House of Representatives

Parliamentary Counsel and Other Legislation Amendment Bill 2012

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Nicola Roxon, MP)

Schedule 1-Main amendments

Parliamentary Counsel Act 1970

Item 1 Section 3

7. Item 1 inserts a new subsection (1) at the beginning of section 3 of the Act, as item 4 will insert additional subsections. The current contents of section 3 will form part of the new subsection (1).

Item 2 At the end of paragraph 3(a)

8. Item 2 adds the word "and" at the end of paragraph 3(a), in order to reflect current drafting practice.

Item 3 Paragraph 3(c)

9. Item 3 repeals the existing paragraph 3(c) of the Act and substitutes it with new paragraphs 3(1)(c) to (j), which would confer on OPC the functions presently performed by OLDP, including:

the drafting of subordinate legislation
preparing compilations, reprints and information relating to Commonwealth laws
making arrangements for printing and publishing Commonwealth laws, proposed laws, compilations and reprints of Commonwealth laws
preparing and publishing Government Notices Gazettes, including Special and Periodic Gazettes
providing assistance to foreign countries in relation to the drafting, printing, publishing of their laws or information relating to those laws, with the approval of the Minister, and
other functions conferred by the regulations or incidental to any of the above functions.

10. The new paragraph 3(1)(g) makes it clear that the functions conferred on OPC or the First Parliamentary Counsel under the Acts Publication Act 1905 , the LIA and any other laws of the Commonwealth would also fall within the scope of section 3. This includes the provision of assistance in the drafting of court rules under the Family Law Act 1975, Federal Court of Australia Act 1976, Federal Magistrates Act 1999 and Judiciary Act 1903 .

11. The new paragraph 3(1)(h) reflects a range of international activities formerly performed by OLDP, including the undertaking of drafting for other countries, providing assistance with developing templates, information technology systems, conducting training and workshops and hosting overseas drafters in Australia. The performance of such functions require the approval of the Attorney-General (as the Minister administering the Parliamentary Counsel Act 1970 ) because they require a balancing of Australia's foreign policy objectives with the significant resources implications of such work.

12. Paragraph 3(1)(i) provides for additional functions to be inserted by regulation, to provide flexibility to deal with evolving requirements. For example, electronic publication functions have largely emerged in the last two decades and may well continue to evolve. Similarly cross-jurisdictional work between the Commonwealth and States and Territories has become more prominent eg drafting of model laws. No additional functions are planned at this time - the provision simply allows for an efficient response to future developments. Any regulation conferring new functions on OPC would be subject to tabling in Parliament and provision for disallowance.

Item 4 At the end of section 3

13. Item 4 adds a new subsection 3(2) to clarify that the functions listed in subsection 3(1) are not exclusively granted to OPC. This provision makes it clear that there is no requirement that OPC draft all instruments listed at subsection 3(1). Under current arrangements, the drafting of some types of legislative instruments can be undertaken by agencies themselves.

14. However, the new subsection makes clear that directions under section 55ZF of the Judiciary Act 1903 may affect the extent to which other persons or bodies can engage in the activities listed at subsection 3(1). Section 55ZF of the Judiciary Act allows the Attorney-General to issue Legal Services Directions with respect to Commonwealth legal work. The Legal Services Directions 2005 provide that most drafting work is tied to government providers of legal services, in accordance with the Directions on Tied Areas of Commonwealth Legal Work at Appendix A.

15. Item 4 also adds a new subsection 3(3) to clarify that an approval made by the Minister in relation to the provision of assistance to a foreign country under paragraph 3(1)(h) is not a legislative instrument within the meaning of section 5 of the LIA. Such declarations would involve an application of paragraph 3(1)(h) to particular circumstances and thus are administrative rather than legislative in nature. Hence, this provision is not a substantive exemption from the operation of the LIA but, rather, merely declaratory of the existing law.

16. Finally, item 4 adds a new subsection 3(4) to define certain terms used in section 3:

the term "laws" of the Commonwealth is defined to include Acts and subordinate legislation
the term "publishing" encompasses electronic publication, and
the term "subordinate legislation" should be read as including Ordinances, Proclamations, regulations, rules and other legislative instruments made under Commonwealth laws. It will also include other instruments that are made under Commonwealth laws (such as instruments that are declared under section 7 of the LIA not to be legislative instruments: for example, certain instruments made under the Corporations Act 2001 and the Superannuation Industry (Supervision) Act 1993 ); instruments that have or are given the force of Commonwealth law (such as State or Territory instruments that are to be given the force of Commonwealth law through a uniform national scheme); or instruments that are otherwise related to, or have effect for the purposes of, Commonwealth laws (such as instruments relating to honours and awards for service under the Defence Act 1903 ).

Item 5 After section 16A

17. Item 5 inserts a new section 16B after section 16A of the Act.

18. Currently, OLDP charges fees for the performance of some of its functions, including the drafting of some instruments and the registration of instruments under the LIA. The new subsection 16B(1) will enable OPC to charge fees for functions that it will take over from OLDP. This will be done in line with the Australian Government Cost Recovery Guidelines and the Australian Government Competitive Neutrality Guidelines. However, the power to charge fees will not extend to OPC's functions under paragraphs 3(1)(a) and (b). These are OPC's current bill drafting functions, which will continue to be performed free of charge.

19. New section 16B reflects the fact that some of the new functions conferred on OPC may involve not only providing services to entities that are part of the Commonwealth, but also to other entities such as Commonwealth authorities that have their own legal personality and, particularly in the context of the new publishing functions, State and Territory entities, commercial organisations and private individuals. While OLDP's current fee charging arrangements are not underpinned by a provision such as proposed section 16B, the drafting of this Bill provides an opportunity to give this arrangement a clearer and more transparent basis in legislation.

20. The new subsection 16B(2) makes it clear that any fee charged under subsection 16B(1) must not amount to taxation.

21. The new subsection 16B(3) provides that the fee is a debt due to OPC, on behalf of the Commonwealth, and is recoverable by OPC, on behalf of the Commonwealth, in a court of competent jurisdiction. This is a standard provision.

22. Item 5 also inserts a new section 16C into the Act.

23. OPC, and many of the entities for which it will perform functions, are within the constitutional concept of "the Commonwealth". Technically, an entity that is part of the Commonwealth cannot impose fees on another such entity. However, there can be accounting transfers within Commonwealth accounts of the entities to put them in the same position as if a fee had actually been imposed. This is the concept of "notional liability" that is referred to in the new subsection 16C(1).

24. The new subsection 16C(2) provides that the Minister responsible for administering the Financial Management and Accountability Act 1997 may give written directions for the purposes of ensuring that the fees under section 16B are notionally paid by entities that are within the concept of the Commonwealth. This includes directions relating to the transfer of amounts within, or between, accounts operated by the Commonwealth.

25. The new subsection 16C(3) clarifies that a direction made under section 16C(2) is not a legislative instrument. This provision is not a substantive exemption from the operation of the LIA but rather, is declaratory of the existing law, as Ministerial directions are not legislative instruments within the meaning of section 5 of the LIA.

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