Explanatory Memorandum(Circulated by authority of the Attorney-General, the Honourable Nicola Roxon, MP)
1. This Bill amends the Parliamentary Counsel Act 1970 to enable the transfer of the functions of the Office of Legislative Drafting and Publishing (OLDP) in the Attorney-General's Department (AGD) to the Office of Parliamentary Counsel (OPC).
2. The main amendments will confer on OPC additional functions - being the functions performed by OLDP - relating to:
- the drafting of subordinate legislation
- making arrangements for the compilation, printing and publication of laws, and
- other functions incidental to ensuring the quality of legislative instruments.
3. Other amendments will be made to the Acts Publication Act 1905 and Legislative Instruments Act 2003 (LIA) to provide the First Parliamentary Counsel with functions - being the functions performed by OLDP - relating to:
- the maintenance of the Federal Register of Legislative Instruments, which is a publicly available electronic database of legislative instruments, and
- promoting the legal effectiveness, clarity and intelligibility of legislative instruments.
4. Consequential amendments will also be made to the Family Law Act 1975, Federal Court of Australia Act 1976, Federal Magistrates Act 1999 and Judiciary Act 1903 , to make it clear that OPC may provide assistance in the drafting of rules of court made under those Acts.
5. The proposed transfer of functions would improve the efficient and effective management of Commonwealth legislative drafting resources and improve the quality and consistency of Commonwealth legislation, in line with the Government's commitment to clearer Commonwealth laws.
6. There are currently two Commonwealth offices responsible for the drafting of laws. OPC is an independent statutory agency within the Attorney-General's portfolio, with responsibility for drafting Government bills and amendments. It consists of a First Parliamentary Counsel, two Second Parliamentary Counsel and approximately 55 staff employed in both drafting and non-drafting roles. By comparison, OLDP is a division within AGD, which has responsibility for drafting a range of subordinate legislation, as well as ensuring the compilation and publication of all laws, predominantly through the Federal Register of Legislative Instruments and ComLaw. OLDP is comprised of approximately 23 legislative drafters and 50 staff responsible for the registration, editing, compilation and publication of legislation.
7. Across other Australian jurisdictions, it is common practice for the one office to draft both bills and subordinate legislation.
8. In creating the one Commonwealth drafting office, the Bill would facilitate the introduction of a consistent approach for drafting bills and legislative instruments and, more broadly, maximise the use and flexibility of Commonwealth drafting resources. This is becoming increasingly necessary in order to efficiently and effectively deal with the expanding volume and complexity of Commonwealth legislation, acknowledging the vital role of regulations and other subordinate laws. It would also ensure the most efficient use of specialised information technology arrangements for the drafting of both bills and subordinate legislation.
9. The Government has taken into consideration the recommendations of the Strategic Review of Small and Medium Agencies in the Attorney-General's Portfolio conducted by Mr Stephen Skehill, a former Secretary of the Attorney-General's Department, in the development of this Bill.
Financial Impact Statement
10. The Bill will not have any net financial impact. The proposal will involve the transfer of funding from AGD to OPC to ensure that OPC is properly resourced to undertake all its additional functions. This will be achieved on a Budget neutral basis.
Regulation Impact Statement
11. This Bill will facilitate clearer laws, and potentially simplify some compliance tasks for business, by ensuring that all major new laws are drafted to a consistent and high standard. The Office of Best Practice Regulation has confirmed that a more detailed Regulation Impact Statement is not required (OBPR reference 13750).
Human Rights Statement of Compatibility
12. This Bill will advance the protection of human rights and the rule of law by ensuring that all major new laws are drafted to a consistent and high standard. It is fully compatible with human rights as defined in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .
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