2016 2017 2018 THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA HOUSE OF REPRESENTATIVES LEGISLATION AMENDMENT (SUNSETTING REVIEW AND OTHER MEASURES) BILL 2018 EXPLANATORY MEMORANDUM (Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)
LEGISLATION AMENDMENT (SUNSETTING REVIEW AND OTHER MEASURES) BILL 2018 GENERAL OUTLINE 1. This Bill makes amendments to various Acts, including the Legislation Act 2003 ( Legislation Act ) and the Acts Interpretation Act 1901 ( Acts Interpretation Act ), to implement those recommendations of the Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003 ( Sunsetting Review Report ) that require legislative action. 2. This Bill also makes other minor and technical amendments to the Legislation Act and the Acts Interpretation Act to clarify their operation and resolve inconsistencies between provisions. 3. The purpose of the sunsetting framework, as provided under section 49 of the Legislation Act, is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed. Its operation ensures that legislative instruments (subject to some exceptions) are reviewed at least every 10 years to determine whether they are fit-for-purpose and should be remade, or are redundant and can be repealed. Sunsetting is an important mechanism for reducing red tape, delivering clearer laws and aligning existing legislation with current government policy. 4. The Sunsetting Review Report was the outcome of a review undertaken in accordance with section 60 of the Legislation Act, which requires the Attorney-General to appoint persons to a body to review the operation of the sunsetting framework set out in Part 4 of Chapter 3 of that Act. In March 2017, the then Attorney-General appointed three senior Commonwealth officials to a Committee to conduct that review ( Committee ). 5. The Committee found that the sunsetting framework is, in general, fulfilling its stated purpose, and recommended that the framework should not be extended to primary legislation and that the 10-year sunsetting period should be maintained. The Committee made 45 recommendations, which are set out in the Sunsetting Review Report, aimed at improving and streamlining the operation of the sunsetting framework and related provisions of the Legislation Act. The Sunsetting Review Report was tabled in the House of Representatives on 23 October 2017 and in the Senate on 13 November 2017. 6. In preparing the Sunsetting Review Report, the Committee consulted with and considered the views of a broad range of stakeholders. A Consultation Paper was made publicly available and the Committee invited both government and non-government stakeholders to provide submissions. In total, the Committee received 25 submissions to the Consultation Paper. 7. A number of stakeholders were also consulted in the development of this Bill. The Office of Parliamentary Counsel was consulted on all aspects of this Bill. The Department of the Prime Minister and Cabinet and the Clerks of the House of Representatives and of the Senate were consulted on the definition of sitting day for the purposes of the disallowance provisions of the Legislation Act and provisions relating to parliamentary scrutiny including the First Parliamentary Counsel s rectification power. The Criminal Law Section and the Human Rights Unit of the Attorney-General s Department were also consulted on the Statement of Compatibility with Human Rights. 8. Schedule 1 makes amendments to various Acts to, primarily, implement the recommendations of the Sunsetting Review Report that can only be achieved by legislative change. These amendments: 2
broaden the scope of the Attorney-General s discretion to issue certificates of deferral of sunsetting and declarations of alignment of sunsetting, and provide for greater parliamentary scrutiny of the exercise of these discretions remove the time restriction on Parliament s power to roll over the sunsetting date of a legislative instrument provide that rules of court are not subject to the sunsetting framework clarify that references to intergovernmental bodies or schemes include those involving the Commonwealth and one or more Territories define the meaning of sitting day as it applies to the disallowance provisions of the Legislation Act and in any other Act clarify the interaction between the disallowance, tabling and automatic repeal provisions of the Legislation Act, and makes minor amendments to a number of provisions to better reflect current drafting practice. 9. Schedule 2 makes minor and technical amendments to the Legislation Act and Acts Interpretation Act to clarify the operation of those Acts, resolve inconsistencies between provisions, and simplify language. In particular, these amendments clarify: that a legislative or notifiable instrument can commence before the instrument is registered despite any rule or principle of common law that a legislative or notifiable instrument may apply, adopt or incorporate a version of another instrument or writing that may not be the version that is actually in force when the legislative or notifiable instrument commences, but was in force at some time prior to that commencement the limits of the First Parliamentary Counsel s power to rectify an error on the Federal Register of Legislation and the application of the parliamentary scrutiny mechanisms to instruments that have been rectified under this power, and that, where an Act refers to a provision of another Act or State or Territory law, and that provision is repealed and re-enacted, a reference to the repealed provision extends to the re-enacted provision even if it is differently numbered. FINANCIAL IMPACT 10. This Bill does not have a financial impact. 3
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018 11. This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. 12. An overview of measures in the Bill and their human rights implications are below. Overview of the Bill 13. Section 60 of the Legislation Act 2003 ( Legislation Act ) requires the Attorney-General to appoint persons to a body to review the operation of the sunsetting framework set out in Part 4 of Chapter 3 of that Act. In March 2017, the then Attorney-General appointed three senior Commonwealth officials to a body ( Committee ) to conduct that review. The final report of the Committee, Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003 ( Sunsetting Review Report ), was tabled in both Houses of Parliament in late 2017. 14. The purpose of the sunsetting framework, as provided under section 49 of the Legislation Act, is to ensure that legislative instruments are kept up to date and only remain in force for as long as they are needed. Its operation ensures that legislative instruments (subject to some exceptions) are reviewed approximately 10 years after registration to determine whether they are fit-for-purpose and should be remade, or have become redundant and can be repealed. 15. Schedule 1 primarily implements the recommendations of the Sunsetting Review Report that can only be achieved by legislative amendment. In particular, Schedule 1: broadens the scope of the Attorney-General s discretion to issue certificates of deferral of sunsetting and declarations of alignment of sunsetting, and provides for greater parliamentary scrutiny of the exercise of these discretions provides that rules of court are not subject to the sunsetting framework removes the time restriction on Parliament s power to roll over the sunsetting date of a legislative instrument clarifies that references to intergovernmental bodies or schemes include those involving the Commonwealth and one or more Territories defines the meaning of sitting day as it applies to the disallowance provisions of the Legislation Act and in any other Act clarifies the interaction between the disallowance, tabling and automatic repeal provisions of the Legislation Act, and makes minor amendments to a number of provisions to better reflect current drafting practice. 16. Schedule 2 makes amendments to the Legislation Act and Acts Interpretation Act 1901 ( Acts Interpretation Act ) that clarify the operation of those Acts, resolve inconsistencies between provisions, and simplify language. In particular, Schedule 2 clarifies: 4
that a legislative or notifiable instrument can commence before the instrument is registered, despite any rule or principle of common law that a legislative or notifiable instrument may apply, adopt or incorporate a version of another instrument or writing that may not be the version that is actually in force when the legislative or notifiable instrument commences, but was in force at some time prior to that commencement the limits of the First Parliamentary Counsel s power to rectify an error on the Federal Register of Legislation and the application of the parliamentary scrutiny mechanisms to instruments that have been rectified under this power, and that, where an Act refers to a provision of another Act or State or Territory law, and that provision is repealed and re-enacted, a reference to the repealed provision extends to the re-enacted provision even if it is differently numbered. Human rights implications Prohibition on retrospective criminal laws 17. Article 15 of the International Convention on Civil and Political Rights creates a prohibition on retrospective criminal laws. This right provides that laws must not impose liability for acts that were not criminal offences at the time they were committed. This flows from the principle that the criminal law should be sufficiently precise to enable persons to know in advance whether their conduct would be criminal. 18. The Legislation Act is an Act of general application that applies to subordinate legislation including legislative instruments and notifiable instruments. New subsection 12(1A) Retrospective commencement and application of legislative instruments and notifiable instruments 19. The Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers ( Guide ) generally discourages authorising subordinate legislation to impose criminal offences. Further, the Guide recommends that, where there is a demonstrated need to delegate offence content to subordinate legislation, it should be delegated to regulations (rather than other kinds of subordinate instruments) and accompanied by appropriate safeguards. Regulations that contain offences should not be authorised to impose fines exceeding 50 penalty units for an individual and 250 penalty units for a body corporate. 20. New subsection 12(1A) of the Legislation Act, as inserted by item 5 of Schedule 2, clarifies that a legislative instrument or notifiable instrument may provide that the instrument or a provision of the instrument can commence retrospectively, despite any principle or rule of common law. This is a provision of general application that would include legislative instruments containing offence provisions. However, while the operation of new subsection 12(1A) opens up the possibility that an instrument that prescribes a Commonwealth criminal offence may commence retrospectively, there are safeguards in place to prevent this from occurring. 21. Subsection 12(2) of the Legislation Act acts as a safeguard on the operation of new subsection 12(1A) by displacing the retrospective commencement of a legislative instrument or notifiable instrument to the extent that the retrospective operation would negatively affect the rights of, or impose liabilities on, a person other than the Commonwealth. This prevents an instrument from 5
retrospectively imposing a criminal sanction on an act that was not a criminal offence at the time it was committed. 22. Item 6 of Schedule 2 makes minor amendments to subsection 12(2) that are consequential to the insertion of new subsection 12(1A) and do not change its substance. 23. Subsection 12(4) of the Legislation Act provides that the prohibition on retrospective laws prescribed by subsection 12(2) can only be overridden by express provision in an Act. As a consequence, any Act that purports to allow retrospective criminal laws by displacing subsection 12(2) will be subject to parliamentary oversight and scrutiny. The human rights impact of those Acts will be individually assessed, including through the requirement to prepare Statements of Compatibility with Human Rights. Any subordinate legislation made under those Acts that impose retrospective criminal sanctions will also be subject to parliamentary scrutiny through the disallowance process. 24. Items 7 and 8 of Schedule 2 make minor amendments to subsection 12(4) that are consequential to the insertion of new subsection 12(1A) and do not change its substance. New sections 15D and 15DA Rectification of the Federal Register of Legislation 25. New section 15D of the Legislation Act provides that if the First Parliamentary Counsel becomes aware that the Register contains certain kinds of errors, the First Parliamentary Counsel must arrange for the Register to be altered to rectify the error as soon as possible. 26. The kinds of errors covered by that section are the following: the text of an Act as it appears in the Register is not the same as the text of the Act as assented to the text of a legislative instrument or notifiable instrument as it appears in the Register is not the same as the text of the instrument as made by the rule-maker a compilation as it appears in the Register does not represent the state of the law that it purports to represent, or the text of any other document on the Register as it appears in the Register is not the same as the text of the original document. 27. One result of section 15D is to allow an error on the Register to be rectified where the text of the instrument lodged for registration on the Register is not the same text as made by the rule-maker, without requiring the rule-maker to repeal and remake the instrument. 28. Legislative instruments are required by section 38 of the Legislation Act to be tabled in each House of the Parliament within six sitting days of registration. The instrument can then be disallowed under section 42 of the Legislation Act if a notice of motion to disallow is moved within 15 sitting days of tabling, and that motion is passed within 15 sitting days of the giving of the notice. 29. Where the First Parliamentary Counsel exercises the rectification power under new section 15D in relation to a legislative instrument that was previously registered (the originally tabled version ), it is replaced by another version (the correct version ). In relation to disallowable legislative instruments, new section 15DA requires that, if the originally tabled version had been laid before either House of the Parliament, then the correct version must be tabled again in each House of the Parliament and is subject to a new period of disallowance that commences on the day it is tabled 6
(unless the originally tabled version had already been disallowed in full). The requirement for a new disallowance period does not otherwise affect the time at which the instrument is registered. 30. As such, if the commencement of the instrument is expressed to commence on the day after registration, the correct version is taken to have commenced on the day after the registration of the originally tabled version (see note to subsection 15D(4)), even if the correct version was tabled at a time after that day. It is therefore possible that new section 15D could operate to allow an instrument that includes a Commonwealth criminal offence to commence retrospectively if, as a result of administrative error, the offence provisions were omitted from the originally tabled version. 31. New subsection 15D(3) acts as a safeguard on the operation of section 15D by providing that any rectification made in the exercise of this power does not affect any right or privilege that was acquired or accrued, nor impose or increase any obligation or liability that was incurred, in reliance on the originally tabled version. 32. New subsection 15D(3) is therefore consistent with the prohibition on retrospective criminal laws by ensuring that, if an administrative error resulted in the omission of an offence provision from the originally tabled version that was later tabled in Parliament in the correct version, a person would not be subject to criminal sanctions for doing an act that would have otherwise triggered that provision in the period between the registration of the originally tabled version and the tabling of the correct version. This ensures that legislative instruments do not, as a result of administrative error, impose liability for acts that were not criminal offences at the time they were committed. Conclusion 33. This Bill is compatible with the human rights and freedoms listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 by promoting the prohibition on retrospective criminal laws, and ensuring that any proposal to retrospectively impose a criminal liability will be subject to parliamentary oversight and scrutiny. 7
NOTES ON CLAUSES Preliminary Clause 1 Short title 34. This clause provides for the short title of the Act to be the Legislation Amendment (Sunsetting Review and Other Measures) Act 2018. Clause 2 Commencement 35. This clause provides for the commencement of each provision in the Act, as set out in the table. 36. Item 1 in the table provides that sections 1 to 3, which concern the formal aspects of the Act, as well as anything in the Act not elsewhere covered by the table, will commence on the day on which the Act receives Royal Assent. 37. Item 2 in the table provides that Schedule 1 will commence on the day after the Act receives Royal Assent. 38. Item 3 in the table provides that Division 1 of Part 1 of Schedule 2 will commence on the day after the Act receives Royal Assent. 39. Item 4 in the table provides that Division 2 of Part 1 of Schedule 2 will commence on a single day to be fixed by Proclamation, or on the day after the end of 6 months beginning on the day the Act receives Royal Assent, whichever occurs earlier. This is to allow sufficient time for administrative and system changes to be made before the amendments take effect. 40. Item 5 in the table provides that Part 2 of Schedule 2 will commence on the day after the Act receives Royal Assent. 41. Item 6 in the table provides that Part 3 of Schedule 2 will commence on the day after the Act receives Royal Assent, unless Schedule 1 to the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 (the Espionage and Foreign Interference Act) commences on or before that time. This is because item 4 of Schedule 1 to the Espionage and Foreign Interference Act repeals the provision of the Criminal Code Act 1995 amended by Part 3 of Schedule 2. Clause 3 Schedules 42. Clause 3 provides that legislation specified in a Schedule to the Act is amended or repealed as set out in the applicable items in the Schedule and any other item in a Schedule has effect according to its terms. This is a technical provision to give operational effect to the amendments contained in the Schedules. 8
Schedule 1 Sunsetting review Acts Interpretation Act 1901 Item 1 Section 2B 43. Section 2B of the Acts Interpretation Act sets out definitions that are relevant to the operation of the Acts Interpretation Act. This item inserts a new definition of sitting day into section 2B, which will be defined by reference to new section 2M (inserted by item 2 of Schedule 1). Item 2 Definition of sitting day 44. This item inserts new section 2M into the Acts Interpretation Act to provide a definition of sitting day. This reflects recommendation 45 of the Sunsetting Review Report. 45. New subsection 2M(1) provides that a sitting day, in relation to a House of the Parliament, is a day on which that House actually sits. 46. New subsection 2M(2) provides that, if a House sits without adjourning on a previous day, the period during which the House continues to sit, with or without a suspension, on a later day is taken to be part of that previous day. This includes adjournments in the normal course of the business of each House. 47. In addition to the examples set out under subsection 2M(2), further examples of how new section 2M would operate in practice are set out below. The Senate begins sitting at 9 am on Thursday and extends (with or without a suspension of the sitting) until it is adjourned at 3 pm on Saturday. The period from 9 am Thursday to 3 pm Saturday is a single sitting day for the Senate. The House of Representatives begins sitting at 9 am on Wednesday and extends (with or without a suspension of the sitting) until it is adjourned at 1 am on Thursday. The House of Representatives then starts sitting again at 10 am on Thursday and adjourns at 3 pm on Thursday. The period from 9 am Wednesday to 1 am Thursday is a single sitting day for the House of Representatives. The period from 10 am Thursday until 3 pm Thursday is a separate sitting day for the House of Representatives. The House of Representatives begins sitting at 9 am on Thursday and is adjourned at 1 pm the same day. The House of Representatives then starts sitting again at 3 pm on same day and adjourns again at 6 pm that day. The period from 9 am Thursday to 6 pm Thursday is a single sitting day for the House of Representatives. The Senate begins sitting at 9 am on Wednesday and extends (with or without a suspension of the sitting) until it is adjourned at 1 am on Thursday. The Senate then starts sitting again at 10 am on Thursday and adjourns at 1 am on Friday. The period from 9 am Wednesday to 1 am Thursday is a single sitting day for the Senate. The period from 10 am on Thursday until 1 am on Friday is a separate sitting day for the Senate. 48. New subsection 2M(3) provides that for the purposes of this section, a House is taken to have adjourned if the Parliament is prorogued, that House is dissolved, or that House (if it is the House of Representatives) expires. The purpose of new subsection 2M(3) is to clarify the circumstances in which a House is also taken to have adjourned, in addition to the ordinary concept of adjournment. 9
Item 3 Subparagraph 46AA(1)(a)(ii) 49. This item omits the word or from subparagraph 46AA(1)(a)(ii) of the Acts Interpretation Act to reflect the insertion of new subparagraph 46AA(1)(a)(iii) by item 4 of Schedule 1. Item 4 At the end of paragraph 46AA(1)(a) 50. Section 46AA of the Acts Interpretation Act provides for an instrument, other than a legislative instrument, a notifiable instrument or a rule of court, to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. This section also allows instruments to apply, adopt or incorporate any matter contained in any other material in the form that exists at the time the instrument commences. 51. Section 46AA ensures that only legislation that has been scrutinised by the Parliament can be incorporated in a form that may vary from time to time. Since the Federal Register of Legislation provides an authoritative source of all Acts and legislative instruments, section 46AA is also consistent with the general principle of access to justice that materials incorporated by reference in legislation should be freely accessible to the public. 52. This item inserts new subparagraph 46AA(1)(a)(iii) to clarify that an instrument may apply, adopt or incorporate the provisions of rules of court as in force at a particular time or as in force from time to time. 53. This amendment is consequential to the amendments made by items 6 to 21 of Schedule 1, which provide that rules of court (which are not legislative instruments) are exempt from the sunsetting framework in Part 4 of Chapter 3 of the Legislation Act but remain subject to the other requirements of that Act, including registration, publication and disallowance. This amendment ensures that section 46AA applies to rules of court in the same way as any other disallowable legislative instrument by allowing instruments to incorporate provisions of rules of court in the same way as provisions of a disallowable legislative instrument. 54. The amendment made by this item is consistent with amendments made to section 14 of the Legislation Act by items 23 and 24 of Schedule 1 that deal with incorporation of material in legislative instruments and notifiable instruments. Item 5 Application provision 55. This item contains an application provision for item 4 of Schedule 1, with the effect that the amendment to section 46AA of the Acts Interpretation Act applies to instruments made on or after the commencement of this item (even if the enabling provision for the instrument exists at commencement). This ensures the amendment does not apply retrospectively. Items 6 to 21 Amendments to the Family Law Act 1975, the Federal Circuit Court of Australia Act 1999, the Federal Court of Australia Act 1976 and the Judiciary Act 1903 56. Recommendations 34 and 35 of the Sunsetting Review Report are that rules of court should not be subject to sunsetting, but should be subject to the registration and publication requirements of the Legislation Act. 10
57. Paragraph 8(8)(d) of the Legislation Act provides that rules of court are not legislative instruments. As such, the default position is that rules of court are not subject to any of the provisions of the Legislation Act. 58. However, certain provisions of the enabling legislation of each federal court (together, the Federal Court Acts) provide that the Legislation Act other than section 8 (which defines legislative instrument ), section 9 (which provides that no inference of legislative character can be drawn from whether an instrument is a legislative instrument), section 10 (which declares certain classes of instruments to be legislative instruments), and section 16 (which requires the First Parliamentary Counsel to cause steps to be taken to promote high drafting standards) applies to rules made by the federal courts as if they were legislative instruments. These provisions are: subsection 86(2) of the Judiciary Act 1903 ( Judiciary Act ), for rules made by the High Court of Australia subsection 59(4) of the Federal Court of Australia Act 1976 ( FCA Act ), for rules made by the Federal Court of Australia section 26E and subsections 37A(14) and 123(2) of the Family Law Act 1975 ( Family Law Act ), for rules made by the Family Court of Australia, and subsection 81(3) of the Federal Circuit Court of Australia Act 1999 ( FCCA Act ), for rules made by the Federal Circuit Court of Australia. 59. As such, despite paragraph 8(8)(d) of the Legislation Act, rules made by each of the federal courts are subject to the provisions of the Legislation Act, including the sunsetting framework. 60. Items 6 to 21 of Schedule 1 amend the aforementioned provisions of the Federal Court Acts to ensure that rules made by each of the federal courts are not subject to the sunsetting framework set out in Part 4 of Chapter 3 of the Legislation Act, but continue to be subject to the remaining aspects of the Legislation Act, including the registration and publication requirements in Chapter 2. This reflects recommendations 34 and 35 of the Sunsetting Review Report. 61. The purpose of the sunsetting framework, as set out in section 49 of the Legislation Act, is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed. Rules of court already undergo constant and detailed scrutiny and review by subject area experts, frequently with the benefit of argument by external subject area experts. Decisions about the operation of those rules in individual circumstances are often published publicly and are sometimes subject to judicial review or appeal. As such, it would not be inappropriate to exempt rules of court from the operation of the sunsetting framework, as there are already numerous mechanisms in place to ensure that they remain fit-for-purpose, relevant and required. 62. It is appropriate that rules of court remain subject to the registration and publication requirements of the Legislation Act. This means that rules of court, their accompanying explanatory statements, and any compilations of the rules will continue to be registered and published on the Federal Register of Legislation. This promotes access to justice by ensuring that an authoritative record of rules of court will continue to be freely accessible to the public from a central repository. 63. Details about each of items 6 to 21 of Schedule 1 are set out in the following paragraphs. 11
Family Law Act 1975 Item 6 Section 26E 64. Section 26E of the Family Law Act provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made under sections 26B and 26C of the Family Law Act. 65. This item amends section 26E to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made under sections 26B and 26C. Item 7 Paragraph 26E(a) 66. This item amends paragraph 26E(a) of the Family Law Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made under sections 26B and 26C, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act. 67. Subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act provide for legislative and notifiable instruments to make provision in relation to a matter by applying, adopting or incorporating the provisions of a disallowable legislative instrument at a particular time or as in force from time to time. 68. The effect of this item is to clarify that a rule of court made under sections 26B and 26C can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time. As legislative instruments are required to be registered and published on the Federal Register of Legislation, this item is consistent with the general principle that materials incorporated by reference should be freely accessible to the public. Item 8 Subsection 37A(14) 69. Section 37A of the Family Law Act provides for the Judges to make rules of court delegating to the Registrars all or any of the powers of the Court. Subsection 37A(14) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made under section 37A. 70. This item amends subsection 37A(14) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made under section 37A. Item 9 Paragraph 37A(14)(a) 71. This item amends paragraph 37A(14)(a) of the Family Law Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made under section 37A, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act. 72. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made under section 37A can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time. 12
Item 10 Subsection 123(2) 73. Section 123 of the Family Law Act provides for the Judges to make rules of court relating to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under the Family Law Act. Subsection 123(2) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under section 123 or any other Act. 74. This item amends subsection 123(2) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court. Item 11 Paragraph 123(2)(a) 75. This item amends paragraph 123(2)(a) of the Family Law Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made under section 123, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act. 76. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time. Item 12 Application provision 77. This item contains an application provision for items 6 to 11 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report. Federal Circuit Court of Australia Act 1999 Item 13 Subsection 81(3) 78. Section 81 of the FCCA Act provides for the Judges to make rules of court relating to the practice and procedure to be followed in the Court, and prescribing any other matters required or permitted to be prescribed. Subsection 81(3) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under the FCCA Act or another Act. 79. This item amends subsection 81(3) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court under the FCCA Act or another Act. Item 14 Paragraph 81(3)(a) 80. This item amends paragraph 81(3)(a) of the FCCA Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made by the Court, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act. 13
81. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time. Item 15 Application provision 82. This item contains an application provision for items 13 and 14 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report. Federal Court of Australia Act 1976 Item 16 Subsection 59(4) 83. Section 59 of the FCA Act provides for the Judges to make rules of court relating to the practice and procedure to be followed in the Court, and any other matter necessary or convenient to be prescribed for the conduct of any business of the Court. Subsection 59(4) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under the FCA Act or another Act. 84. This item amends subsection 59(4) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court under the FCA Act or another Act. Item 17 Paragraph 59(4)(a) 85. This item amends paragraph 59(4)(a) of the FCA Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made by the Court, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act. 86. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time. Item 18 Application provision 87. This item contains an application provision for items 16 and 17 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report. 14
Judiciary Act 1903 Item 19 Subsection 86(2) 88. Section 86 of the Judiciary Act provides for the Justices to make rules of court necessary or convenient to be made for carrying into effect the provisions of the Judiciary Act or so much of the provisions of any other Act as confers jurisdiction on the High Court, or that relate to the practice or procedure of the High Court. Subsection 86(2) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under the Judiciary Act or another Act. 89. This item amends subsection 86(2) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court under the Judiciary Act or another Act. Item 20 Paragraph 86(2)(a) 90. This item amends paragraph 86(2)(a) of the Judiciary Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made by the Court, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act. 91. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time. Item 21 Application provision 92. This item contains an application provision for items 19 and 20 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report. Legislation Act 2003 Item 22 Section 3A 93. Section 3A of the Legislation Act sets out a simplified outline of the key elements of the Legislation Act. 94. This item amends section 3A by omitting the phrase after their commencement. This reflects the amendments made to the automatic repeal provisions in Division 1 of Part 3 of Chapter 3 by items 42 to 60 of Schedule 1. Item 23 Subparagraph 14(1)(a)(ii) 95. This item omits the word or from subparagraph 14(1)(a)(ii) of the Legislation Act to reflect the insertion of new subparagraph 14(1)(a)(iii) by item 24 of Schedule 1. 15
Item 24 At the end of paragraph 14(1)(a) 96. Section 14 of the Legislation Act provides for a legislative instrument or a notifiable instrument to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. This section also allows instruments to apply, adopt or incorporate any matter contained in any other material in the form that exists at the time the instrument commences. 97. Section 14 ensures that only legislation that has been scrutinised by Parliament can be incorporated in a form that may vary from time to time. Since the Federal Register of Legislation provides an authoritative source of all Acts and legislative instruments, section 14 is also consistent with the general principle of access to justice that materials incorporated by reference in legislation should be freely accessible to the public. 98. This item inserts new paragraph 14(1)(a)(iii) to clarify that a legislative or notifiable instrument may apply, adopt or incorporate the provisions of rules of court as in force at a particular time or as in force from time to time. 99. This item is intended to remove any doubt that section 14 applies to rules of court in the same way as it does to any other disallowable legislative instrument by explicitly providing that legislative and notifiable instruments can apply, adopt or incorporate a rule of court or a provision of a rule of court as in force at a particular time or from time to time. This is consequential to the amendments made by items 6 to 21 of Schedule 1, which provide that rules of court are exempt from the sunsetting framework in Part 4 of Chapter 3 of the Legislation Act but remain subject to the other requirements of that Act, including registration, publication and disallowance. 100. The amendment made by this item is consistent with amendments made to section 46AA(1)(b) of the Acts Interpretation Act by items 3 and 4 of Schedule 1 to this Bill that deal with incorporation of material in instruments that are not legislative instruments nor notifiable instruments. Item 25 Subsection 38(3) 101. Subsection 38(3) of the Legislation Act provides that a legislative instrument ceases to have effect if it is not laid before each House of the Parliament within six sitting days of registration. This item amends subsection 38(3) by replacing the phrase ceases to have effect with is repealed. 102. This amendment is intended to clarify that legislative instruments that have not been laid before Parliament in accordance with section 38 are removed from the statute book, rather than simply ceasing to have effect. This use of language is consistent with current drafting practice. Item 26 Subsection 38(3) (note) 103. This item repeals the Note under subsection 38(3) of the Legislation Act as a consequence of the repeal of subsection 45(1) by item 36 of Schedule 1. Items 27 to 33 Amendments to section 42 104. Section 42 of the Legislation Act provides for parliamentary scrutiny of legislative instruments by setting out the process by which a legislative instrument (or a provision thereof) is disallowed or deemed to have been disallowed. Specifically, subsections 42(1) and (2) provide that a legislative instrument is disallowed if: 16
a notice of a motion to disallow is moved within 15 sitting days of a House of the Parliament after the instrument was laid before that House, and either: the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision, within 15 sitting days of the giving of that notice, or the notice of motion is not withdrawn or otherwise dealt with at the end of 15 sitting days after it is given. 105. Subsection 42(3) deals with circumstances in which a notice of motion to disallow has been given in a House of the Parliament before the end of the 15 sitting day period, but the House of Representatives is dissolved or expires, or the Parliament is prorogued, before that notice of motion can be dealt with. 106. Items 27, 30 and 33 amend paragraphs 42(1)(a), (2)(b), (2)(a), (2)(b), (3)(a) and (3)(b) to insert the phrase beginning on the first sitting day after each reference to 15 sitting days of that House. The purpose of these amendments is to put beyond doubt when a 15 sitting day period commences after an instrument is laid before a House of the Parliament. These amendments are consistent with the current practice of the Parliament and the Executive in relation to the calculation of a period of sitting days. 107. Item 28 amends subsection 42(1) to replace the phrase then ceases to have effect with is repealed immediately after the passing of that resolution. This clarifies that a legislative instrument that is disallowed under subsection 42(1) is removed from the statute book immediately at the time the resolution is passed, rather than simply ceasing to have effect. This use of language is consistent with current drafting practice. 108. Item 31 amends subsection 42(2) to replace the phrase ceases at that time to have effect with is repealed at that time. This clarifies that a legislative instrument that is deemed to have been disallowed in accordance with subsection 42(2) is removed from the statute book, rather than simply ceasing to have effect. This use of language is consistent with current drafting practice. 109. Items 29 and 32 repeal the Notes under subsection 42(1) and (2) as a consequence of the repeal of subsection 45(1) by item 36 of Schedule 1. Item 34 Paragraph 44(1)(a) 110. Subsection 44(1) of the Legislation Act provides that a legislative instrument is not subject to disallowance if the enabling legislation for the instrument (other than the Corporations Act 2001): facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States; and authorises the instrument to be made by the body or for the purposes of the body or scheme. 111. Subsection 44(1) was inserted into the then-legislative Instruments Act 2003 in recognition of the argument that the Commonwealth Parliament should not be able to unilaterally disallow instruments that have been made for the purposes of a multi-jurisdictional body or scheme and would therefore affect jurisdictions other than the Commonwealth. 17
112. This item inserts the phrase or Territories into paragraph 44(1)(a) to clarify that subsection 44(1) also applies in relation to intergovernmental bodies or schemes involving the Commonwealth and one or more States or Territories. This reflects recommendation 36 of the Sunsetting Review Report. 113. Subsection 54(1) is set out in similar terms, and item 71 of this Schedule makes corresponding amendments to that provision. Items 35 to 38 Amendments to section 45 114. Section 45 of the Legislation Act provides that, where a legislative instrument ( repealing instrument ) or provision of a legislative instrument ( repealing provision ) wholly or partly repeals another legislative instrument or law ( affected instrument ), but the repealing instrument or repealing provision has itself ceased because of the operation of subsection 38(3) (where the instrument has not been laid before the Parliament as required) or subsections 42(1) or (2) (where the instrument has been disallowed), then the affected instrument or provision revives from the time of cessation. 115. Item 35 replaces the existing heading to section 45 of the Legislation Act with the new heading Reviving a legislative instrument, law or provision. This amendment clarifies the operation of section 45 and is consequential to the amendments made by items 36 to 38 of Schedule 1. 116. Item 36 repeals subsection 45(1), as its effect is already covered by subsection 45(2) (as amended by items 37 and 38 of Schedule 1). 117. Item 37 replaces current paragraph 45(2)(a) with a new paragraph 45(2)(a) to clarify that the effect of the operation of subsections 38(2), 42(1) and 42(2) is that the repealing instrument or repealing provision is repealed and therefore removed from the statute book, rather than merely ceasing to have effect. 118. In addition, the current reference to sections 48A and 48C in subparagraph 45(2)(a)(ii) does not exist in new paragraph 45(2)(a). This is consequential to the amendments of section 48A and 48C by items 42 to 54 of Schedule 1, which will mean that it is generally not possible for a repealing instrument or repealing provision to have already been repealed by sections 48A or 48C before it can be repealed by the operation of subsections 38(3), 42(1) or 42(2). 119. Item 38 amends subsection 45(2) to replace the phrase the repealed instrument, law or provision revived from the cessation time with the instrument, law or provision repealed by the repealing instrument or repealing provision revives from the repeal time. Similarly to item 37, this is intended to clarify that subsections 38(2), 42(1) and 42(2) operate to repeal an instrument or provision and therefore remove it from the statute book. 120. The amendments made by items 36, 37 and 38 are clarifying in nature only and do not change the substantive effect of section 45. Items 39 and 40 Section 47 121. Section 47 of the Legislation Act provides that if a notice of motion to disallow an instrument (or a provision thereof) has been given in a House of the Parliament within 15 sitting days after that instrument has been laid before that House, an instrument or provision that is the same in substance must not be remade unless certain conditions are met. 18
122. These items amend subsection 47(1) and paragraph 47(2)(b) to clarify that the 15 sitting day period commences on the first sitting day of a House after the instrument is laid before that House. As with the amendments made by items 27, 30 and 33 of Schedule 1, the purpose of these amendments is to put beyond doubt when a 15 sitting day period commences after an instrument is laid before a House of the Parliament. These amendments are consistent with the current practice of the Parliament and the Executive in relation to the calculation of a period of sitting days. Item 41 Section 48AA 123. Section 48AA of the Legislation Act sets out a simplified outline of Part 3 of Chapter 3 of the Legislation Act. 124. This item amends section 48AA by omitting the phrase after it has achieved this effect. This reflects the amendments made to the automatic repeal provisions in Division 1 of Part 3 of Chapter 3 by items 42 to 60 of Schedule 1. Items 42 to 60 Amendments to sections 48A, 48C, 48D 125. Sections 48A, 48C and 48D of Division 1 of Part 3 of Chapter 3 of the Legislation Act ( the automatic repeal provisions ) provide that the following instruments are automatically repealed once the instrument has commenced, the capacity for any further provisions to take effect has been exhausted, or the instrument is registered, whichever occurs later: a legislative or notifiable instrument ( amending or repealing instrument ) whose only legal effect is to amend or repeal another legislative or notifiable instrument (section 48A) a legislative or notifiable instrument that contains a provision ( amending or repealing provision ) whose only legal effect is to amend or repeal another legislative or notifiable instrument, or to amend the instrument containing the provision (section 48C), and a legislative or notifiable instrument, other than a commencement instrument, that contains a provision ( commencement provision ) whose only legal effect is to provide for the commencement of an instrument or an Act (section 48D). 126. The operation of the automatic repeal provisions does not prevent the amending and repealing instrument, or the instrument containing the amending and repealing provision or commencement provision, from being subject to disallowance. As a consequence, these instruments are often automatically repealed before the disallowance period for that instrument has concluded. 127. The Sunsetting Review Report considered that this interaction between the automatic repeal provisions and the disallowance mechanism creates unnecessary confusion when members or senators are considering possible disallowance of such an instrument, as it may seem counter-intuitive that an automatically repealed instrument can still be disallowed. 128. The amendments made by items 42 to 60 of Schedule 1 reflect recommendation 44 of the Sunsetting Review Report that Division 1 of Part 3 of Chapter 3 be amended to provide that a disallowable legislative instrument is automatically repealed at either the end of the disallowance period for that instrument, when the instrument has fully taken effect, or when the capacity for any further provisions to commence has been exhausted, whichever occurs later. 129. These amendments do not affect the ability of another Act to expressly override the Legislation Act by providing for a shorter or longer disallowance period for instruments made under that Act. 19