Copyright © Government of South Australia 2002
All legislation herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Copyright. The Copyright Act, 1968 (Cth) permits certain reproduction and publication of South Australian legislation. In particular s. 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For the reproduction or publication beyond that permitted by the Act, permission should be sought in writing from the South Australian Attorney-General's Department. Requests in the first instance should be addressed to the Attorney-General.
LEGISLATION REVISION AND PUBLICATION BILL
Speech: The Hon. M.J. ATKINSON (Attorney-General) obtained leave and introduced a bill for an act to provide for the revision and publication of South Australian legislation; to repeal the Acts Republication Act 1967; to amend the Evidence Act 1929 and the Subordinate Legislation Act 1978; and for other purposes. Read a first time.
The Hon. M.J. ATKINSON: I move:
That this bill be now read a second time.
South Australia can be proud of its program for the consolidation of public general acts and regulations.
Mr Meier: We all are capable of reading it; everyone in this chamber is capable of reading it.
The Hon. M.J. ATKINSON: I am very disappointed that the Opposition Whip takes that attitude. I am reading this bill out of courtesy to the chamber. This is a point of order or an objection that has been taken by the Liberal Party before. For eight years as an opposition member of this chamber
#36 An honourable member interjecting:
The SPEAKER: Order!
The Hon. M.J. ATKINSON: I would come in here and government members would slap on the desks here speeches or reports which they had never read or edited and which were not their own work. They would not even do the house the courtesy of telling members briefly what the bill was about. Since I have been a minister it has been my practice at least to summarise the effect of the bill as an act of courtesy to those who are in the chamber.
Mr Meier interjecting:
The SPEAKER: Order! The member for Goyder will come to order. It is the prerogative of any member or minister to explain the proposition they have moved. The Attorney-General.
The Hon. M.J. ATKINSON: It is a practice I have followed since I have been a minister and, to the immense frustration of the member for Goyder, I will continue the practice out of courtesy to the chamber. Since early 1992 all public general acts and since 1995 all public general regulations have been continuously kept up to date in consolidated form. All acts and certain often used regulations are reprinted in hard copy on a regular basis as amendments come into operation, and all are available in electronic form. The bill replaces the Acts Republication Act and those parts of the Subordinate Legislation Act relating to the consolidation of regulationsthe acts under which the program is conducted.
The measure will provide further support for the ongoing legislation consolidation program and facilitate improvements in consistency and presentation of the legislative data. The bill continues to provide for the appointment of a commissioner to oversee the program. The name of the office is altered from Commissioner of Statute Revision to Commissioner for Legislation Revision and Publication to emphasise the role of publishing legislation in printed or electronic form as well as revising legislation. The bill provides more extensive revision powers to ensure that South Australian legislation can be maintained appropriately, while ensuring that nothing is doneand I emphasise thisin the exercise of those powers that could alter the substantive effect of legislation.
In addition, the bill provides the groundwork for giving electronic versions of legislation, when accessed at a prescribed web site or kept in a prescribed format, the same legal status as the printed version of legislation. This reflects the approach taken in authorising electronic versions of legislation in Tasmania and the Australian Capital Territory. The necessary regulations will not be prescribed until completion of a project for the conversion of legislative data to extensible markup language designed to protect the longevity of the data, capture all graphics in legislation and establish appropriate infrastructure for the ongoing support of the web site. The project is complex and should be completed before the end of 2003. I commend the bill to honourable members, and I seek leave to have the explanation of the clauses inserted in Hansard without my reading it.
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legislation revision and publication bill 2002 Explanation of clauses
Clause 1: Short title
This clause is formal.
Clause 2: Commencement
This clause provides for commencement of the measure by proclamation.
Clause 3: Interpretation
This clause defines terms for the purposes of the measure.
Clause 4: Commissioner for Legislation Revision and Publication
This clause provides for the Governor to appoint the Parliamentary Counsel or a legal practitioner employed in the Office of Parliamentary Counsel as Commissioner for Legislation Revision and Publication and for the Attorney-General to appoint a legal practitioner employed in the Office of Parliamentary Counsel to act in the position if there is no Commissioner or if the Commissioner is not able to act.
The transitional provisions provide for the existing Commissioner of Statute Revision to continue as Commissioner for Legislation Revision and Publication.
Under the Acts Republication Act, the Governor appoints a person to hold or act in the office of Commissioner of Statute Revision and the Attorney-General may authorise a legal practitioner to supervise the reprint program if there is no person holding or acting in the office of Commissioner. Under the Subordinate Legislation Act, the Attorney-General authorises a legal practitioner to consolidate regulations. In practice, the same person performs both functions.
Clause 5: Program for revision and publication of legislation
The Subordinate Legislation Act takes a slightly different approach in relation to the preparation of reprints to the Acts Republication Act. It is proposed that a standard approach should apply to the revision and publication of Acts and Regulations and that both reprints and electronic versions should be contemplated as a means of making up-to-date legislation accessible on an ongoing basis.
This clause requires there to be a program for the revision and publication of legislation focussing on making up-to-date public general Acts and regulations accessible in printed and electronic form.
The Acts Republication Act contains separate provisions authorising the 1975 consolidation of Acts and the ongoing reprinting program for Acts. The Subordinate Legislation Act covers the consolidation of regulations. Currently, under both the Acts Republication Act and the Subordinate Legislation Act the Attorney-General is responsible for the preparation of the reprints, reflecting the expense involved in setting up the initial consolidation program. The ongoing consolidation program is now fully established in this State. All public general Acts are reprinted and kept up-to-date on a fortnightly basis. All public general regulations are consolidated. Some of the consolidated regulations are reprinted and some made available only as electronic versions. It is a matter of continuing that program. In jurisdictions where the reprinting powers have been revisited in recent years (notably Queensland, Tasmania and the ACT) the reprinting role is conferred on an office holder.
Scope of consolidation program
Legislation is proposed to be defined as
×a regulation made under an Act
×an instrument of a prescribed kind.
This reflects the current program. It is intended that policies under the Environment Protection Act would be prescribed.
Subclause (3) excludes certain types of legislation from the scope of the consolidation program. These are the same types of legislation as were excluded from the 1975 consolidation of Actssee section 4(1) Acts Republication Act.
Clause 6: Supervision by Commissioner
This clause requires the Commissioner to supervise the revision and publication of legislation and is similar to section 6 of the Acts Republication Act.
Clause 7: Alterations that may be made in revising legislation
Subclause (1) provides the following powers that may be exercised in the course of revising legislation:
(a)The following types of provisions may be omitted:
×arrangement provisions (The summary of provisions now performs the purpose of old arrangement provisions.)
×saving, transitional or validation provisions
×other provisions that are spent or have expired or otherwise ceased to have effect.
The idea is that the republication should reflect the legislation as it is in force and not include material that has served its purpose. In each case, the omission will be noted in the legislative history (see clause 5(5)(d)).
Section 4(5) of the Acts Republication Act allows amending provisions to be left out of the 1975 consolidation. This does not (but should) carry through to the ongoing reprinting program.
Currently, these types of provisions are removed by Statute Law Revision amendments and the Act then reprinted. The proposal avoids using drafter's time and Parliamentary time on the very substantial Statute Law Revision exercises that would be involved in removing these provisions by legislative means.
(b)The long title and any relevant headings may be altered so as to take account of the omission of provisions.
This power is consequential to that in paragraph (a). References to repeals and amendments will need to be removed from the long title. Schedule headings will require adjustment where, for example, the heading refers to amendments and transitional provisions and the amending provisions are removed pursuant to the powers in (a).
(c)Obsolete headings may be omitted.
There are some cases where a heading remains in legislation but the substantive provisions under that heading have been repealed or revoked. It is proposed that the removal of the obsolete heading be authorised.
(d)If the legislation contains a minor error or would contain a minor error if consolidated in a particular way, the legislation may be expressed in a different way so as to correct or avoid the error.
A minor error is defined to mean a typographical or clerical error, a grammatical error, spelling error or error of punctuation, an error in numbering or designation, cross-referencing or alphabetical ordering.
Currently section 7(1)(f) of the Acts Republication Act enables errors of a grammatical or clerical nature to be corrected and (h) errors in numbering or designation. Section 14(3)(d) of the Subordinate Legislation Act allows printing errors and errors in spelling and numbering to be corrected. The proposed definition has been formulated following examination of what is allowed to be corrected as an error in the legislation of other Australian jurisdictions.
(e)A reference to legislation or a legislative provision for which some other legislation or provision has been substituted may be altered to a reference to the substituted legislation or provision.
This power is currently provided in section 7(1)(b) of the Acts Republication Act and section 14(3)(a) of the Subordinate Legislation Act. The power is rarely exercised because of the potential to change the substantive effect of the law but is retained for cases where there is no doubt about the substituted law.
(f)A reference to a name, title or citation of any place, person, authority or legislation that has been changed by or under an Act or law may be altered to the name, title or citation as so changed.
This power is currently provided in section 7(1)(c) of the Acts Republication Act and section 14(3)(b) of the Subordinate Legislation Act. Again, the power is rarely exercised because of the potential to change the substantive effect of the law but is retained for cases where there is no doubt about the substitution.
(g)Figures that indicate a year of the 20th century may be replaced with figures that indicate a year of the 21st century if the figures relate to an act to be performed in future.
This is similar to a provision included in the WA legislation and will apply mainly to forms in regulations.
(h)This paragraph sets our various alterations that may be undertaken to achieve consistency with current practice or uniformity in style.
Currently section 7(2) of the Acts Republication Act allows the Attorney-General to issue directions for the purpose of `achieving uniformity of style in respect of the numbering and designation of, and the use of capital letters and italics in, any of the provisions or the formal parts of Acts and in respect of the setting out of the provisions of Acts generally; and generally improving, and bringing into conformity with modern standards of draftsmanship, the form or manner in which the law contained in Acts is expressed'. The sorts of changes that might be undertaken for these purposes are encapsulated in the proposed new paragraph, negating the need for such directions. The matters listed are designed to ensure that the changes are changes in form only and not substance.
(h)(i)The enacting words in an Act may be altered and, where the enacting words are included in a preamble, they may be separated from the preamble.
Various styles of enacting words have been used over time and in older Acts a preamble included and combined with the enacting words. It is proposed to introduce consistency with the enacting words being `The Parliament of South Australia enacts as follows:'
(h)(ii)A heading may be inserted above a preamble to indicate that it is a preamble.
This is for consistency in structure.
(h)(iii)The style of references to legislation or to non-legislative works may be altered.
Various styles have been used over time and this will allow for consistency. Non-legislative works would include Australian Standards.
(h)(iv)Spelling may be altered.
This supports the current practice of updating spelling practices for example by altering `iz' to `is' in authorise.
(h)(v)Numbering may be altered, deleted or added.
This allows for consistency in numbering to be introduced where appropriate (for example in older legislation roman numerals may be used for a second set of paragraphs in a subsection) and for dashes or dots to be converted to numbering in appropriate cases (where numbers would be included as a matter of current drafting practice).
Currently, section 14(3)(f) of the Subordinate Legislation Act authorises renumbering of all regulations.
The power in this paragraph would be used with great care because of the potential for confusion and the need to ensure cross references are corrected.
(h)(vi)Expressions of a number, year, date or time or of a quantity or measurement may be expressed differently.
Section 7(1)(d) of the Acts Republication Act enables a reference in an Act or enactment to a year of Our Lord, expressed in words, to be altered to a reference to that year expressed in Arabic numerals.
Again, this power is included to promote consistency. Older drafting practice was to refer to years in words rather than figures. The statute book is inconsistent in the way in which dates and times are presented and in the way in which measurements are presented.
(h)(vii)An amount of money that is not expressed as an amount in decimal currency may be expressed as an amount in decimal currency if, according to the provisions of the Decimal Currency Act 1965, it is to be read as such.
Currently, section 8 of the Acts Republication Act and section 14(3)(c) of the Subordinate Legislation Act enable alterations to give effect to the Decimal Currency Act.
(h)(viii)A penalty at the foot of a provision may be stated to be a maximum penalty if it is so by virtue of the Acts Interpretation Act 1915.
This power would enable the references to penalty to be altered to maximum penalty in appropriate cases. Of course, this power will not be relevant to the few cases where minimum penalties apply.
(h)(ix)Formatting or any other matter related to presentation may be altered (including, for example, the setting out of provisions, the type, the use of symbols in place of words having the same meaning, the placement of conjunctives and disjunctives and the use of capital letters, punctuation, hyphens, italics, bolding and quotation marks).
Again this promotes consistency and enables full advantage to be taken of the proposed new system where printing styles can easily be updated for particular elements across the entire database.
(i)The regulations may authorise alterations of other kinds.
Equivalents of the following existing provisions are not included:
×Acts Republication Act section 7(1)(a)allows alteration of short title by inclusion of end year. This does not accord with current practice. Section 7(6) is consequential.
×Subordinate Legislation Act section 14(4)-If the principal legislation does not have a short title or citation, a short title or citation may be assigned. This related to older regulations and there are now no regulations without a citation.
×Subordinate Legislation Act section 15This enables the Attorney-General to print the consolidated text in the prescribed form and manner. There are no regulations supporting this section.
×Acts Republication Act 1967 section 12This relates to references to line numbers and pages in Acts and has no current application.
Subclause (2) provides that the section does not permit alterations to legislation that would change the effect of the legislation. This is a new provision and is a very important constraint promoting a conservative approach to the exercise of revision powers by the Commissioner.
Changes to section headings etc and legislative history
Subclause (3) contemplates that material that does not form part of legislation for interpretation purposes may be included, altered or removed.
Section 7(1)(e) of the Acts Republication Act currently allows marginal notes to sections or parts of sections to be altered.
Subclause (4) requires a legislative history to be prepared setting out
×the instruments by which the legislation has been amended;
×a description of how the provisions of the legislation have been affected by those instruments;
×relevant assent and commencement dates for those instruments;
×a note of provisions omitted using the revision powers.
Section 5(2) of the Acts Republication Act and section 14(5)(a) of the Subordinate Legislation Act require the list of amending legislation to be presented. Section 5(2) of the Acts Republication Act and section 14(5)(b) of the Subordinate Legislation Act require marginal notes indicating the reference to the amending legislation to be presented. The proposal expands on these requirements and reflects current practice.
Clause 8: Publication of legislation
This clause contemplates publication under the Act of revised legislation in either hard copy or electronic copy and of legislation that has not been revised in electronic copy. (Acts as enacted will continue to be published by authority of the Government Printer and subordinate legislation will continue to be published in the Gazette.)
The authorised electronic copies will be provided in accordance with the regulations. Provision is made for electronic copies downloaded from a website in accordance with conditions prescribed by regulation, or prints produced from such a copy in accordance with conditions prescribed by regulation, to have the same status as authorised copies.
These regulations will not be made until the electronic versions include and properly display all maps, diagrams, equations and other graphics.
The authorisation of the electronic versions will accommodate those regulations that are not currently reprinted and also the revisions that will be made across the database as it is converted to eXtensible Markup Language.
Reprinting in Parts
Subclause (2) expressly supports the practice of reprinting long, often amended, legislation in Parts, ie, substituting just the front pages, the Parts affected by the relevant amendments and the updated legislative history.
Effect of alterations
Under subclause (3) legislation revised and republished under the measure has effect as if the alterations made in revising the legislation had been made by amending legislation. This equates to sections 7(5) and 8(4) of the Acts Republication Act.
Clause 9: Evidence
This clause provides a presumption that legislation published under the measure correctly sets out the contents of the legislation. It is similar to section 9(1)(d) of the Acts Republication Act and section 16 of the Subordinate Legislation Act.
Clause 10: Regulations
This clause provides a general regulation making power.
Repeals, Amendments and Transitional Provisions
Clause 1: Repeal of Acts Republication Act
Clause 1 repeals the Acts Republication Act.
Clause 2: Amendment of Evidence Act
This Act extends the provision providing for judicial notice of legislative instruments to legislation published under the new measure or corresponding measures in other jurisdictions. In due course, this will include the electronic versions of legislation as well as the printed versions.
Clause 3: Amendment of Subordinate Legislation Act
Clause 3 amends the Subordinate Legislation Act to remove references to the authorised legal practitioner and consolidation of regulations.
Clause 4: Transitional provision
Clause 4 continues the current Commissioner of Statute Revision in office as the Commissioner for Legislation Revision and Publication.
Mr HAMILTON-SMITH secured the adjournment of the debate.