Senate

Statute Law Revision Bill (No. 2) 2006

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Philip Ruddock MP)

Schedule 1 - Amendment of principal Acts

The items in Schedule 1 amend errors in principal Acts.

Item 1

Schedule 1 to the Australian Crime Commission Act 2002 refers to section 219F of the Customs Act 1901 . That reference is redundant since section 219F of the Customs Act 1901 was repealed by item 5 of Schedule 1 to the Surveillance Devices Act 2004 . Item 1 removes the redundant reference.

Item 2

Item 54 of Schedule 1 to the Australian Communications and Media Authority (Consequential and Transitional Provisions) Act 2005 repealed the only clause in Part 9 of Schedule 4 to the Broadcasting Services Act 1992 . Since Part 9 no longer contains any provisions, the heading to that Part is redundant. Item 2 repeals the heading.

Item 3

Section 219AB of the Customs Act 1901 provided for the nomination of Administrative Appeals Tribunal (AAT) members to issue warrants under section 219B of the Customs Act 1901 for the use of listening devices. Sections 219AB and 219B of the Customs Act 1901 were repealed by item 5 of Schedule 1 to the Surveillance Devices Act 2004 . However, certain provisions of the Customs Act 1901 related to sections 219AB and 219B remain. These are subsection 219ZL(4) which confers certain immunities and protections on nominated AAT members and subsection 219ZL(5) which provides for a definition of nominated AAT member. Subsections 219ZL(4) and (5) are now redundant and are repealed by item 3.

Item 4

Subsection 80B(1) of the Defence Act 1903 contains an offence for the improper use of service decorations. Item 4 amends that subsection so that the text reads "A person is guilty of an offence if...", rather than "A person if guilty of an offence if...".

Items 5 and 6

Both paragraph (a) of the definition of relevant offence in subsection 16(2) of the Export Market Development Grants Act 1997 and paragraph 78(1)(a) of that Act refer to "subsection 229(3) of the Corporations Act 2001 ". Subsection 229(3) of the old Corporations Law provided for the automatic disqualification of a person from managing a corporation if found guilty of certain offences. Item 1 of Schedule 1 to the Corporate Law Economic Reform Program Act 1999 repealed and substituted Chapters 2D and 2E of the old Corporations Law and subsection 229(3) consequently became subsection 206B(1) of the Corporations Law . Subsection 206B(1) of the Corporations Law was later re-enacted as subsection 206B(1) of the Corporations Act 2001 . Items 5 and 6 correct the out-of-date cross-references in the Export Market Development Grants Act 1997 so that they refer instead to subsection 206B(1) of the Corporations Act 2001 .

Item 7

Paragraph 101(1)(ba) of the Export Market Development Grants Act 1997 empowers the Minister to determine guidelines to be complied with by the Chief Executive Officer (CEO) in determining whether goods are made in Australia for the purposes of paragraph 24(a) and subparagraphs 37(1)(c)(i) and (g)(i) of that Act. However, paragraph 37(1)(b) also requires consideration of whether goods are made in Australia. Note 2 at the end of subsection 37(1) indicates that each time the question whether goods are made in Australia is relevant under that subsection, regard is to be had to the guidelines determined under paragraph 101(1)(ba). Item 7 amends paragraph 101(1)(ba) to include the missing reference to paragraph 37(1)(b).

Item 8

Item 198 of Schedule 2 to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 repealed the only section in Division 7 of Part 8 of the Export Market Development Grants Act 1997 . Since Division 7 no longer contains any provisions, the heading to that Division is now redundant. Item 8 repeals the heading.

Item 9

The first subsection in section 10G of the Family Law Act 1975 is not numbered. Item 9 numbers that subsection "(1)".

Item 10

The text in section 12A of the Family Law Act 1975 is numbered "(1)". However, because the section is not divided into subsections, the numbering is unnecessary. Item 10 removes the "(1)"

Item 11

Subsection 93D(1) of the Federal Magistrates Act 1999 incorrectly provides for the CEO of the Federal Magistrates Court to authorise an officer or staff member of the Family Court to provide family counselling under the Family Law Act 1975 . Officers and staff members of the Family Court can already be authorised by the CEO of the Family Court to provide family counselling under subsection 38BD(1) of the Family Law Act 1975 . Item 11 amends subsection 93D(1) of the Federal Magistrates Act 1999 to provide for the CEO of the Federal Magistrates Court to authorise an officer or staff member of the Federal Magistrates Court to provide such counselling.

Item 12

There is no "the" before " Family Law Act 1975 " in subsection 93D(1) of the Federal Magistrates Act 1999 . Item 12 inserts the "the".

Item 13

Subsection 10(5) of the Food Standards Australia New Zealand Act 1991 contains a definition of sanitary or phytosanitary measure . The second sentence in subsection 10(4) of that Act refers to "sanitary and phytosanitary measures". Item 13 amends the second sentence so that it correctly refers to the defined term.

Item 14

Subparagraph 58PB(4)(c)(v) of the Fringe Benefits Tax Assessment Act 1986 refers to the " Retirement Savings Account Act 1997 ". This should be a reference to the " Retirement Savings Accounts Act 1997 ". Item 14 corrects that reference.

Item 15

The first subsection in section 106Y of the Higher Education Funding Act 1988 is not numbered. Item 15 numbers that subsection "(1)".

Item 16

The definition of holder, RSA and RSA provider in subsection 202DJ(2) of the Income Tax Assessment Act 1936 refers to the " Retirement Savings Account Act 1997 ". This should be a reference to the " Retirement Savings Accounts Act 1997 ". Item 16 corrects that reference.

Item 17

Subsection 73F(2) of the Life Insurance Act 1995 refers to a life company not being able "to meets" its obligations. Item 17 corrects this grammatical error.

Item 18

The word "contravene" is misspelt in subsection 151(5) of the Life Insurance Act 1995 . Item 18 corrects this error.

Item 19

When it commences, item 5 of Schedule 1 to the Occupational Health and Safety (Commonwealth Employment) Amendment Act 2006 will insert a definition of registered organisation into subsection 5(1) of the Occupational Health and Safety (Commonwealth Employment) Act 1991 . Paragraph (a) of that definition refers to an organisation within the meaning of "Schedule 1B" to the WRA.

Schedule 1B to the WRA was renumbered as "Schedule 1" by item 2 of Schedule 5 to the Work Choices Act. Since the Occupational Health and Safety (Commonwealth Employment) Amendment Bill 2006 was before the Parliament when Schedule 5 to the Work Choices Act commenced, the renumbering provisions in that Schedule could not update the reference in the Bill to Schedule 1B.

Item 19 will amend the definition of registered organisation immediately after it is inserted so that it correctly refers to Schedule 1 rather than Schedule 1B.

Item 20

The definition of retirement savings account in subsection 9(1) of the Social Security Act 1991 refers to the " Retirement Savings Account Act 1997 ". This should be a reference to the " Retirement Savings Accounts Act 1997 ". Item 20 corrects that reference.

Item 21

There is no closing parenthesis after the word "Act" in paragraph 1061JG(1)(c) of the Social Security Act 1991 . Item 21 inserts a closing parenthesis.

Item 22

Paragraph 156(1)(d) of the Social Security (Administration) Act 1999 refers to subsection 156(5) of that Act. However, that reference is redundant because subsection 156(5) of the Social Security (Administration) Act 1999 was repealed by item 42 of Schedule 3 to the A New Tax System (Family Assistance and Related Measures) Act 2000 . Item 22 removes the redundant reference.

Items 23 and 24

Clause 12 of Schedule 3 to the Social Security (Administration) Act 1999 deals with the situation where a member of the Social Security Appeals Tribunal (SSAT) is unavailable to complete a review of a decision. Paragraph 12(1)(c) refers to the situation where the Executive Director does not give a direction under "clause 7" reconstituting the SSAT for the purposes of the review. Paragraph 12(1)(d) refers to the rehearing of the proceeding by the SSAT as constituted in accordance with the directions of the Executive Director under "clause 11". However, the power to make directions constituting and reconstituting the SSAT is found in clause 10. Items 23 and 24 amend paragraphs 12(1)(c) and (d) so that they refer to directions under clause 10 and not directions under clause 7 or 11.

Item 25

Paragraph 12-80(a) in Schedule 1 to the Taxation Administration Act 1953 refers to the " Retirement Savings Account Act 1997 ". This should be a reference to the " Retirement Savings Accounts Act 1997 ". Item 25 corrects that reference.

Item 26

The definition of retirement savings account in subsection 5J(1) of the Veterans' Entitlements Act 1986 refers to the " Retirement Savings Account Act 1997 ". This should be a reference to the " Retirement Savings Accounts Act 1997 ". Item 26 corrects that reference.

Item 27

Item 9 of Schedule 20 to the Workplace Relations and Other Legislation Amendment Act 1996 repealed subsections 17(1A) and (1B) of the WRA (as in force at that time), but did not remove the references to those subsections from subsection 17(2) (as then in force). Section 17 was renumbered as section 72 on the commencement of Schedule 5 to the Work Choices Act. Item 27 removes the references to subsections (1A) and (1B) from subsection 72(2) as in force after the commencement of that Schedule.

Item 28

The text of paragraph 180(2)(b) of the WRA should read "the skills or qualifications of employees" not "the skills or qualifications or employees". Item 28 corrects this error.

Item 29

The text in section 639 of the WRA is numbered "(1)". However, because the section is not divided into subsections, the numbering is not necessary. Item 29 removes the "(1)".

Item 30

Item 33 of Schedule 16 to the Workplace Relations and Other Legislation Amendment Act 1996 repealed Division 2 of Part XIV of the WRA. That Division used to contain provisions relating to the Industrial Relations Court of Australia. It contained sections 365 and 366 which dealt with the payment of salaries to the judges of that Court. Section 358 of the WRA provided for the Consolidated Revenue Fund to be appropriated to the extent necessary for payment of amounts under sections 365 and 366. The Workplace Relations and Other Legislation Amendment Act 1996 did not remove the references to sections 365 and 366 in section 358 of the WRA when it repealed Division 2 of Part XIV.

Section 358 of the WRA was renumbered as section 843 on the commencement of Schedule 5 to the Work Choices Act. Item 30 removes the incorrect references to sections 365 and 366 from section 843.

Item 31

The note at the end of subsection 25(1) of Schedule 1 to the WRA states that in order for an organisation to comply with that Schedule, its rules must not be contrary to that Act and refers to "paragraph 142(a)" of that Schedule. It is paragraph 142( 1 )(a) of that Schedule that specifies that requirement. Item 31 corrects the incorrect cross-reference in the note.

Item 32

Subsection 164A(1) of Schedule 1 to the WRA contains a reference to "subsection 4". The "4" is not in parentheses. Item 32 inserts the parentheses.

Item 33

The text in section 361 of Schedule 1 to the WRA is numbered "(1)". However, because the section is not divided into subsections, the numbering is not necessary. Item 33 removes the "(1)".

Prior to the commencement of item 358 of Schedule 1 to the Work Choices Act, the clauses in Schedule 1 to the WRA did not have headings. Item 358 amended Schedule 1 to the WRA (since renumbered as Schedule 2) by repealing clause 2 of that Schedule and substituting clauses 2 to 5, with headings to those clauses. This left clause 1 without a heading. The margin note following item 33 inserts a heading to clause 1.

Item 34

Paragraph 82(2)(a) of Schedule 6 to the WRA has a comma before the "and" at the end of that paragraph, rather than a semi-colon. Item 34 replaces the comma with a semi-colon.

Items 35 and 36

Schedule 6 to the WRA deals with transitional arrangements for parties bound by federal awards. Clause 82 of that Schedule preserves the effect, during a transitional period, of declarations made before the commencement of Schedule 1 to the Work Choices Act that a term of an award be a common rule in Victoria. Clause 83 of Schedule 6 to the WRA preserves the effect, during a transitional period, of declarations made before the commencement of Schedule 1 to the Work Choices Act that a variation of a term of an award that is a common rule in Victoria is not binding on certain organisations or persons.

The effect of section 142B of the WRA, as in force before the commencement of Schedule 1 to the Work Choices Act, was that the Minister could apply for a review of such declarations by a Full Bench of the Australian Industrial Relations Commission under section 109 of the WRA, as in force at that time. Under subsection 109(4), the Commission had the same powers following a hearing on a review as it had following a hearing on an appeal under section 45 as then in force, which included quashing an order or decision.

When paragraph 82(3)(b) and subclause 83(2) were first enacted they said that the provisions continuing the effect of the declarations had effect "subject to subsection 45(7) (including that subsection as applied by subsection 109(4 ))." However, section 109 was repealed by Schedule 1 to the Work Choices Act and remade in substantially the same form as section 44L (since renumbered as section 114). Another section 109 (since renumbered as section 449), dealing with the object and overview of a Division dealing with secret ballots on proposed protected action, was inserted in its place. The reference in paragraph 82(3)(b) and subclause 83(2) to "subsection 109(4)" should have been to subsection 44L(4) (or subsection 114(4) as it has since been renumbered). Items 35 and 36 remove the references to subsection 449(4) and replace them with references to subsection 114(4).

Item 37

Section 109 of the WRA, as in force before the commencement of Schedule 1 to the Work Choices Act, provided for the Minister to apply for a review by a Full Bench of the Australian Industrial Relations Commission of an order made by a member of the Commission. Section 142B of the WRA, as then in force, provided for section 109 to apply to a common rule declaration under Division 5 of Part VI as then in force, as if it were an order of the Commission. Subsection 493A(2), as then in force, extended the operation of section 142B for common rule declarations made in relation to Victoria.

Clause 88 of Schedule 6 provides that if an application by the Minister for a review of a common rule declaration for Victoria was made before the commencement of Schedule 1 to the Work Choices Act, that application would continue to be dealt with under the WRA as in force before the commencement of the Work Choices Act. Item 37 inserts the word "repealed" before the reference to subsection 109(1) to make it clear that clause 88 is referring to subsection 109(1) as in force before the commencement of the Work Choices Act.

Item 38

Paragraphs 91(a) and (b) of Schedule 6 to the WRA refer to "subclause 105(1)". However, clause 105 of Schedule 6 is not divided into subclauses. Item 38 corrects those references.

Item 39

Paragraph 107A(e) of Schedule 6 to the WRA provides that, for the purposes of that Schedule, Part 16 (Freedom of association) of that Act applies, to the extent possible, as if a notional section were inserted after section 783. Schedule 5 of the Work Choices Act did not apply in relation to the notional section, so it was not renumbered by that Schedule. Item 39 renumbers the notional section to be inserted after section 783 as section 783A.

Item 40

Clause 20 of Schedule 7 to the WRA provides that section 494 of that Act applies in relation to a pre-reform AWA as if it were an AWA. However, section 494 of the WRA does not apply to AWAs-it applies in relation to collective agreements and workplace determinations. It is section 495 of the WRA that deals with the taking of industrial action following the coming into operation of an AWA. Item 40 replaces the reference in paragraph 20(b) of Schedule 7 to "section 494" with a reference to "section 495".

Item 41

Clause 22 of Schedule 8 to the WRA deals with coercing a person to agree, or not to agree, to terminate or approve the termination of a preserved State agreement. Subclause 22(3) of Schedule 8 provides that certain provisions in Division 10 of Part VIB of the WRA, as in force immediately before the commencement of Schedule 1 to the Work Choices Act, apply in relation to a contravention of subclause 22(1) of Schedule 8 as if it were a contravention of subsection 170CN(1) as in force at that time. The reference to "subsection 170CN(1)" should be a reference to "subsection 170NC(1)", which is the provision of the WRA that dealt with coercion of persons to make, vary or terminate certified agreements prior to the commencement of Schedule 1 to the Work Choices Act. Item 41 corrects this reference.


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