2016-2017
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
STATUTE UPDATE (WINTER 2017) BILL 2017
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, Senator the Honourable George Brandis QC)
STATUTE UPDATE (WINTER 2017) BILL 2017
GENERAL OUTLINE
The main purpose of this Bill is to correct technical errors that have occurred in Acts as a
result of drafting and clerical mistakes.
This Bill also contains amendments to:

amend Acts so that their text reflects the legal effect that Part 6 of the Acts and
Instruments (Framework Reform) Act 2015 and section 10 of the Acts
Interpretation Act 1901 currently have; and

repeal spent and obsolete provisions and Acts (which will result in the repeal
of approximately 46 pages of spent and obsolete provisions); and

modernise language and make other technical amendments in certain
legislation.
The amendments also enhance readability, facilitate interpretation and administration, and
promote consistency across the Commonwealth statute book. The amendments are minor and
technical in nature. The amendments either make no change or only minor changes to the
substance of the law. Because some amendments may make minor changes, the amendments
were not considered appropriate for inclusion in a Statute Law Revision Bill.
FINANCIAL IMPACT STATEMENT
This Bill will have no financial impact.
2
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Statute Update (Winter 2017) Bill 2017
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.
Overview of the Bill
The main purpose of this Bill is to correct technical errors that have occurred in Acts as a
result of drafting and clerical mistakes.
This Bill also contains amendments to:

amend Acts so that their text reflects the legal effect that Part 6 of the Acts and
Instruments (Framework Reform) Act 2015 and section 10 of the Acts
Interpretation Act 1901 currently have; and

repeal spent and obsolete provisions and Acts (which will result in the repeal
of approximately 46 pages of spent and obsolete provisions); and

modernise language and make other technical amendments in certain
legislation.
The amendments also enhance readability, facilitate interpretation and administration, and
promote consistency across the Commonwealth statute book.
Human rights implications
This Bill does not engage any human rights issues as it makes minor technical corrections
and technical improvements to legislation. It also repeals obsolete provisions and Acts. It
makes either no change or only minor changes to the substance of the law.
Conclusion
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, as it does not engage any of the applicable rights or freedoms or alter any human
rights safeguards currently in place.
3
Notes on clauses
Clause 1—Short title
1
Clause 1 provides for the short title of the Act to be the Statute Update (Winter 2017)
Act 2017.
Clause 2—Commencement
1
Subclause 2(1) provides that each provision of the Act specified in column 1 of the
table set out in the subclause commences, or is taken to have commenced, in accordance with
column 2 of the table. Any other statement in column 2 has effect according to its terms.
2
The note at the end of the table explains that the table relates only to the provisions of
the Act as originally enacted. The table will not be amended to deal with any later
amendments of the Act.
3
Subclause 2(2) provides that any information in column 3 of the table is not part of
the Act. It also clarifies that information may be inserted in column 3, or information in it
may be edited, in any published version of the Act.
4
Table item 1 of the table in subclause 2(1) provides for sections 1 to 3 of the Act to
commence on the day on which it receives the Royal Assent. This commencement is in
keeping with current Commonwealth drafting practice, which is to avoid retrospective
commencements where practicable.
5
Part 1 to Schedule 1 to the Bill corrects errors in principal Acts or makes minor
technical improvements to clarify the text of the law. All items in the Part commence 28 days
after the Act receives the Royal Assent. This is because the “slip rule” will have been applied
to each error since the enactment of the erroneous provision (meaning the text of the law will
have been taken to have been correct, despite the error) or the amendments do not change the
substantive content of the law.
6
Part 2 to Schedule 1 to the Bill corrects a reference to an incorrect concept. It
commences on 1 July 2015, which is retrospective. However, the slip rule would have
applied to the error since that date. So the correction from that date would not be detrimental
to readers. However, the correction of the text in compilations would assist users of the Act.
7
Schedule 2 to the Bill will amend Acts so that their text reflects the legal effect that
Part 6 of the Acts and Instruments (Framework Reform) Act 2015 and section 10 of the Acts
Interpretation Act 1901 currently have. It commences 28 days after the Act receives the
Royal Assent.
8
Schedule 3 to the Bill repeals spent and obsolete provisions of Acts. It commences
28 days after the Act receives the Royal Assent.
9
Schedule 4 to the Bill repeals redundant Acts. It commences 28 days after the Act
receives the Royal Assent.
4
Clause 3—Schedules
10
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.
5
Schedule 1—Amendment of principal Acts
11
The items in this Schedule amend errors contained in principal Acts.
Item 1
12
Schedule 1 to the Antarctic Treaty (Environment Protection) Act 1980 contains a
typographical error as it refers to “Antartic”, rather than “Antarctic”. Item 1 corrects that
typographical error.
Item 2
13
Schedule 3 to the Antarctic Treaty (Environment Protection) Act 1980 contains a
typographical error as it refers to “activites”, rather than “activities”. Item 2 corrects that
typographical error.
Item 3
14
Subsection 25(1) of the Australian Communications and Media Authority Act 2005
provides that an associate member holds office for the period specified in his or her
instrument of appointment and that the period must not exceed 5 years. Later subsections
provide for further periods of appointment, a maximum period of appointment and reductions
in the period. However, the heading to subsection 25(1) indicates that the period specified in
the instrument of appointment is a default period rather than the specified period of
appointment. Item 3 alters the heading to better indicate the contents of the subsection.
Item 4
15
A carve-out from paragraph 53(2)(k) of the Australian Communications and Media
Authority Act 2005 purports to enable delegation under sections 51 and 52 of the Australian
Communications and Media Authority’s powers to issue or extend the time for compliance
with a notice under Schedule 5, or Schedule 7, to the Broadcasting Services Act 1992.
However, under subparagraph 15(1)(a)(ii) of the Enhancing Online Safety for Children Act
2015, functions under Schedules 5 and 7 to the Broadcasting Services Act 1992 are now
functions conferred on the Commissioner, not the Australian Communications and Media
Authority and so those powers could not be delegated by the Australian Communications and
Media Authority. Item 4 omits the redundant reference.
Item 5
16
Section 61CN of the Broadcasting Services Act 1992 requires that if an approved
local content plan for a regional commercial radio broadcasting licence is in force, the
ACMA must review the plan at least once every 3 years. However, the heading to
section 61CN indicates that ACMA may rather than must review the plans. Item 5 alters the
heading to better indicate the contents of the section.
Item 6
17
Some Commonwealth Acts contain provisions creating a criminal offence using the
expression “A person is guilty of an offence”. Current Commonwealth drafting practice is to
6
use the expression “A person commits an offence”, which recognises that it is the role of the
courts to find persons guilty of an offence. This was acknowledged by Justice Deane in the
High Court decision of Polyukhovich v Commonwealth (1991) 101 ALR 545. Item 6 updates
Subsection 12(2) of the Commerce (Trade Descriptions) Act 1905 to accord with current
Commonwealth drafting practice.
Item 7
18
The definition of Review Tribunal in section 3 of the Compensation (Japanese
Internment) Act 2001 defines Review Tribunal as the Administrative Appeals Tribunal (in
paragraph (a) of the definition) or the Administrative Review Tribunal, if that tribunal
replaces the Administrative Appeals Tribunal, (in paragraph (b) of the definition). The
Administrative Review Tribunal did not replace the Administrative Appeals Tribunal so the
reference to the Administrative Review Tribunal is redundant. Item 7 remakes the definition
to remove the redundant reference.
Item 8
19
Paragraph 19APA(1)(d) of the Crimes Act 1914 contains an incorrect cross-reference
as it refers to “paragraph 19AN(1)(c)” of the Act. However, there is no such provision. The
correct provision to refer to is paragraph 19AN(c) of the Act, as paragraph 19AN(1)(c) was
renumbered as paragraph 19AN(c) by item 35 of Schedule 7 to the Crimes Legislation
Amendment (Powers, Offences and Other Measures) Act 2015. Item 8 corrects the
cross-reference.
Item 9
20
Paragraph 19APA(1)(d) of the Crimes Act 1914 contains an incorrect cross-reference
as it refers to “paragraph (a)” of the subsection. However, that provision is about the wrong
topic. The correct provision to refer to is paragraph (c) of the subsection, as that paragraph
deals with the right topic, which is imposition of conditions. Item 9 corrects the
cross-reference.
Item 10
21
Subclause 37R(2) of Schedule 2 to the Dairy Produce Act 1986 refers to “review by
the Administrative Appeals Tribunal or the Administrative Review Tribunal (as the case may
be)”. The Administrative Review Tribunal does not exist so the reference to the
Administrative Review Tribunal is redundant. Item 10 repeals the redundant reference.
Item 11
22
Paragraph 20(2)(a) of the Fair Work Act 2009 contains a typographical error as it
refers to a “full time employee”, rather than a “full-time employee”. Item 11 corrects that
typographical error.
Items 12 and 13
23
Items 12 and 13 are related. The notes at the end of clauses 1 and 40 of Schedule 1A
to the Higher Education Support Act 2003 were added by items 14 and 19 of Schedule 1 to
the VET Student Loans (Consequential Amendments and Transitional Provisions) Act 2016.
The notes refer to subclauses 43(3) to (5) of Schedule 1A to the Higher Education Support
7
Act 2003, which were also added to that Act by item 20 of Schedule 1 to the VET Student
Loans (Consequential Amendments and Transitional Provisions) Act 2016.
24
When the VET Student Loans (Consequential Amendments and Transitional
Provisions) Bill 2016 was introduced into Parliament, item 20 of Schedule 1 of the Bill added
only subclauses (3) to (5) to clause 43 of Schedule 1A to the Higher Education Support Act
2003. However, amendments were made in Parliament to the Bill, which added further
subclauses (6) and (7). The notes were not updated to include reference to the new
subclauses. This was an oversight.
25
By replacing “43(3) to (5)” in the notes with “43(3) to (7)”, items 12 and 13 reflect
the amendments made to clause 43 of Schedule 1A by the VET Student Loans (Consequential
Amendments and Transitional Provisions) Act 2016.
Item 14
26
Section 13 of the Legislation Act 2003 covers the construction of legislative
instruments and notifiable instruments. However, the heading to section 13 only mentions
legislative instruments. Item 14 makes an amendment to the heading to better indicate the
contents of the provision in the heading.
Item 15
27
Subsection 13(1) of the Long Service Leave (Commonwealth Employees) Act 1976
defines and refers to the Australian Staffing Assistance Group as being the body established
under that name by the Papua New Guinea (Staffing Assistance) Act 1973. That body was
established under section 4 of the Papua New Guinea (Staffing Assistance) Act 1973, which
was repealed by the Papua New Guinea (Staffing Assistance) Termination Act 1976. Item 15
clarifies that the body was formerly established by the Act to assist users of the legislation.
Item 16
28
Subsection 64(3) of the My Health Records Act 2012 contains an error as it refers to
“healthcare recipient only-notes”. However, there is no other reference in the Act to
“healthcare recipient only-notes”, only to “healthcare recipient-only notes”, which is defined
in section 5 of the Act. Item 16 omits the non-existent concept and substitutes the correct one.
Item 17
29
Item 17 repeals the redundant subsection 89(3) of the Primary Industries Research
and Development Act 1989. That subsection is redundant as it only relates to when section 54
of the Act applies. Section 54 of the Act was repealed by the Audit (Transitional and
Miscellaneous) Amendment Act 1997.
Item 18
30
Paragraph 6(3)(a) of the Radio Licence Fees Act 1964 refers to “the day on which the
Radio Licence Fees Amendment Act 1997 received the Royal Assent”. The Radio Licence
Fees Amendment Act 1997 received Royal Assent on 8 October 1997. It was later repealed by
the Amending Acts 1990 to 1999 Repeal Act 2016. To assist users of the Radio Licence Fees
Act 1964 to more quickly understand paragraph 6(3)(a), item 18 amends paragraph 6(3)(a) to
directly incorporate the relevant date.
8
Item 19
31
Item 19 repeals the redundant paragraph 5D(4)(aa) of the Telecommunications
(Interception and Access) Act 1979. That paragraph is redundant as it provides that
section 135.3 of the Criminal Code is a serious offence and there is no section 135.3 of the
Criminal Code.
Item 20
32
Paragraph 5D(4)(b) of the Telecommunications (Interception and Access) Act 1979
contains an incorrect cross-reference to provisions of a New South Wales Act as it refers to
“Division 1A of Part IV of the Crimes Act 1900 of New South Wales”. However, those
provisions were renumbered by Schedule 2 to the Crimes Amendment (Fraud, Identity and
Forgery Offences) Act 2009 (NSW). The correct reference is to Part 4AC of the Crimes Act
1900 of New South Wales. Item 20 corrects the cross-reference.
Item 21
33
Paragraph 6(3)(a) of the Television Licence Fees Act 1964 refers to “the day on which
the Television Licence Fees Amendment Act 1997 received the Royal Assent”. The Television
Licence Fees Amendment Act 1997 received Royal Assent on 8 October 1997. It was later
repealed by the Amending Acts 1990 to 1999 Repeal Act 2016. To assist users of the
Television Licence Fees Act 1964 to more quickly understand paragraph 6(3)(a), item 21
amends paragraph 6(3)(a) to directly incorporate the relevant date.
Items 22 to 26
34
Items 22 to 26 are related. They fix incorrect cross-references to State and Territory
laws and incorrect citations of State and Territory laws.
35
The definition of corresponding WHS law in section 4 of the Work Health and Safety
Act 2011 contains a number of incorrect cross-references to State and Territory work health
and safety laws. These errors occurred because the Work Health and Safety Act 2011 was
drafted in anticipation of all States and Territories implementing the model Work Health and
Safety Act on 1 January 2012. Two jurisdictions (Victoria and Western Australia) have not
implemented the model, and several others adopted a different title than was anticipated at
the time.
36
Items 22 and 23 amend incorrect references to the relevant Victorian and Western
Australian work health and safety laws. These jurisdictions have not adopted the model Work
Health and Safety Act, but maintain their existing laws. The corresponding WHS laws for
these jurisdictions are the Occupational Health and Safety Act 2004 of Victoria and the
Occupational Safety and Health Act 1984 of Western Australia. Correcting these referencing
errors does not change the operation of the Commonwealth legislation because these state
laws are already additionally prescribed as corresponding WHS laws (see regulation 6A of
the Work Health and Safety Regulations 2011).
37
Items 24 to 26 amend incorrect citations for the work health and safety laws in South
Australia, Tasmania and the Northern Territory. While these jurisdictions have adopted the
model Work Health and Safety laws, in South Australia and Tasmania, this happened after
passage of the Commonwealth Work Health and Safety Act 2011 in 2012. The Northern
9
Territory legislation was passed in 2011 but adopted a different naming protocol that applies
to Acts forming part of a national scheme in the territory. The correct citations are the Work
Health and Safety Act 2012 of South Australia, the Work Health and Safety Act 2012 of
Tasmania and the Work Health and Safety (National Uniform Legislation) Act of the
Northern Territory.
Item 27
38
Paragraph 4(a) of Article 1 in Schedule 1A to the Carriage of Goods by Sea Act 1991
contains an error as it refers to “the Chief Executive Officer of Customs under
paragraph 15(1)(a) or (2)(a) of the Customs Act 1901”. However, the Customs and Other
Legislation Amendment (Australian Border Force) Act 2015 changed the references to “the
Chief Executive Officer of Customs” in those provisions (and throughout the statute book), to
the “Comptroller-General of Customs”. Item 27 omits the non-existent concept and
substitutes the correct one.
10
Schedule 2—Amendments consequential on the enactment of the Acts and Instruments
(Framework Reform) Act 2015
39
The items in this Schedule contain amendments that make amendments to
Commonwealth legislation consequential on the enactment of the Acts and Instruments
(Framework Reform) Act 2015.
40
The Acts and Instruments (Framework Reform) Act 2015 amended the Legislative
Instruments Act 2003 to rename it the Legislation Act 2003. It also restructured that Act and
renumbered some provisions. It then made many amendments across the Statute Book to
reflect the new title and cross-references to various provisions.
41
Not every cross-reference was updated by the Acts and Instruments (Framework
Reform) Act 2015. Part 6 of that Act and section 10 of the Acts Interpretation Act 1901 have
operated to ensure that various textual references to the Legislative Instruments Act 2003 and
provisions within that Act that still remain on the Statute Book are to be read consistently
with amendments by the Acts and Instruments (Framework Reform) Act 2015.
42
The Acts and Instruments (Framework Reform) (Consequential Provisions) Act 2015
amended the text of many more Acts to reflect the new Act title and cross-references to
various provisions.
43
This Schedule makes further amendments to the text of Acts to reflect the effect of
Part 6 of the Acts and Instruments (Framework Reform) Act 2015 and section 10 of the Acts
Interpretation Act 1901.
11
Schedule 3—Repeal of obsolete provisions
44
This Schedule repeals non-amending provisions that have been sunsetted or otherwise
ceased to have effect.
Item 1
45
Item 1 repeals the redundant section 122A of the Defence Act 1903. That section is
redundant as subsection 122A(5) states that it ceased to be in force at the end of the period of
6 years after the day on which section 122A commenced. It expired on 2 May 1995.
Items 2 and 3
46
Items 2 and 3 are related. Item 2 repeals the redundant item 57 of Schedule 2 to the
Medibank Private Sale Act 2006. That item is redundant as subitem 57(4) states that it ceased
to have effect at the end of the period of 12 months beginning on the designated sale day
declared under section 3 of the Act. It expired at the end of 30 November 2015. Item 3 is
consequential on item 2. It clarifies for readers that item 57 has been repealed but that any
rights to compensation for acquisition of property would not have been lost.
Items 4 and 5
47
Items 4 and 5 are related. Item 5 repeals the redundant Schedule 1 to the Plant Health
Australia (Plant Industries) Funding Act 2002. That Schedule is redundant as it made
consequential amendments, which were spent immediately after they operated on 1 January
2003. Item 4 is consequential on item 5. It repeals section 13 of the Act, which enabled the
operation of the Schedule.
Items 6 and 7
48
Items 6 and 7 are related. Item 7 repeals the redundant Schedule 1 to the Prohibition
of Human Cloning for Reproduction Act 2002. That Schedule is redundant as it made
consequential amendments, which were spent immediately after they operated on 16 January
2003. Item 6 is consequential on item 7. It repeals section 7 of the Act, which enabled the
operation of the Schedule.
Items 8 to 19
49
Items 8 to 19 are related. Section 18 of the Tobacco Advertising Prohibition Act 1992
enabled certain acts of publication of tobacco advertisements in connection with events
completed before 1 October 2006. The dates for the events to be completed in has ended so
the section is redundant. Item 12 repeals the redundant section. Item 19 is a saving provision
relating to the remaking of subsection 29(1) by item 14. The remaining items make
consequential amendments relating to the repeal.
12
Schedule 4—Repeal of obsolete Acts
Item 1
50
The Aboriginal Land Rights (Northern Territory) Amendment (Township Leasing) Act
2007 amended the Aboriginal Land Rights (Northern Territory) Act 1976 and the Aboriginal
Land Rights (Northern Territory) Amendment Act 2006 on 1 July 2007. The Aboriginal Land
Rights (Northern Territory) Amendment (Township Leasing) Act 2007 does not contain any
application, saving, transitional or other provisions with ongoing effect, so it is spent. Item 1
repeals it.
Item 2
51
The Governor-General Amendment Act 2003 amended the Governor-General Act
1974 on 3 July 2003. The Governor-General Amendment Act 2003 does not contain any
application, saving, transitional or other provisions with ongoing effect, so it is spent. Item 2
repeals it.
Item 3
52
The Stevedoring Industry Act 1961 amended the Stevedoring Industry Act 1956,
which was repealed on 5 December 1977 by the Stevedoring Industry Acts (Termination) Act
1977. The Stevedoring Industry Act 1961 does not contain any application, saving,
transitional or other provisions with ongoing effect, so it is spent. Item 3 repeals it.
Item 4
53
The Stevedoring Industry (Temporary Provisions) Act 1968 amended the Stevedoring
Industry (Temporary Provisions) Act 1967, which was repealed on 5 December 1977 by the
Stevedoring Industry Acts (Termination) Act 1977. The Stevedoring Industry (Temporary
Provisions) Act 1968 does not contain any application, saving, transitional or other provisions
with ongoing effect, so it is spent. Item 4 repeals it.
13