Editorial Changes Reports, which provide consolidated information about all editorial changes made in the relevant period: Federal Register of Legislation (FRL), ‘Editorial changes reports’, FRL website. 44. Senate Standing Committee for the Scrutiny of Bills, Report, 1, 2015, The Senate, 11 February 2015, p. 18 (quoting correspondence from the Attorney-General dated 19 January 2015). See also: OPC, Drafting direction no. 4.4, op. cit., p. 6

(“FPC will report each year on the use of the FPC's editorial powers in the annual report for the Office of Parliamentary Counsel”.) 45. Senate Standing Committee for the Scrutiny of Bills, First report of 2015, op cit., p. 13 (quoting correspondence from the Attorney-General dated 19 January 2015). 46. Explanatory Memorandum, Acts and Instruments (Framework Reform) Bill 2014, p. 46. 47. Senate Standing Committee for the Scrutiny of Bills, First report of 2015, op. cit., p. 17. 48. OPC, Drafting direction no. 4.4, op. cit., p. 3. 49. Ibid., p. 3.

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. Statute Law Revision (Spring 2016) Bill 2016 7

(c) correcting obvious grammatical errors (such as replacing “A a permanent” with “A permanent”—see paragraph 15X(2)(a));

(d) adding a conjunction (so that each paragraph ends with the same conjunction) (see paragraph 15X(2)(a));

(e) changing the short title of an Act (such as changing the Air Accidents (Commonwealth Liability) Act 1963 to the Air Accidents (Commonwealth Government Liability) Act 1963—see subparagraph 15X(2)(b)(i) and paragraph 15X(2)(c));

(f) changing a reference to a person, body or other entity (such as replacing “Public Service Commissioner” with “Australian Public Service Commissioner”—see subparagraph 15X(2)(b)(ii));

(g) making minor changes to numbering (such as relettering paragraph (f) as paragraph (da)—see paragraph 15X(2)(d));

(h) changing the order of definitions (see paragraph 15X(2)(e));

(i) removing a definition that is not used (see paragraph 15X(2)(k));

(j) removing a reference to a provision where the provision no longer exists (see paragraphs 15X(2)(k) and (p) and subsection 15X(4));

(k) incorporating a misdescribed amendment (such as by omitting “the making of claims” from a compilation where the amending Act or instrument directed “making claims” be omitted—see paragraph 15X(2)(o));

(l) correcting an error in a cross reference where there is no doubt as to the cross reference being referred to (see paragraphs 15X(2)(p) and (4)(c)). 50

The Direction further states that amendments of the following kind should be included in an amending Bill (such as a statute law revision Bill), or are generally more appropriately done via such a Bill:

• Consequential amendments that are required to be made as a result of changes made by a Bill, such as when the name of an Act is changed. 51

• Repealing redundant provisions (other than definitions) and Acts. 52

The Direction sets out a process by which OPC’s drafting, editorial and publications staff may identify mistakes in Acts (or instruments) and notify them to a ‘designated drafter’ within OPC. The designated drafter then makes a recommendation to FPC about the appropriate form of remedial action from among FPC’s editorial power, the inclusion of amendments in a statute law revision Bill, or in another kind of Bill.53 The Direction states that ‘FPC will then decide which of those three approaches should be adopted’54 but does not prescribe the matters, or provide an indication of the types of matters, that FPC must or may take into account in making this decision, beyond the general identification of changes that will commonly be made via section 15V (quoted above).

Committee consideration At its meeting on 1 September 2016, the Senate Standing Committee for the Selection of Bills deferred its consideration of the Bill to its next meeting.55

The Senate Standing Committee for the Scrutiny of Bills has not made any comment on the Bill to date. The Committee considered the No. 2 Bill and the No. 3 Bill and indicated that it had no comment.56

Policy position of non-government parties/independents Non-government parties and independents do not appear to have commented publicly on the Bill to date.

Position of major interest groups Major interest groups do not appear to have commented publicly on the Bill to date.

50. Ibid., pp. 3-4. 51. Ibid., p. 4. 52. Ibid.

53. Ibid., pp. 4-6. 54. Ibid., p. 5. 55. Senate Standing Committee on the Selection of Bills, Report, 5, 2016, The Senate, 1 September 2016. 56. Senate Standing Committee for the Scrutiny of Bills, Alert digest, 5, 2016, The Senate, 3 May 2016, pp. 15-16.

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. Statute Law Revision (Spring 2016) Bill 2016 8

Financial implications The Explanatory Memorandum states that the Bill will have no financial impact.57

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.58

In particular, the Government has stated that the Bill does not engage any of the applicable rights or freedoms because it does not change the legal substance or effect of the provisions which are the subject of the proposed amendments.59 As discussed in the ‘key issues and provisions’ section of this Bills Digest, this statement appears to be an accurate description of the proposed amendments in the Bill.

Parliamentary Joint Committee on Human Rights The Parliamentary Joint Committee on Human Rights has not made any comment on the Bill to date. The Committee considered that the No. 2 Bill and the No. 3 Bill and did not raise human rights concerns.60

Key issues and provisions Schedule 1—Principal Acts Schedule 1 to the Bill contains proposed amendments to 15 principal Acts,61 which generally correct drafting errors of the following kind:

• incorrect cross-references to other provisions62

• incorrect citations of the short titles of Acts and international conventions63

• grammatical, spelling and other typographical errors (for example, incorrect capitalisation, a missing heading, redundant words due to duplication, an incorrect reference to the Federal Circuit Court as the Federal Magistrates Court)64 and

• errors in the numbering of provisions (such as incorrectly identifying paragraphs in a subsection as separate subsections).65

Schedule 1 also amends the language used in a provision conferring a power of arrest in subsection 100(1) of the Excise Act 1901 to accord with contemporary drafting practice. 66 Currently, the provision authorises the warrantless arrest of a person, if the arresting officer ‘has reasonable cause to believe’ that the person ‘is guilty of’ certain offences against the Excise Act. Item 18 omits the phrase ‘is guilty of’ and substitutes the contemporary expression ‘has committed the offence of’. The Explanatory Memorandum indicates that this

57. Explanatory Memorandum, Statute Law Revision (Spring 2016) Bill 2016, op. cit., p. 2. 58. The Statement of Compatibility with Human Rights can be found at page 3 of the Explanatory Memorandum to the Bill. 59. Explanatory Memorandum, Statute Law Revision (Spring 2016) Bill 2016, op. cit., p. 3. 60. Parliamentary Joint Committee on Human Rights (PJCHR), Thirty Seventh Report of 44th Parliament, 2 May 2016, p. 2; and

PJCHR, Thirty Eighth Report of 44th Parliament, 3 May 2016, p. 1. 61. These are: Aviation Transport Security Act 2004 (item 1); Bankruptcy Act 1966 (item 2); Biosecurity Act 2015 (items 3-9); Child Support (Registration and Collection) Act 1988 (item 10); Civil Aviation Act 1988 (items 11-12); Classification (Publications, Films and Computer Games)

Act 1995 (item 13); Crimes Act 1914 (items 14-15); Customs Act 1901 (items 16-17); Excise Act 1901 (items 18-26); Fair Work Act 2009 (item 27); Family Law Act 1975 (item 28); International Arbitration Act 1974 (item 29); Migration Act 1958 (items 30-32); Remuneration and Allowances Act 1990 (item 33); and My Health Records Act 2012 (item 34). 62. Items 3-8, 11. 63. Item 1, 30, 34. 64. Items 2, 9, 10, 14-17, 19-29, 31-33. 65. Items 13, 21, 23. 66. This provision confers a power on authorised officials to arrest persons without warrant on suspicion of certain offences against the Excise Act, relating to the unlawful manufacture, receipt or possession of excisable goods, or being found without reasonable excuse on premises upon which excisable goods are being illegally manufactured.

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. Statute Law Revision (Spring 2016) Bill 2016 9

drafting practice ‘recognises that it is the role of courts to find persons guilty of an offence’67 as was recognised by the High Court in Polyukhovich v Commonwealth (1991).68

The amendments in Schedule 1 will commence 28 days after Royal Assent.69 The Explanatory Memorandum states that this is because the so-called ‘slip rule’ of interpretation will have been applied to each error, with the result that the proposed amendments merely correct the text of each principal Act rather than change the legal effect of the relevant provisions.70 This is consistent with the guidance provided in OPC’s Drafting Direction No. 4.4, which states that the ’basic principle’ for statute law revision amendments ‘is that the amendments should commence 28 days after Royal Assent to the Statute Law Revision Act’.71

Schedule 2—Amending Acts Schedule 2 to the Bill contains proposed amendments to four amending Acts72 to fix misdescribed amendments. These misdescriptions include:

• the omission of a provision containing the relevant amending instruction (for example, ‘repeal the paragraph, substitute:’)73

• typographical errors in amending instructions and other provisions, such as:

- an incorrect reference to the relevant provision to be amended (for example, the wrong provision number or a grammatical error in transposing the relevant provision)74 - an incorrect citation of the short title of another Act (for example, in a citation in a commencement provision, where the commencement date is tied to the commencement of the Act cited).75 Each item in Schedule 2 commences immediately after the commencement date for the relevant provision of the corresponding amending Act.76 As all of the amending Acts have commenced, the amendments in Schedule 2 have retrospective application. This approach is consistent with the general principle set out in Drafting Direction No. 4.4 for the commencement of misdescribed amendments in amending Acts.77 This approach ensures that the correct form of amendment has effect from the date on which the relevant amending Act commenced. Applying a prospective commencement date—for example, upon the provision of Royal Assent to the Statute Law Revision Act—would create a risk that the misdescribed amendments in the amending Acts would have been in force until the corrections contained in the present Bill (if enacted) commenced. Hence, the amending Act may have been rendered ineffective in the interim period.

Schedule 3—References to Ministers and departments Part 1 of Schedule 3 to the Bill amends provisions of the Public Lending Right Act 1985.78 The measures in items 1-3 will place in primary legislation certain amendments that were made in September 2015 via a type of legislative instrument (known as a ‘substituted reference order’) made under subsection 19B(2) of the Acts Interpretation Act 1901.79 Subsection 19B(2) relevantly provides that a ‘substituted reference order’ has the

67. Explanatory Memorandum, Statute Law Revision (Spring 2016) Bill 2016, op. cit., p. 8. 68. Polyukhovich v Commonwealth (1991) 172 CLR 501; [1991] HCA 32. 69. Clause 2 (per item 2 in column 1 of the table). 70. Explanatory Memorandum, Statute Law Revision (Spring 2016) Bill 2016, op. cit., p. 4. 71. OPC, Drafting direction no. 4.4, op. cit., pp. 9-10. 72. These are: Australian Radiation Protection and Nuclear Safety Amendment Act 2015 (item 1); Indirect Tax Laws Amendment (Assessment) Act

2012 (item 2); Migration Amendment (Temporary Sponsored Visas) Act 2013 (item 3); Tax Laws Amendment (Confidentiality of Taxpayer Information) Act 2010 (item 4). 73. Item 1. 74. Items 2, 4. 75. Item 3. 76. Section 2 (per items 3-6 in column 1 of the table). 77. OPC, Drafting direction no. 4.4, op. cit., p. 10. 78. This Act establishes a ‘public lending right scheme’ for the making of payments to Australian creators and publishers of books in Australia, in recognition of their loss of income from their books being made available for loan from, or for use in, public lending libraries in Australia (per section 2A). 79. Subsection 19B(2) is a type of provision that is referred to colloquially as a ‘Henry VIII clause’ in that it authorises the amendment of a provision of a primary Act.

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. Statute Law Revision (Spring 2016) Bill 2016 10

effect of amending provisions of primary legislation referring to particular Ministers or departments in certain circumstances, including in the event of machinery of government changes.80

In particular, the measures in Schedule 3 omit certain references in the Public Lending Right Act to a named portfolio Minister and Department (namely, the Attorney-General and the Attorney-General’s Department) and substitute them with references to ‘the Minister administering the Copyright Act 1968’ and ‘the Department administered by the Minister administering the Copyright Act 1968’.81 This consolidates in primary legislation amendments made via a substituted reference order on 26 November 2015, to reflect the transfer of certain portfolio responsibilities from the Attorney-General to the Minister for Communications with respect to the administration of the Copyright Act 1968.82

As such, the amendments made by Schedule 3 will not change the legal effect of the provisions of the Public Lending Right Act, but rather will ensure that the reader can ascertain the meaning of these provisions without needing to separately consult the relevant substituted reference order. Accordingly it serves to enhance the transparency and usability of the relevant legislation.83

Part 2 of Schedule 3 contains transitional, saving and application provisions (items 4 and 5) which ensure the validity of things done before the commencement of the amendments.

The amendments in Part 1 and Part 2 of Schedule 3 commence 28 days after Royal Assent.84 This is consistent with the general principle for the commencement of statute law revision amendments set out in Drafting Direction No. 4.4 (as discussed above in relation to Schedule 1 to the Bill).

Schedules 4 and 5—Repeals Schedule 4 provides for the repeal of spent and obsolete provisions of two Acts:

• spent provisions of the International Labor Organisation (Compliance with Conventions) Act 1992 which made amendments to other Acts85 and

• provisions of the National Health Act 1953 which authorised the making of, and supported the implementation of or otherwise relied upon, a Ministerial determination that was subject to a statutory sunset clause and ceased to have force in 2010.86

Schedule 5 repeals the Forestry Marketing and Research and Development Services (Transitional and Consequential Provisions) Act 2007 (FMRDS (TCP) Act), which is spent because the amendments it made happened upon the commencement of the relevant amending provisions.87 Section 7 of the Acts Interpretation Act will operate to ensure that the repeal of the amending Act does not affect the principal Act as amended. Item 2 of Schedule 5 to the Bill also enacts a saving provision to ensure that the repeal of the amending Act will not affect the continuing operation of any application, saving or transitional provision made by the amending Act.88

80. These circumstances are set out in subsection 19B(1) of the Acts Interpretation Act. 81. Schedule 3, Part 1, items 1-3. (In particular, these measures propose to amend paragraph 9(1)(e) of the Public Lending Right Act, which prescribes the membership of a ‘public lending right committee’ which determines the eligibility of claimants and approves payments under the scheme. Currently, paragraph 9(1)(e) provides that the Committee must include a member who is an officer of the Attorney-General’s

Department, as nominated by the Attorney-General. The amendments in Part 1 of Schedule 3 to the Bill reflect the Administrative Arrangements Order of 30 September 2015, which transferred portfolio responsibility for copyright to the Communications Minister (at p. 9). 82. Acts Interpretation (Substituted References--Section 19BA) Amendment Order 2015 (No 1), Schedule 1, amending items 2 and 3 (per item 3 in column 1 of each table). This order amended the Acts Interpretation (Substituted References--Section 19BA) Order 2004, Schedule 1, Part 5

and Schedule 2, Part 3 (per item 3 in column 1 of each table). 83. For completeness, the identification of the relevant responsible Minister and department via a reference to a particular statute (in this case, the Copyright Act) is consistent with Commonwealth drafting practice with respect to references to Ministers. See: OPC, Drafting direction

no. 2.2—use of various expressions in draft legislation, document release 5.5, reissued May 2016, pp. 15-16. 84. Clause 2 (per item 7 in column 1 of the table). 85. Item 1. (Note that section 7 of the Acts Interpretation Act 1901 (AIA) provides that the repeal of the amending provisions does not affect the

amendment it made to the principal Act.) 86. Items 2-4. 87. Item 1. 88. In effect, item 2 of Schedule 5 to the Bill applies an equivalent protection to that in section 7 of the AIA to the application, saving and

transitional provisions in the FMRDS (TCP) Act that did not amend a principal Act and are therefore not covered by section 7 of the AIA.

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. Statute Law Revision (Spring 2016) Bill 2016 11

The proposed amendments in Schedules 4 and 5 commence 28 days after Royal Assent, which is consistent with the general principle outlined in Drafting Direction No. 4.4 (as discussed under Schedule 1 above).

By way of a general observation about the need for amendments of the kind proposed to be made by Schedules 4 and 5 to the Bill, there is no provision in Commonwealth ‘adjectival laws’ such as the Legislation Act for the automatic repeal of amending Acts. Hence, they remain on the statute book unless and until they are repealed by another Act, such as a statute law revision Act89 or a dedicated Act for the ‘bulk repeal’ of amending legislation.90 This stands in contrast to the provisions in the Legislation Act for the automatic repeal of legislative instruments.91 It also stands in contrast to the arrangements adopted in other Australian jurisdictions, including the ACT92 and Queensland,93 which have enacted legislation that automatically repeals their respective amending Acts, once those Acts have fulfilled their purpose.

Improving transparency in decision-making about mechanisms for making editorial changes

Areas of uncertainty and limited transparency It is not entirely clear in which circumstances FPC will determine to exercise his or her power under section 15V of the Legislation Act to make editorial corrections to the text of an Act, and when he or she will recommend that to the Government that measures should be included in a statute law revision Bill, or in a Bill of another kind.

OPC’s Drafting Direction No. 4.4 provides some guidance by identifying the types of editorial changes that FPC considers will most commonly be made using the editorial correction power in section 15V. It also identifies some changes that should normally be made via statute law revision (or other) legislation. However, several types of editorial changes could potentially be made via either mechanism, and the Drafting Direction does not provide information about how decisions are to be made in these circumstances.

While there is an understandable need to ensure that FPC has flexibility in exercising his or her discretion about the use of section 15V in particular cases, there seems to be some uncertainty about how the general approach outlined in the Direction will be applied in practice. This may risk creating a perception of inconsistency or arbitrariness in decision-making.

For example, several error correction measures in Schedules 1 and 2 to the present Bill appear to be editorial changes covered by section 15X that could be made via section 15V. Several of these measures also appear to be changes of the kind contemplated by the Direction as being those that will most commonly be made using FPC’s power in section 15V. These include proposed amendments fixing incorrect cross-references to other provisions and citations of the short-titles of other Acts, typographical and grammatical errors (such as incorrect spelling, capitalisation and repeated words) and numbering errors.

The Explanatory Memorandum does not explain why these measures were dealt with as proposed statute law revision amendments, and were evidently not considered to be appropriate for editorial changes under section 15V. Further, the reports OPC has issued about FPC’s use of the editorial changes power in section 15V indicate that this power has been used to make changes to other Acts, which are of a similar kind to the changes proposed in the Bill.94 In the abstract, it seems difficult to reconcile the different approaches taken to apparently similar types of amendments. The reasons for this differential treatment are not immediately apparent on the face of the relevant provisions, or from the nature of the subject matter regulated by the relevant Acts.

89. Schedule 5 of the present Bill is one such example. 90. For example, the Amending Acts 1901 to 1969 Repeal Act 2014; Amending Acts 1970 to 1979 Repeal Act 2015; Amending Acts 1980 to 1989 Repeal Act; and Amending Acts 1990 to 1999 Repeal Act 2016. 91. Legislation Act, Chapter 3, Part 3, Division 1. 92. Legislation Act 2001 (ACT), section 89. 93. Acts Interpretation Act 1954 (Qld), section 22C. 94. OPC, Editorial changes reports no 1 and no 2, op cit. These reports record 76 corrections to a total of 40 compilations (from 5 March to

11 August 2016). Such changes relate to matters including: changes to punctuation, giving effect to misdescribed amendments as intended, updating cross-references, renumbering provisions, removing redundant text, correcting typographical errors and changing spelling. The highest proportion of corrections relate to misdescribed amendments, punctuation, renumbering and typographical errors.

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. Statute Law Revision (Spring 2016) Bill 2016 12

Opportunity for improvement It would be beneficial if explanatory memoranda accompanying future statute law revision Bills contained a brief explanation of why the proposed amendments were not considered suitable for editorial changes under section 15V of the Legislation Act, where they fall within the definition of an ‘editorial change’ in section 15X of that Act. The inclusion of information about the approach taken to selecting the appropriate vehicle for making editorial changes in such circumstances could help strengthen transparency and Parliamentary oversight.

This could help build a common understanding (and potentially consensus) about the circumstances in which a measure is considered appropriate for Parliamentary approval via a statute law revision Bill; and the circumstances in which a measure is more appropriately dealt with as an editorial change under the Legislation Act. Over time, the accumulation of explanatory memoranda documenting such reasoning could provide Parliament with an even stronger assurance about the consistency and soundness of executive decision-making in selecting the mechanism by which editorial changes, including error corrections, are made.

This information could usefully contribute to an evidence base for evaluating the operation of section 15V of the Legislation Act. This may help inform the statutory review of the Legislation Act, which is required to commence in 2021.95 It may also help inform the Parliament’s future consideration of any proposed amendments to Chapter 2 of the Legislation Act, which may arise from, or independently to, the statutory review.

Concluding comments Statute law revision Bills are an established feature of Commonwealth legislative practice. They contribute to the continuous improvement of the accuracy and useability of Commonwealth legislation.

All of the measures in the Bill appear to be consistent with established legal policy requirements governing the use of statute law revision Bills, including the expectation that such Bills should only contain measures that do not change the legal substance or effect of the provisions they propose to amend.

In particular, the error correction measures contained in the Bill appear to go no further than giving explicit effect to the settled approach to interpreting provisions which contain obvious drafting errors, in accordance with general principles of statutory interpretation.96

There is, however, one relatively minor issue that could withstand improvement. The evidently formulaic approach taken to the drafting of explanatory memoranda accompanying statute law revision Bills could usefully be updated to reflect the commencement of the 2015 ‘framework amendments’ to the Legislation Act. It would be useful if future explanatory memoranda could indicate the reasons that the particular editorial changes proposed in the Bill (including error correction measures) were considered appropriate for inclusion in a statute law revision Bill, rather than being dealt with under Chapter 2 of the Legislation Act.

95. Legislation Act, section 59. (This section provides that the Attorney-General must appoint persons to a body to review the operation of the Act during the three months starting on the fifth anniversary of the amendments enacted by the Framework Reform Act.) 96. As explained above, a court would likely read a provision containing an apparent drafting or printing error in its correct form, in order to avoid a manifestly absurd interpretation, or to give effect to the interpretation that best achieves the purpose or object of the Act.

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. Statute Law Revision (Spring 2016) Bill 2016 13

© Commonwealth of Australia

Creative Commons

With the exception of the Commonwealth Coat of Arms, and to the extent that copyright subsists in a third party, this publication, its logo and front page design are licensed under a Creative Commons Attribution-NonCommercial-NoDerivs 3.0 Australia licence.

In essence, you are free to copy and communicate this work in its current form for all non-commercial purposes, as long as you attribute the work to the author and abide by the other licence terms. The work cannot be adapted or modified in any way. Content from this publication should be attributed in the following way: Author(s), Title of publication, Series Name and No, Publisher, Date.

To the extent that copyright subsists in third party quotes it remains with the original owner and permission may be required to reuse the material.

Inquiries regarding the licence and any use of the publication are welcome to webmanager@aph.gov.au.

Disclaimer: Bills Digests are prepared to support the work of the Australian Parliament. They are produced under time and resource constraints and aim to be available in time for debate in the Chambers. The views expressed in Bills Digests do not reflect an official position of the Australian Parliamentary Library, nor do they constitute professional legal opinion. Bills Digests reflect the relevant legislation as introduced and do not canvass subsequent amendments or developments. Other sources should be consulted to determine the official status of the Bill.

Any concerns or complaints should be directed to the Parliamentary Librarian. Parliamentary Library staff are available to discuss the contents of publications with Senators and Members and their staff. To access this service, clients may contact the author or the Library’s Central Enquiry Point for referral.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2500.