Explanatory Memorandum
(Circulated by authority of the Attorney-General, the Honourable Nicola Roxon, MP)Schedule 2-Other amendments
Part 1-Amendments
Acts Publication Act 1905
Item 1 Section 1A
26. The Bill inserts numerous references to the First Parliamentary Counsel into the Acts Publication Act. For this reason, item 1 will insert a definition of "First Parliamentary Counsel" in section 1A of the Act.
27. The definition provides that any reference to the First Parliamentary Counsel means the person appointed to the position under subsection 4(1) of the Parliamentary Counsel Act 1970 . Under subsection 2(4) of that Act the First Parliamentary Counsel is to, "under the Minister", control OPC.
Item 2 Section 1A (definition of Secretary)
28. Item 2 removes the definition of "Secretary" from section 1A of the Act, as it is no longer required. This is because the Bill transfers all the functions, which were formerly the responsibility of the Secretary of AGD, to the First Parliamentary Counsel.
Item 3 Subsection 4(1)
29. Item 3 removes the reference to the "Secretary" in subsection 4(1) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC in relation to the maintenance of an electronic database of Acts and compilations of Acts.
Item 4 Subsection 4(2)
30. Item 4 removes the reference to the "Secretary" in subsection 4(2) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC in relation to making a declaration about what is considered to be an Acts database for the purposes of the Act.
Item 5 Subsection 4(3)
31. Item 5 removes the reference to the "Secretary" in subsection 4(3) of the Act and replaces it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC in relation to ensuring that Acts and compilations of Acts are available for the public to access.
Item 6 Subsection 8(1)
32. Item 6 removes all references to the "Secretary" that occur in subsection 8(1) of the Act and replaces them with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC in relation to making arrangements for an Acts database to be altered to rectify any errors regarding instances where the electronic text of the Act, or compilation of an Act, does not correspond with the text of the Act or does not represent the current state of the law.
Item 7 Subsection 8(2)
33. Item 7 removes the reference to the "Secretary" in subsection 8(2) of the Act and replaces it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC in relation to making annotations to explain the nature, day, time and reasons for a rectification made under subsection 8(1).
Family Law Act 1975
Item 8 Subsection 123(2A)
34. Item 8 removes the reference to the "Department" in subsection 123(2A) of the Act and replaces it with a reference to the "Office of Parliamentary Counsel", established by subsection 2(1) of the Parliamentary Counsel Act 1970 . The replacement of the term reflects the transfer of functions from AGD to OPC in relation to the provision of assistance in the drafting of rules of court made under the Act, if the Chief Judge so desires.
Federal Court of Australia Act 1976
Item 9 Subsection 59(5)
35. Item 9 removes the reference to the "Department" in subsection 59(5) of the Act and replaces it with a reference to the "Office of Parliamentary Counsel", established by subsection 2(1) of the Parliamentary Counsel Act 1970 . The replacement of the term reflects the transfer of functions from AGD to OPC in relation to the provision of assistance in the drafting of rules of court made under the Act, if the Chief Justice so desires.
Federal Magistrates Act 1999
Item 10 Subsection 81(4)
36. Item 10 removes the reference to the "Department" in subsection 81(4) of the Act and replaces it with a reference to the "Office of Parliamentary Counsel", established by subsection 2(1) of the Parliamentary Counsel Act 1970 . The replacement of the term reflects the transfer of functions from AGD to OPC in relation to the provision of assistance in the drafting of rules of court made under the Act, if the Chief Federal Magistrate so desires.
Judiciary Act 1903
Item 11 Subsection 86(3)
37. Item 8 removes the reference to the "Department" in subsection 86(3) of the Act and replaces it with a reference to the "Office of Parliamentary Counsel", established by subsection 2(1) of the Parliamentary Counsel Act 1970 . The replacement of the term reflects the transfer of functions from AGD to OPC in relation to the provision of assistance in the drafting of rules of court made under the Act, if the Chief Justice so desires.
Legislative Instruments Act 2003
Item 12 Subsection 4(1)
38. The Bill inserts numerous references to the First Parliamentary Counsel into the LIA. For this reason, item 12 will insert a definition of "First Parliamentary Counsel" in subsection 4(1) of the Act.
39. The definition provides that the First Parliamentary Counsel is the person appointed to the position under subsection 4(1) of the Parliamentary Counsel Act 1970 .
Item 13 Subsection 4(1)
40. The Bill also inserts references to OPC in the LIA. For this reason, item 13 will insert a definition of "Office of Parliamentary Counsel" in subsection 4(1) of the Act.
41. The definition provides that OPC means the Office established by subsection 2(1) of the Parliamentary Counsel Act 1970 . Under subsections 2(2) and 2(3) and section 16 of that Act, OPC consists of a First Parliamentary Counsel, two Second Parliamentary Counsel and staff engaged under the Public Service Act 1999 .
Item 14 Subsection 4(1)
42. The Bill also inserts a reference to the Second Parliamentary Counsel into section 58 of the LIA (at item 45). For this reason, item 14 will insert a definition of "Second Parliamentary Counsel" in subsection 4(1) of the Act.
43. The definition provides that Second Parliamentary Counsel is the person who is appointed to the position under subsection 4(1) of the Parliamentary Counsel Act 1970 .
Item 15 Subsection 4(1) (definition of Secretary)
44. Item 15 removes the definition of "Secretary" from subsection 4(1) of the Act as it is no longer required. This is because the Bill transfers all the functions, which were formerly the responsibility of the Secretary of AGD, to the First Parliamentary Counsel.
Item 16 Subsection 16(1)
45. Item 16 removes the reference to the "Secretary" in subsection 16(1) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC in relation to encouraging high standards in the drafting of legislative instruments through promoting the legal effectiveness, clarity, and intelligibility to anticipated users.
Item 17 Paragraph 16(2)(d)
46. Item 17 removes the reference to "other Departments or agencies" in paragraph 16(2)(d) of the Act and substitutes it with "Departments or other agencies". This is a technical amendment relating to the fact that OPC is an agency, rather than a Department. This paragraph will allow the First Parliamentary Counsel to cause steps to be taken to provide training in drafting and matters related to drafting to officers and employees of any Department, or of any other agency.
Item 18 Paragraph 16(2)(e)
47. Item 18 removes the reference to "other Departments or agencies" in paragraph 16(2)(e) of the Act and substitutes it with "Departments or other agencies". This is a technical amendment relating to the fact that OPC is an agency, rather than a Department. This paragraph will allow the First Parliamentary Counsel to cause steps to be taken to arrange the temporary secondment of staff to any Department, or to any other agency.
Item 19 Paragraph 16(2)(e)
48. Item 19 removes the reference to the "Department" in paragraph 16(2)(e) of the Act and substitutes it with the term "Office of Parliamentary Counsel". The replacement of this term corresponds with the amendment at item 18 and makes it clear that the temporary secondment, referred to above, relates to the secondment of OPC staff.
Item 20 Paragraph 16(2)(f)
49. Item 20 removes the reference to "other Departments or agencies" in paragraph 16(2)(f) of the Act and substitutes with "Departments or other agencies". This is a technical amendment relating to the fact that OPC is an agency, rather than a Department. This paragraph will allow the First Parliamentary Counsel to cause steps to be taken to provide drafting precedents to officers and employees of any Department, or of any other agency.
Item 21 Subsection 16(3)
50. Item 21 removes the reference to the "Secretary" in subsection 16(3) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and means that the First Parliamentary Counsel must cause steps to be taken to ensure the appropriate use of gender-specific language in legislative instruments, and advise rule-makers and both Houses of Parliament where any inappropriate use of gender-specific language occurs in legislative instruments that are already in existence.
Item 22 Subsection 20(1)
51. Item 22 removes the reference to the "Secretary" in subsection 20(1) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and confers on the First Parliamentary Counsel a responsibility to maintain the Federal Register of Legislative Instruments.
Item 23 Subsection 20(1A)
52. Item 23 removes the reference to the "Secretary" in subsection 20(1A) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and confers on the First Parliamentary Counsel a responsibility to ensure that legislative instruments that are registered are available for the public to access.
Item 24 Subsection 23(1)
53. Item 24 removes all references of the term "Secretary" in subsection 23(1) of the Act and substitutes them with references to the "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and confers on the First Parliamentary Counsel the responsibility for correcting errors on the Federal Register of Legislative Instruments and explaining the error, the date and time of and reason for the correction.
Item 25 Subsection 25(1)
54. Item 25 removes the reference to the term "Department" in subsection 25(1) of the Act and substitutes it with the term "Office of Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and provides that a rule-maker, who is required to register a legislative instrument under this Division, must lodge the instrument with the Office of Parliamentary Counsel.
Item 26 Paragraph 25(2)(d)
55. Item 26 removes the reference to the term "Secretary" in paragraph 25(2)(d) of the Act and substitutes it with a reference to the "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and provides that, where the law-maker cannot comply with paragraph 25(2)(a), (b) or (c), they may submit other evidence of the text of the original legislative instrument that the First Parliamentary Counsel considers acceptable.
Item 27 Subsection 27(1)
56. Item 27 removes the reference to the term "Secretary" in subsection 27(1) of the Act and substitutes it with a reference to the "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and confers responsibility on the First Parliamentary Counsel to ensure that legislative instruments lodged under subsection 25(1), and explanatory statements lodged under subsection 26(1), are registered.
Item 28 Subsection 29(1)
57. Item 28 removes the reference of the term "Department" in subsection 29(1) of the Act and substitutes it with the term "Office of Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and provides that the legislative instruments required to be registered under section 28 of the Act, and made within the period referred to in the table under subsection 29(1) are to be lodged with the OPC, by the day specified in the table, unless otherwise provided under regulations.
Item 29 Subsection 29(2)
58. Item 29 removes the reference of the term "Department" in subsection 29(2) of the Act and substitutes it with the term "Office of Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and provides that the legislative instruments mentioned in the section are to be lodged for registration with OPC.
Item 30 Paragraph 29(3)(d)
59. Item 30 removes the reference to the term "Secretary" in paragraph 29(3)(d) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and means that, where the law-maker cannot comply with paragraph 29(3)(a), (b) or (c), they may submit other evidence of the text of the original legislative instrument that the First Parliamentary Counsel considers acceptable.
Item 31 Subsection 30(1)
60. Item 31 removes the reference to the term "Secretary" in subsection 30(1) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and confers responsibility on the First Parliamentary Counsel to ensure that legislative instruments lodged under section 29 are registered.
Item 32 Subsection 31(2)
61. Item 32 removes the reference to the term "Secretary" in subsection 31(2) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and means that, if a legislative instrument that is required to be registered cannot be registered due to technical difficulties, the First Parliamentary Counsel may cause the instrument to be published in the Gazette.
Item 33 Subsection 31(3)
62. Item 33 removes all references to the term "Secretary" in subsection 31(3) of the Act and substitutes them with references to the "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and confers on the First Parliamentary Counsel the responsibility for ensuring that any instrument published in a Gazette under section 31(2) of the Act, is entered in the Federal Register of Legislative Instruments as soon as practicable, with an annotation of the day and time that the instrument is taken to have been registered.
Item 34 Subsection 33(1)
63. Item 34 removes the reference to the term "Secretary" in subsection 33(1) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and means that, if a legislative instrument is amended, the First Parliamentary Counsel must ensure that an electronic compilation is registered either after the provision of the amending Act has commenced, or after the amending instrument is registered and has commenced.
Item 35 Subsection 33(2)
64. Item 35 removes all references to the term "Secretary" in subsection 33(2) of the Act and substitutes them with references to the "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and provides that if the First Parliamentary Counsel causes a compilation to registered in relation to a principal legislative instrument and it is subsequently disallowed in whole or in part, the First Parliamentary Counsel must ensure that the necessary annotations and changes are made to update the Federal Register of Legislative Instruments.
Item 36 Section 34 (heading)
65. Item 36 repeals the heading to section 34 of the Act and substitutes a new heading that (consistently with the amendments of the section being made by items 37, 38 and 39) refers to the First Parliamentary Counsel rather than the Secretary.
Item 37 Subsection 34(1)
66. Item 37 removes the reference to the term "Secretary" in subsection 34(1) of the Act and substitutes it with a reference to the "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and means that the First Parliamentary Counsel may give a written notice to the rule-maker of an amending legislative instrument requiring them to lodge an electronic compilation of the principal legislative instrument.
Item 38 Subsection 34(2)
67. Item 38 removes the reference to the term "Secretary" in subsection 34(2) of the Act and substitutes it with the term "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and means that the First Parliamentary Counsel may, where an Act amends a legislative instrument, give a written notice to a rule-maker of the principal legislative instrument requiring them to lodge an electronic compilation of the principal legislative instrument.
Item 39 Subsection 34(3)
68. Item 39 removes all references to the term "Secretary" in subsection 34(3) of the Act and substitutes them with references to the "First Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and means that the First Parliamentary Counsel may give written notice to a rule-maker of a legislative instrument that has been wholly or partly disallowed to lodge a revised electronic compilation of the amended principal legislative instrument that takes account of the disallowance.
Item 40 Subsection 38(1)
69. Item 40 removes the reference to the term "Department" in subsection 38(1) of the Act and substitutes it with the term "Office of Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and confers on OPC the responsibility for ensuring that a copy of each legislative instrument registered under Division 2 of Part 4 is delivered to both Houses of Parliament within 6 sitting days after registration.
Item 41 Subsection 39(1)
70. Item 41 removes the reference to the term "Department" in subsection 39(1) of the Act and substitutes it with the term "Office of Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and confers on OPC the responsibility to ensure that (where lodged) a copy of explanatory material is tabled at the same time as the legislative instrument.
Item 42 Subsection 39(2)
71. Item 42 removes the first occurring reference to the term "Department" in subsection 39(2) of the Act and substitutes it with the term "Office of Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and clarifies that, if a rule-maker fails to lodge an explanatory statement with the OPC before the legislative instrument is delivered, the rule-maker must provide to the particular House of Parliament a copy of explanatory material and a written statement as to why it was not provided at the same time as the legislative instrument.
Item 43 Subsection 39(2)
72. Item 43 removes the second and third references to the term "Department" in subsection 39(2) of the Act and substitutes them with the term "Office". The replacement of the term reflects the transfer of functions from AGD to OPC and supports the change made by item 42.
Item 44 Subsection 52(3)
73. Item 44 removes the reference to the term "Department" in subsection 52(3) of the Act and substitutes it with the term "Office of Parliamentary Counsel". The replacement of the term reflects the transfer of functions from AGD to OPC and confers on OPC the responsibility for providing a copy of the relevant list due for sunsetting under subsection 52(2) of the Act to the rule-maker responsible for the principal legislative instrument, as well as each provision of a legislative instrument appearing on the list.
Item 45 Section 58
74. Item 45 repeals the existing section 58 and substitutes it with a new section 58 in relation to the delegation of the First Parliamentary Counsel's powers. The insertion of the new section reflects the transfer of functions from AGD to OPC and confers on the First Parliamentary Counsel the ability to delegate, through a signed instrument, any of his or her powers or functions under the Act to a Second Parliamentary Counsel, an SES employee in OPC or an SES employee in AGD.
75. Delegation of the First Parliamentary Counsel's powers has been limited to the above listed officers, in order to ensure that delegations can only be made to appropriate senior level officers. Generally, it is expected that delegations will be to a Second Parliamentary Counsel or an SES employee in OPC. However, there may be situations in which it is appropriate to give a delegation to an SES employee in AGD. For example, AGD will continue to provide IT support in relation to ComLaw and the Federal Register of Legislative Instruments for some time, and delegations may be required for that purpose.
Part 2-Transitional and savings provisions
76. The provisions in this Part are intended to ensure the continuity of actions taken, and processes underway, under the Acts Publication Act 1905 and the LIA before the transfer of functions from AGD to OPC.
Item 46 Definitions
77. Subitem 46(1) defines the term "Secretary" as the Secretary of the Department (meaning AGD).
78. Subitem 46(2) clarifies that a reference to doing a thing includes a reference to making an instrument.
Item 47 Things done under the Acts Publication Act 1905
79. Subitem 47(1) provides that a thing done by or in relation to the Secretary under a provision of the Acts Publication Act 1905 before the transfer of functions is taken to have been done by or in relation to First Parliamentary Counsel under that provision (as amended). This will, for example, have the effect that the declaration, by the Secretary, of an Acts database under subsection 4(2) of that Act will be taken to have been made by First Parliamentary Counsel under that subsection (as amended).
80. Subitem 47(2) ensures that the time at which the thing was done remains unchanged.
Item 48 Things done under the Legislative Instruments Act 2003
81. Subitem 48(1) provides that a thing done by or in relation to the Secretary under a provision of the LIA (or of regulations under that Act) before the transfer of functions is taken to have been done by or in relation to First Parliamentary Counsel under that provision (as amended). This will, for example, have the effect that a rectification of the Federal Register of Legislative Instruments arranged by the Secretary under section 23 of the Act before the transfer will continue to have effect after the transfer.
82. Subitem 48(2) provides that a thing done by or in relation to AGD under a provision of the LIA (or of regulations under that Act) before the transfer of functions is taken to have been done by or in relation to OPC under that provision (as amended). This will, for example, have the effect that a legislative instrument lodged with the AGD for registration before the transfer will be taken to have been lodged with OPC.
83. Subitem 48(3) ensures that the time at which the thing was done remains unchanged.