ALRC Submission: 2021–22 Review of the Legislation Act 2003

Ms Sarah Chidgey
Chair
2021–22 Review of the Legislation Act 2003
By Email: legislationactreview@ag.gov.au

8 December 2021

Dear Ms Chidgey

The Australian Law Reform Commission (ALRC) is grateful for the opportunity to make a submission to the 2021–22 Review of the Legislation Act 2003 (‘Legislation Act’).

This submission is based on findings from the ALRC’s ongoing Review of the Legislative Framework for Corporations and Financial Services Regulation. In the course of this Inquiry, the ALRC has examined the accessibility and navigability of legislation on the Federal Register of Legislation, and the Commission has undertaken extensive data analysis of legislation published on the Register. The ALRC has also made proposals in relation to the publication of legislative materials aimed at improving the experience of users accessing legislation through the Federal Register of Legislation.

Based on findings from the ALRC’s Financial Services Inquiry, this letter briefly responds to several of the issues raised in the Review’s Discussion Paper. The ALRC suggests that enhancements could be made to the Federal Register of Legislation and the publication of legislation that would further support the achievement of the Act’s objects. Amendments to the objects to align the publication of Acts and legislative instruments may also bring benefits in managing and navigating the stock of legislation.

Appendix A contains original ALRC data on the Commonwealth statute book and Appendix B includes relevant excerpts from recent ALRC publications.

Three recent ALRC publications are of particular relevance to the Review Committee’s work:

• Interim Report A: Financial Services Legislation (Report, November 2021)
• Complexity and Legislative Design (FSL 2, October 2021) (‘FSL 2’)
• Improving the Navigability of Legislation (FSL 3, October 2021) (‘FSL 3’)

The ALRC made two recommendations in Interim Report A that are relevant to the Review of the Legislation Act:

• Recommendation 11: The Office of Parliamentary Counsel (Cth) should investigate the production of Commonwealth legislation using extensible markup language (XML).
• Recommendation 12: The Office of Parliamentary Counsel (Cth) should commission further research to improve the user-experience of the Federal Register of Legislation.

The ALRC also made a proposal in relation to the publication of legislative instruments that ‘notionally’ amend the Corporations Act.[1] The ALRC has identified that notional amendments significantly reduce the navigability and accessibility of legislation published on the Federal Register of Legislation.

Publication of legislation in XML

Approximately 67% of parliaments with legislative management systems use XML for at least some of their work, of which 40% use XML to publish legislative materials such as Acts and Bills.[2] The UK, New Zealand, and the USA publish some or all of their legislation in XML. Queensland, NSW, and Tasmania’s adoption of XML has allowed functionalities not available on the Federal Register of Legislation (see FSL 3 [162]).

XML offers a way to make documents both human- and machine-readable, and opens up a range of possibilities for making legislation more meaningfully accessible. For example, XML can support the ‘marking-up’ of definitions, cross-references, dates of amendments, and changes to the text of a provision (including notional amendments). The ALRC explored in detail the potential benefits of XML in FSL 3 ([139]–[170]). The ALRC concluded that, while there would be significant transition costs in implementing XML, doing so would bring benefits for users of legislation, drafters, lawmakers, and RegTech developers.

Most delegated legislation is not drafted by OPC. If the Review Committee considered XML potentially desirable, it could consider whether amending the Legislation Act is necessary in order to achieve consistency in respect of formatting legislation in XML. This could be achieved by granting OPC or the Attorney-General the ability to prescribe publication requirements for legislative instruments.

Changes to the Federal Register of Legislation

Section 3(d) of the Legislation Act provides that an object of the Act is ‘improving public access to Acts and instruments’. The ALRC suggests that the quality of the experience in accessing and navigating legislation through the Federal Register of Legislation is an important aspect of meaningful public access to legislation. The ALRC identified a range of functionalities that other jurisdictions’ legislation websites include that are absent or only partly implemented in the Federal Register of Legislation. These include:

• integrated publication of explanatory materials (FSL 3, [113]–[116]);
• annotations (FSL 3, [117]–[122]);
• consolidated legislative and guidance documents (FSL 3, [124]–[125]);
• hyperlinking, including of uses of defined terms (FSL 3, [126]–[131]); and
• point-in-time versions (FSL 3, [133]–[136]).

These observations were the basis for the ALRC’s recommendation that OPC should commission further research to improve the user-experience of the Federal Register of Legislation. The ALRC also noted that the use of XML would support the implementation of potential publication enhancements.

Improved drafting of Acts as an object

Section 3(c) of the Legislation Act provides that the Act seeks to encourage ‘high standards in the drafting of legislative instruments and notifiable instruments to promote their legal effectiveness, their clarity and their intelligibility to anticipated users’. The Review Committee may wish to consider whether this object should be extended to the drafting of Acts and what processes and institutions may support this object. The ALRC has identified a range of drafting techniques from Australia and overseas that can assist in the navigability, and therefore the accessibility, of Commonwealth legislation (FSL 3, [26]–[110]).

Review of Acts as an object

Section 3(f) of the Legislation Act has the object of establishing mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed’. This could be extended to Acts. In FSL 3, the ALRC identified a range of processes currently in place in New Zealand and some European jurisdictions for the review of the statute book (FSL 3, [147]–[148]). The Review of the Legislation Act offers an opportunity to consider a ‘stewardship’ approach by OPC to legislation, akin to that in New Zealand.[3] The data in Appendix A underline the importance of processes for reviewing the enormous stock of Commonwealth law.

Repeal of amending Acts and Act provisions

Section 3(ea) of the Legislation Act provides for ‘automatically repealing spent legislative instruments and notifiable instruments (or provisions of those instruments) that merely provide for the amendment, repeal or commencement of Acts or other instruments’ (see also s 48A). This could be extended to Acts or provisions of Acts that merely provide for the amendment, repeal or commencement of Acts or other instruments. In the course of the Financial Services Inquiry, the ALRC has identified a number of Acts that are ostensibly ‘in force’ Principal Acts but which are primarily amending Acts. For example, the over 200-page Corporate Law Reform Act 1992 is still in force as a Principal Act despite most of its provisions amending the now repealed Corporations Law. It remains unrepealed because it includes amendments to other in force Acts, including the Bankruptcy Act 1966, and transitional provisions. Automatic repeal of amending Acts or provisions of Acts would avoid the situation at present whereby people have to wade through Principal Acts that contain amendments that are already included in other Act compilations.

Conclusion

We trust this submission is of assistance. If you require any further information, please do not hesitate to contact the ALRC. The action officer is Nicholas Simoes da Silva (nicholas.simoesdasilva@alrc.gov.au).

Yours Sincerely,

[by email]

Matt Corrigan
General Counsel

[1] See Proposal A12 in Appendix B.

[2] Inter-Parliamentary Union, World E-Parliament Report (2018) 54.

[3] See, for example, Legislation Act 2019 (NZ) ss 92–100, which provide for a process for ‘progressively and systematically’ revising New Zealand legislation (s 92(1)). See, also, Legislative Standards Act 1992 (Qld) ss 4, 7.