Proposals for enhancement of reprint powers
Background
The Reprints Act 1984 sets out various powers that can be exercised by PCO when compiling a reprint of WA legislation. The exercise of these powers reduces the need for Parliament to spend its valuable time considering amendments to legislation that are essentially minor and technical in nature and do not change the substance of the law, but nonetheless help to improve the accessibility of the law. Indeed, an important limitation on the exercise of these powers is that any changes cannot alter the operation or effect of the legislation.

Current powers in Reprints Act 1984
The current WA reprint powers as set out in section 7 of the Reprints Act 1984 are limited in a number of key respects:
  • while they allow the updating of citations to WA legislation where those citations have changed, there is no corresponding power in relation to laws of other jurisdictions that might be referred to in WA legislation;
  • they make no provision for the updating of language indicative of gender;
  • they do not permit the correction of cross-referencing errors or the renumbering of legislative provisions;
  • there is little in the way of powers that would allow the making of format changes to bring WA legislation into line with current legislative drafting practice.
Other jurisdictions
Legislative drafting offices in a number of other Australasian jurisdictions have extensive statutory powers to make editorial and other changes when preparing reprints (also called consolidations) of legislation. Those powers tend to be broader and to provide greater flexibility than the powers available to PCO. A common theme in other jurisdictions is to allow changes to be made for the purpose of achieving consistency with current legislative drafting practice in the particular jurisdiction. The Reprints Act 1984 does not contemplate changes of this kind.

An overview of the relevant legislation in other jurisdictions is set out in Attachment 1.

Striking a balance
Any expansion of reprint powers needs to be carefully considered in order to strike the right balance between 3 matters:
  • the maintenance of the integrity of the legislative process by which only Parliament, and those to whom legislative powers are delegated by Parliament, can enact and change the law;
  • the need for the law to be written in a way that makes it readily understandable by those to whom it applies and those who must administer it;
  • the responsibility of government to provide public access to accurate, up-to-date and reliable versions of legislation in a timely and efficient manner.
Proposed enhancements of reprint powers
The proposals for the enhancement of the WA reprint powers deal with powers that fall into 2 broad categories:
  • powers to make editorial changes to legislation;
  • powers to make changes to the format or layout of legislation to conform with current drafting practice.
It needs to be emphasised that, as is the case with the current WA reprint powers, any additional reprint powers would need to be exercised with caution and only in appropriate circumstances. The overriding principle has to be that any change made as the result of the exercise of reprint powers cannot alter the operation or effect of the legislation. This principle is currently reflected in the Reprints Act 1984, and no change is proposed.

A.    Powers to make editorial changes
Editorial changes are changes made to the text of a law to update its content, to bring it into line with current drafting practice or to correct errors.
1. Updating references to law of other jurisdictions where citation has changed
The Reprints Act 1984 permits a change to the citation of a WA Act or of WA subsidiary legislation if the citation has been changed. There is currently no power to update the citation of a law of another jurisdiction. This is to be contrasted with the approach in other jurisdictions where the relevant powers are framed more broadly so as to cover laws of the Commonwealth, other States, Territories and, in some instances, New Zealand.

* Proposal 1
The WA reprint powers be expanded to allow the updating of a reference to the law of another Australasian jurisdiction in cases where the citation of the law has changed.
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2. Updating references to law where law has been replaced
Several jurisdictions confer power to change a reference to a law or a provision of a law in circumstances where the law or provision has been replaced by another law or provision. The concept of a law is defined to include a law of another jurisdiction. There is no corresponding power in the Reprints Act 1984.

* Proposal 2
The WA reprint powers be expanded to allow the updating of a reference to a law (including a law of another Australasian jurisdiction) or a provision of a law in cases where the law or provision has been replaced.
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3. Expressions indicating gender
PCO has recently moved to a gender-free drafting style, which requires that WA legislation, to the extent appropriate, be expressed in terms that are inclusive of all persons so as to avoid provisions that assume each individual has a specific gender. Other jurisdictions allow expressions indicating gender to be changed for consistency with current drafting practice.

Example
     Change:
     A person must not obstruct a police officer in the exercise of his or her powers under this Act.
     to:
     A person must not obstruct a police officer in the exercise of the officer’s powers under this Act.

* Proposal 3
The WA reprint powers be expanded to allow expressions indicating gender to be changed to conform with current drafting practice.
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4. Numbering and renumbering
Several jurisdictions have powers that allow the numbering and renumbering of legislative provisions. Powers of this kind could prove useful in the reprinting of WA legislation, especially where the relevant enactment has been extensively amended so that it contains complex and confusing numbering.

* Proposal 4
The WA reprint powers be expanded to allow the numbering and renumbering of provisions.
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5. References to things that have been replaced
The Reprints Act 1984 currently authorises WA legislation to be updated if there has been a change to the name, style or title of a person, office, place or other thing. However it does not cover circumstances where something referred to in legislation has been replaced by something else. Some other jurisdictions (for example, Queensland and Tasmania) expressly deal with this issue and permit the updating of references to things in circumstances where those things have been replaced.

Example
If a body called the Water and Rivers Board is replaced by a body called the Water Resources Commission, references to the first body can be changed to references to the second body.

* Proposal 5
The WA reprint powers be expanded to allow the updating of references to things that have been replaced.
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6. Grammar, spelling and punctuation
The Reprints Act 1984 authorises the correction of errors or inconsistencies in spelling, grammar or punctuation. In the case of inconsistency, a limiting factor is that the inconsistency has to arise in the legislation that is being reprinted. Broader powers are available in other jurisdictions to make changes to grammar, spelling or punctuation for consistency with current drafting practice.

* Proposal 6
The WA reprint powers be expanded to allow changes to be made to grammar, spelling or punctuation to conform with current drafting practice.
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7. References to provision of law
A number of other jurisdictions have power to change the way a provision of a law is referred to in order to achieve consistency with current drafting practice. The power in the Reprints Act 1984 is restricted to situations where an error or anomaly in the way in which a provision is referred to can be identified. A widening of the power so that it permitted changes for consistency with current drafting practice would result in a more flexible approach.

Example
     A reference to Division 2 of Part 5 can be changed to Part 5 Division 2.

* Proposal 7
The WA reprint powers be expanded to allow changes to the way in which a provision of a law is referred to for conformity with current drafting practice.
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8. Minor or technical errors
The powers available in other jurisdictions to correct errors in legislation tend to be much broader than the powers available under the Reprints Act 1984. Examples of the errors dealt with in other jurisdictions are:
  • typographical or clerical errors;
  • grammatical and spelling errors;
  • punctuation errors;
  • cross-referencing or numbering errors;
  • errors in alphabetical ordering;
  • errors in references to legislation or legislative provisions;
  • errors in or arising out of a legislative amendment.

* Proposal 8
The WA reprint powers be expanded to allow the correction of errors of a minor or technical nature.
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9. Obsolete or redundant provisions
Several jurisdictions permit the omission of obsolete or redundant provisions in legislation. These powers go further than the Reprints Act 1984 which deals specifically with the omission of expired, spent, repealing, saving or transitional provisions.

* Proposal 9
The WA reprint powers be expanded to allow the omission of obsolete or redundant provisions in WA legislation.
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10. Incorporation of certain provisions contained in amending legislation
The current practice in PCO is to include validation, saving and transitional provisions and provisions of a similar nature in principal legislation. However, historically, provisions of this kind have been set out in amending legislation instead of the legislation being amended. The provisions are “homeless” in that they do not form part of the legislation to which they relate and are therefore difficult to find. Other jurisdictions confer power to incorporate these provisions in the relevant principal legislation and it would be useful if a similar power were available in WA.

* Proposal 10
The WA reprint powers be expanded to allow validation, saving, transitional and similar provisions contained in amending legislation to be incorporated in the legislation to which the provisions relate.
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11. Consequential changes
As other jurisdictions have recognised, a power to make changes that are consequential on other changes made in the exercise of editorial powers is an important adjunct to the conferral of those powers.

* Proposal 11
The WA reprint powers be expanded to allow the making of changes that are consequential on other changes made in the exercise of editorial powers.
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B. Powers to make format or layout changes
12. Format or layout changes
A number of jurisdictions confer specific powers to make changes in respect of the format or layout of legislation for the purposes of reprinting. As with editorial changes, there is usually the constraint that changes of this kind can only be made for the purpose of bringing the legislation into line with current drafting practice. The powers under the Reprints Act 1984 are comparatively limited in this respect.

It would be useful to mirror the approach in other jurisdictions and allow format or layout changes to WA legislation for consistency with current drafting practice.

* Proposal 12
The WA reprint powers be expanded to allow format or layout changes to be made to WA legislation to ensure conformity with current drafting practice.
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Any other comments on the discussion paper?

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