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)

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registration to determine whether they are fit-for-purpose and should be remade, or have become redundant and can be repealed.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:

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 instrument

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 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 (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.


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