BILLS DIGEST NO. 11, 2018–19              14 August 2018

Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018

Kaushik Ramesh
Law and Bills Digest Section

Date introduced: 28 June 2018

House: House of Representatives

Portfolio: Attorney-General

Commencement: Schedule 1, Division 1 of Part 1 of Schedule 2, and Part 2 of Schedule 2 commence the day after Royal Assent. Division 2 of Part 1 of Schedule 2 commences on proclamation or six months after Royal Assent, whichever occurs first. Part 3 of Schedule 2 will not commence, as it is no longer needed due to the commencement of Schedule 1 to the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at August 2018.

The Bills Digest at a glance

Sunsetting involves the repeal of legislative instruments after a certain date, in the absence of legislative action to continue that instrument. Sunsetting of legislative instruments is intended to ensure that laws remain fit for purpose and up to date. The Commonwealth sunsetting framework is governed by the Legislation Act 2003.

The Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018 (the Bill) implements the recommendations from the Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003 which require legislative amendments. This report made recommendations to improve and streamline the operation of the sunsetting framework. Some of the key features of the Bill include the following:

•       broadening the Attorney-General’s power to use certificates of deferral and sunset-altering instruments

•       removing the time restriction on Parliament’s power to defer the sunsetting date of a legislative instrument and

•       expanding exemptions to the sunsetting regime.

The Bill also makes other amendments relating to legislative instruments in order to resolve inconsistencies, clarify the operation of relevant provisions and reflect current drafting practice.

The Bill achieves its objectives primarily through amending the Legislation Act, but also by amending the Acts Interpretation Act 1901, the Family Law Act 1975, the Federal Circuit Court of Australia Act 1999, the Federal Court of Australia Act 1976 and the Judiciary Act 1903.

Purpose of the Bill

The purpose of the Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018 (the Bill) is primarily to amend the Legislation Act 2003 and the Acts Interpretation Act 1901 to:

•       implement the recommendations of the Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003 (Sunsetting Review Report) including by:

–      broadening the Attorney-General’s power to issue certificates of deferral and sunset-altering instruments

–      removing the time restriction on Parliament’s power to defer the sunsetting date of a legislative instrument

–      amending the automatic repeal provisions in relation to disallowable instruments

–      clarifying the meaning of the term ‘sitting day’ and

–      stipulating a second legislative review of the sunsetting provisions

•       make minor technical amendments to multiple provisions to clarify their operation, reflect current drafting practice and resolve inconsistencies.

The Bill makes minor amendments to the Family Law Act 1975, the Federal Circuit Court of Australia Act 1999 (Federal Circuit Court Act), the Federal Court of Australia Act 1976 (Federal Court Act) and the Judiciary Act 1903 to clarify the application of the Legislation Act to rules of court.

The Bill also makes minor consequential amendments to several other Acts.

Structure of the Bill

The Bill contains two schedules:

•       Schedule 1 amends the Legislation Act, the Acts Interpretation Act, the Family Law Act, the Federal Circuit Court Act, the Federal Court Act and the Judiciary Act to implement the recommendations of the Sunsetting Review Report and

•       Schedule 2 amends the Legislation Act and the Acts Interpretation Act to clarify the operation of certain provisions, resolve inconsistences and make minor technical changes to these Acts. Schedule 2 also makes consequential amendments to several other Acts which are listed at the end of this Digest.

Commencement details

Clauses 1-3 of the Bill commence on the day of Royal Assent. Schedule 1, Division 1 of Part 1 of Schedule 2, and Part 2 of Schedule 2 commence on the day after Royal Assent. Division 2 of Part 1 of Schedule 2 commences on proclamation, or six months after Royal Assent, whichever occurs first.

Part 3 of Schedule 3 will not commence at all, as it is redundant due to the commencement of Schedule 1 to the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018.

Background

Sunsetting framework

As outlined in the Attorney-General’s Department’s Guide to Managing Sunsetting of Legislative Instruments (Guide to Sunsetting),‘sunsetting provisions in legislation provide that a law is repealed after a specific date unless further legislative action is taken to extend that law.’[1] Most jurisdictions in Australia have sunsetting regimes.[2] Part 4 of Chapter 3 of the Legislation Act contains the sunsetting framework for Commonwealth legislation. Within that Part, section 50 of the Legislation Act stipulates that a legislative instrument is repealed on the first 1 April or 1 October that falls on or after the tenth anniversary of the registration of that instrument.

However, for instruments registered on 1 January 2005 (that is, instruments made prior to the commencement of the substantive provisions of the Legislation Act), subsection 50(2) stipulates when these instruments will be repealed (for example instruments made before 1930 were repealed on 1 April 2015).

The Sunsetting Review Report outlines the history of the relevant federal sunsetting provisions:

Sunsetting provisions in legislation provide that a law is repealed after a specific date unless further legislative action is taken to extend that law. The legislation implementing the Commonwealth sunsetting mechanism was developed over a number of years, in close consultation with Commonwealth agencies. The legislation was informed by the Administrative Review Council’s (ARC) 1992 report Rule making by Commonwealth Agencies,[3] which also laid the foundation for many of the principles incorporated into the Legislation Act. The scheme was initially put before the Parliament as part of the Legislative Instruments Bill 1996 [No.2], but was subsequently revised and simplified in the Legislative Instruments Bill 2003, which ultimately received Royal Assent on 17 December 2003.[4]

The Guide to Sunsetting states that the Government agency responsible for a particular instrument is responsible for managing its sunsetting process, including the costs of drafting and registration with regards to sunsetting instruments.[5] The Guide to Sunsetting sets out the steps that an agency has to follow when managing the sunsetting of a legislative instrument. An agency must determine if an instrument that will be subject to sunsetting is still ‘fit for purpose’, through a review. This review will inform the rule-maker’s decision on whether the instrument should be allowed to sunset, remade with amendments, remade without amendments, or rolled over by Parliament under section 53 of the Legislation Act (which allows either House of Parliament to pass a resolution that the instrument should continue in force within six months of that instrument being mentioned in a certificate of deferral of sunsetting or a sunsetting list laid before that House).[6] The Attorney-General, under section 51A of the Legislation Act, can align the sunsetting dates of instruments to allow them to be reviewed together (known as a thematic review[7]), and under section 51 of the Legislation Act, can issue a certificate to defer an instrument’s sunset date by six or 12 months.

Sunsetting is considered an important regulatory mechanism as it allows for the reduction of red tape, clearer laws, the alignment of legislation with current Government policy and generally allows the Commonwealth statute book up to stay up to date.[8] As of 15 May 2017, since the commencement of the sunsetting framework in 2003:

•       2,024 legislative instruments appeared on sunsetting lists (tabled by the Attorney-General as per section 52 of the Legislation Act)[9] and

•       60% (1,215) of these instruments were either allowed to sunset, actively repealed or have been replaced.[10]

Sunsetting review

Section 60 of the Legislation Act stipulates that between 1 January and 31 March 2017, the Attorney-General must appoint a body to review the sunsetting provisions in that Act. Subsection 60(4) provides that the body must provide a report on the review to the Attorney-General before 1 October 2017. This requirement was fulfilled by the Sunsetting Review Committee’s Sunsetting Review Report.[11]

The Committee’s Terms of Reference required it to consider and report on all aspects of the operation of the sunsetting framework of the Legislation Act, including:

•       the extent to which the purpose of the sunsetting framework has been realised

•       factors that have limited the achievement of this purpose

•       the extent to which the purpose of the sunsetting framework is still appropriate and

•       how performance against this purpose might be improved.[12]

On 30 May 2017, the Sunsetting Review Committee released a consultation paper (the Consultation Paper) for public comment. Twenty-five submissions were received in response to the Consultation Paper, which are discussed below in the ‘Position of major interest groups’ section.

The final report of the Sunsetting Review Committee, the Sunsetting Review Report, made 45 recommendations in relation to the current sunsetting framework. Many of these recommendations do not require legislative change, for example the recommendations to maintain the current ten year sunsetting period (Recommendation 2), to review existing Departmental policy guidance material (Recommendation 7) and that the sunsetting framework not be extended to primary legislation (Recommendation 39).[13]

Other recommendations, however, require legislative change to be implemented. As noted in the Attorney-General’s second reading speech, this is the central purpose for the introduction of the Bill:

The Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018 seeks to improve and streamline the operation of legislative frameworks for Commonwealth acts and instruments by making amendments to various acts, primarily the Legislation Act 2003 and the Acts Interpretation Act 1901.

The key purpose of the Bill is to implement those recommendations of the Report on the operation of the sunsetting provisions in the Legislation Act 2003 that can only be addressed by legislative action.[14]

Committee consideration

The Bill has not been referred to a Committee for inquiry.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing this Digest, the Senate Standing Committee for the Scrutiny of Bills had not considered the Bill.

Position of major interest groups

As the Bill has not been referred to a Committee, there are limited stakeholder comments available on the provisions of the Bill itself. However, as highlighted above, 25 submissions were received in response to the Sunsetting Review Committee’s Consultation Paper (a full list of these 25 parties is provided at Appendix B of the Sunsetting Review Report and the submissions are published on the Review website).[15] Most of these submissions were provided by Australian Government Departments and statutory bodies. Many of the submissions only provided very limited views and commented on aspects of the sunsetting framework that are not relevant to or are not being implemented in the Bill. However, some of these submissions commented on proposals which have ultimately been included in the Bill. This section summarises some of the stakeholder views on these key proposals. The details of the proposals themselves as they are implemented by the Bill are discussed in the ‘Key issues and provisions’ section of this Digest.

Deferring sunsetting for more than 12 months

The Consultation Paper sought comments from stakeholders on whether the Attorney-General should be able to defer the sunsetting of an instrument for more than 12 months (the Bill proposes to extend this period to 24 months).[16] Several stakeholders agreed with the proposal to extend the deferral period set by the Attorney-General, such as the Family Law Branch of the Attorney-General’s Department, the National Health and Medical Research Council, the Department of the Environment and Energy and the Local Government and Territories Division of the Department of Infrastructure and Regional Development.[17] The Treasury supported an extension of the period, but only up to 18 months.[18] The Department of Finance was not supportive of an extension unless necessary for a thematic review and the Office of Parliamentary Counsel (OPC) considered that granting additional deferrals would be more appropriate.[19] The Standing Committee for the Scrutiny of Bills, the Standing Committee on Regulations and Ordinances and the Parliamentary Joint Committee on Human Rights (the Committees) were not supportive of certificates of deferral being extended beyond 12 months as they are currently non-disallowable instruments.[20] As discussed in the ‘Key issues and provisions’ section below, the Bill requires that certificates of deferral beyond 12 months be in the form of disallowable instruments.

Replacing ‘cease to have effect’ with ‘repealed’

The Consultation Paper sought stakeholder views on whether the certificate of deferral provisions in the Legislation Act should be amended to replace the words ‘cease to have effect’ with the word ‘repealed’.[21] As discussed in the ‘Key issues and provisions’ section below, this proposal is included in the Bill.

The Department of Communications and the Arts, OPC, and the Local Government Territories Division in the Department of Infrastructure and Regional Development supported this proposal.[22] The Department of the Environment and Energy however noted that this proposal may have unintended consequences.[23]

Automatic repeal provisions

The Consultation Paper sought stakeholder views on the appropriateness of the automatic repeal provisions in the Legislation Act.[24] The Bill proposes amendments to these provisions (discussed below in the ‘Key issues and provisions’ section of this Digest, below).

The Department of Communications and the Arts and the Department of Immigration and Border Protection found the current automatic repeal provisions to be appropriate.[25] However, OPC suggested that the timing of the automatic repeal of a disallowable instrument should be amended so that this repeal only takes place after the disallowance period has ended.[26] OPC advised:

While OPC considers that the automatic repeal system is beneficial, OPC considers that disallowable legislative instruments are repealed too soon. At the moment, they are repealed immediately after they have fully commenced. In most cases, this is before the end of the disallowance period. OPC is aware that this has caused confusion for a range of people, and in particular for members of the Parliament when voting to disallow an amending instrument that has already been repealed.[27]

Clarification of ‘sitting days’

The Bill amends the Acts Interpretation Act to clarify what constitutes a ‘sitting day’ for the purposes of the Legislation Act (see discussion below in the ‘Key issue and provisions’ section of this Digest, below). The Department of the House of Representatives noted in its submission that it was ‘not aware of any general confusion on the subject’ regarding what constitutes a sitting day and noted that while there is no statutory definition, the established practice is set out in House of Representatives Practice.[28] However, the Committees, in their submission, noted that periodically issues do arise in relation to the meaning of sitting days and that ‘putting the matter beyond doubt would be desirable’.[29] OPC recommended that the Acts Interpretation Act be amended to clarify the meaning of ‘sitting day’; this suggestion was also endorsed in the Committees’ submission.[30]

Timeframes for parliamentary rollover

The Consultation Paper sought stakeholder comment on the appropriateness of a six month time limit for Parliament to pass a resolution to ‘rollover’ a legislative instrument due for sunsetting.[31] The Bill proposes to remove this restriction (see discussion in ‘Key issues and provisions’ section of this Digest, below). The Department of Immigration and Border Protection submitted that the current time restrictions are problematic:

Roll over timeframes are restrictive and impose a significant administrative burden for large and complex instruments, particularly because parliamentary roll over cannot be sought sufficiently in advance of the sunsetting date. We estimate that drafting on such items would need to commence two years before the sunsetting date. As a result, drafting would need to commence in advance of the instrument appearing in a sunsetting list and before a parliamentary roll over could be initiated.[32]

Exemptions from sunsetting

The Consultation Paper sought comment on whether the Legislation Act should be amended to exempt intergovernmental bodies or schemes involving the territories, not just the states, from the sunsetting regime.[33] This proposal is included in the Bill (see ‘Key issues and provisions’ section below of this Digest, below).

This proposal was supported by the Department of Communications and the Arts, the National Health and Medical Research Council, and the Treasury.[34] However, OPC noted in its submission that it did not see a legal reason for the amendment and that cooperative schemes are generally entered into with the states for constitutional reasons.[35]

A combined submission from the High Court of Australia, the Family Court of Australia, the Federal Court of Australia and the Federal Circuit Court of Australia argued that rules of court (which are not legislative instruments,[36] but are registered under the Legislation Act and treated, subject to some exceptions, as if they were legislative instruments[37]) should be exempted from the sunsetting regime altogether. The submission argues:

… unlike many statutory instruments, court rules are subject to constant and detailed scrutiny and review by subject area experts, frequently with the benefit of argument by external subject area experts, and with decisions about the operation of those rules in individual circumstances often published publically and sometimes subject to judicial review or appeal.[38]

The submission concludes that this constant review of court rules means that the burden of the sunsetting framework on the federal courts and on OPC is not warranted.[39] The Bill includes this proposal and exempts rules of court from the sunsetting regime (see ‘Key issues and provisions’ section of this Digest, below).

Financial implications

The Bill’s Explanatory Memorandum states that the Bill does not have a financial impact.[40]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible as it promotes the prohibition on retrospective criminal laws and ensures that proposals to retrospectively impose criminal liability will be subject to Parliamentary scrutiny.[41]

Parliamentary Joint Committee on Human Rights

At the time of writing this Digest, the Parliamentary Joint Committee on Human Rights had not considered the Bill.

Key issues and provisions

Certificates of deferral

Section 51 of the Legislation Act allows the Attorney-General to defer sunsetting of a legislative instrument in certain circumstances by issuing a certificate where he or she is satisfied:

•       the instrument is likely to cease within 12 months of the sunsetting day or

•       an instrument proposed to be made in substitution will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen or avoided or

•       the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed.

The Attorney-General can defer the sunsetting of the instrument to the first 1 April or 1 October following the sunsetting day (that is, deferral can be for a maximum of 12 months) (paragraph 51(1)(c)) and the certificate of deferral is a legislative instrument (subsection 51(3)).

Expanding the Attorney-General’s power when issuing a certificate of deferral

The Sunsetting Review Committee recommended at Recommendation 10 that the Legislation Act be amended to allow the Attorney-General to grant deferral of sunsetting for up to 24 months (as opposed to the current 12 month limit).[42] As noted above in the ‘Position of major interest groups’ section, certain stakeholders want the Attorney-General to be able to grant longer deferrals. This is highlighted by the Sunsetting Review Report:

The majority of submissions supported the expansion of section 51 of the Legislation Act to account for a broader range of circumstances in which a deferral may be necessary…A number of agencies noted that delaying sunsetting by 12 months is often insufficient. A common example is where the remaking of a legislative instrument is contingent upon proposed legislation that is being considered by Parliament and a 12 month deferral would not allow for the full disallowance period to conclude before the new sunset date.[43]

Item 63 of Schedule 1 of the Bill repeals and replaces paragraph 51(1)(c) to provide:

… the Attorney-General may issue a certificate providing that the first-mentioned instrument is repealed by this section on a 1 April or 1 October that is on or before the second anniversary of the sunsetting day and that is specified in the certificate.

This effectively expands the discretion of the Attorney-General, who will be able to defer the sunsetting of an instrument by up to six, 12, 18 or 24 months after its original sunsetting date (as opposed to the current options of up to six or 12 months deferral). Item 61 of Schedule 1 is consequential to the amendment in item 63. Item 61 amends current subparagraph 51(1)(b)(i) so that the Attorney-General may defer sunsetting if he or she is satisfied that the instrument would likely cease to be in force within 24 months after the sunsetting day, as opposed to the current 12 month requirement, when deciding to issue a certificate of deferral.

Item 63 also implements Recommendation 15 of the Sunsetting Review Report, which recommended that the wording ‘repealed’ replace the existing wording of ‘taken to cease to be in force’ in paragraph 51(1)(c).[44] The Sunsetting Review Report noted that this language more accurately reflected the effect of the certificate of deferral that will lead to the instrument being removed from the statute book.[45] Items 28 and 31 of Schedule 1 make similar amendments to the provisions relating to disallowance in order to reflect current drafting practice.[46]

Item 62 inserts proposed subparagraph 51(1)(b)(iii) which expands the Attorney-General’s power with respect to sunsetting by allowing the Attorney-General to defer the sunsetting day of a legislative instrument on the basis that the Attorney-General has given policy approval for the instrument to be exempted from the sunsetting framework.[47] This amendment reflects Recommendation 13 of the Sunsetting Review Report.[48] In making this recommendation, the Sunsetting Review Committee noted that due to disallowance causing potential gaps in the law:

… the Committee considers that it is appropriate that the Legislation Act be amended to clarify that a deferral may be granted in circumstances where the Attorney-General has given policy approval to exempt a legislative instrument from sunsetting, but where extenuating circumstances may prevent that exemption from coming into force before that instrument would have sunset.[49]

Tabling requirements for certificates of deferral

Current paragraph 51(2)(b) stipulates tabling requirements for a certificate of deferral, namely that a copy of the certificate must be laid before each House of Parliament within six sitting days of that House after the issue of the certificate. This is different to the requirement for other legislative instruments which need to be tabled within six sitting days after the registration of the instrument (subsection 38(1) of the Legislation Act). The Sunsetting Review Committee’s view was that there was no legitimate reason for this different tabling requirement, and recommended that paragraph 51(2)(b) be repealed (Recommendation 16).[50] Item 64 of Schedule 1 implements this recommendation by repealing the relevant subsection.

Disallowance of certificates of deferral

Currently, certificates of deferral are legislative instruments but not subject to disallowance due to table item 19 at section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the LEOMR). The Sunsetting Review Report recommended that certificates granting deferrals of up to 12 months continue to be non-disallowable legislative instruments, however certificates granting deferrals of between 12 and 24 months should be disallowable legislative instruments (Recommendation 11).[51] In putting this recommendation forward, the Sunsetting Review Report notes that deferring a legislative instrument by 24 months is a significant matter and so should be subject to parliamentary scrutiny.[52] Making these certificates disallowable would also be consistent with the fact that declarations of alignment made under section 51A of the Legislation Act are disallowable (see discussion under ‘Facilitating thematic review’ below).[53] Item 65 of Schedule 1 inserts proposed subsection 51(4) which stipulates that section 42 of the Legislation Act (disallowance of legislative instruments) does not apply to a deferral of up to 12 months. This means that certificates granting a deferral of more than 12 months will be subject to disallowance; the Explanatory Memorandum notes that the relevant table item under the LEOMR will become redundant upon commencement of the Bill and will eventually be repealed.[54]

Facilitating thematic review

Section 51A of the Legislation Act allows the Attorney-General to issue a declaration (sunset-altering instrument) that aligns the sunsetting dates of two or more legislative instruments to the 1 April or 1 October of a year up to five years later in order to facilitate what is known as a ‘thematic review’. A thematic review is a review of two or more instruments that share a common theme; a thematic review is not necessarily limited to instruments administered by one agency.[55] Subsection 51A(1) provides that in order to issue such a declaration, the Attorney-General must be satisfied that:

•       the instruments due to sunset will be subject to a single review and

•       the making of the declaration will facilitate the undertaking of the review and the implementation of its findings.

This section therefore encourages thematic reviews of related instruments and provides the flexibility for this to occur.[56]

Expanding power to issue sunset-altering instrument

Recommendation 19 of the Sunsetting Review Report recommended that paragraph 51A(b) of the Legislation Act be amended so that the Attorney-General may issue a sunset-altering instrument if he or she is satisfied that doing so will facilitate the undertaking of a thematic review or the implementation of its findings.[57] This is different to the current legislative requirements that stipulate the Attorney-General must be satisfied that the sunset-altering instrument will facilitate both the review and the implementation of its findings. The proposed amendment effectively allows sunsetting dates to be aligned to implement the findings of a completed review, not just to undertake the review itself. The Sunsetting Review Report noted the rationale for this recommendation:

The Committee considers that, as the implementation of findings is an essential step in the process of undertaking a thematic review, this proposal would not be inconsistent with the objective of section 51A. Such an amendment would also allow alignment to facilitate the implementation of findings reached by completed reviews that were instigated for reasons other than the sunsetting process.[58]

This recommendation is implemented by item 66 of Schedule 1 of the Bill by omitting ‘and’ and substituting ‘or’ so that sunsetting dates can be aligned for either the undertaking of a review or the implementation of findings of a completed review.[59]

Statement of Reasons

Currently, the Legislation Act requires a statement of reasons to be included with the issuing of a certificate of deferral under section 51, but does not include this requirement for the issuing of a sunset-altering instrument under section 51A. Recommendation 18 of the Sunsetting Review Report recommended that a similar requirement be implemented for sunset-altering instruments, as a statement of reasons ‘would improve transparency and encourage agency accountability in undertaking robust thematic reviews’.[60] In response to a suggestion from OPC that the explanatory statement is a more appropriate location for a statement of reasons than within the instrument itself, Recommendation 18 of the Sunsetting Review Report recommends amending both section 51 and section 51A so that the associated explanatory statement includes a statement of reasons for the making of those instruments.[61]

Item 65 of Schedule 1 of the Bill implements Recommendation 18 by inserting proposed subsection 51(5) which requires that the statement of reasons for the issue of a certificate of deferral to be contained in the instrument’s explanatory statement (as opposed to the current requirements where the statement of reasons is included in the certificate itself). Item 67 of Schedule 1 of the Bill inserts proposed subsection 51A(4) to create a new requirement for a statement of reasons to be provided for the making of sunset-altering instruments; this statement will also be included in the instrument’s explanatory statement.

Parliamentary roll over

Section 53 of the Legislation Act allows either House of Parliament to pass a resolution that an instrument that would otherwise be repealed by sunsetting, continues in force, effectively deferring the sunsetting date by a further ten years. This is known as a ‘parliamentary roll over’.

Currently, paragraph 53(1)(b) requires Parliament to pass this ‘roll over’ resolution within six months of the relevant instrument being mentioned in a certificate of deferral or a sunsetting list laid before a House of Parliament. The Sunsetting Review Report noted the issues with this legislative time limit:

Most agencies agreed that it is an inappropriate restriction on Parliament to require that a resolution to roll over a legislative instrument must be passed within six months after that instrument is mentioned in a sunsetting list or a certificate of deferral. Agencies were concerned that the six-month time limit was unnecessarily restrictive and may not allow sufficient time for an agency to initiate the roll over process, particularly for large and complex legislative instruments where preparations for managing sunsetting may need to commence earlier.[62]

The Committee therefore recommended at Recommendation 25 that the Legislation Act be amended to allow Parliament to pass a resolution to roll over a legislative instrument at any time after that instrument is mentioned in a sunsetting list or a certificate of deferral.[63] Items 68 and 70 of Schedule 1 of the Bill implement this recommendation by amending section 53 of the Legislation Act. Item 69 makes an amendment consequential to item 64 (see above) by stipulating that certificates of deferral will be tabled in accordance with section 38 (which relates to the tabling of all legislative instruments) as opposed to section 51.

Automatic repeal

Division 1, Part 3 of Chapter 3 of the Legislation Act provides for the automatic repeal of instruments that repeal or amend other legislative or notifiable instruments or provide for the commencement of such an instrument, after the instrument has achieved its effect.[64] The Sunsetting Review Report noted that the current provisions relating to the automatic repeal of instruments and their interaction with disallowance provisions ‘has been the subject of some confusion’:

The Committee is of the view that it creates unnecessary confusion when members or senators are considering possible disallowance of such an instrument, as it may seem counter-intuitive that an automatically repealed instrument can still be disallowed.[65]

Recommendation 44 of the Sunsetting Review Report reflects the amendments suggested in OPC’s submission (see discussion in ‘Position of major interest groups’ section above). Recommendation 44 recommended that the Legislation Act be amended so that a disallowable legislative instrument is automatically repealed at one of the following (whichever occurs later):

•       the end of the disallowance period of that instrument

•       when the instrument has fully taken effect or

•       when the capacity for any further provisions in the instrument to commence has been exhausted.[66]

Items 42-60 of Schedule 1 of the Bill amend Division 1, Part 3 of Chapter 3 of the Legislation Act to give effect to Recommendation 44 of the Sunsetting Review Report:

•       items 42-47 amend section 48A (which relates to the automatic repeal of amending or repealing legislative or notifiable instruments)

•       items 48-54 amend section 48C (which relates to the automatic repeal of legislative or notifiable instruments that contain a provision whose only legal effect is to amend or repeal another instrument or to amend the instrument containing the provision) and

•       items 55-60 amend section 48D (which relates to the automatic repeal of legislative or notifiable instruments, other than commencement instruments, that contain a provision whose only legal effect is to provide for the commencement of an instrument or an Act).[67]

Meaning of sitting day

The Sunsetting Review Report noted that some stakeholders have commented on the uncertainty of the term ‘sitting day’ and that there are some difficulties in determining how sitting days should be calculated.[68] The Sunsetting Review Report also noted that there are inconsistencies between what constitutes a sitting day between each House of Parliament; the House of Representatives treats as a single sitting day circumstances where the House has suspended sitting and then resumed the following calendar day when it is not a scheduled sitting day, whereas the Senate seems to treat this as two separate sitting days.[69] In order to ‘put the matter beyond doubt’, the Sunsetting Review Committee put forward at Recommendation 45 the recommendation to amend the Legislation Act and/or the Acts Interpretation Act to define the term ‘sitting day’.[70]

Item 2 of Schedule 1 inserts a definition of ‘sitting day’ into the Acts Interpretation Act at proposed section 2M. Item 1 inserts a signpost definition of ‘sitting day’ into the existing definitions section (section 2B) and refers to proposed section 2M.

Proposed section 2M defines a ‘sitting day’ as a day on which the House actually sits. However, if the House sat without adjourning on a previous sitting day, any period where the House continues to sit with or without a suspension on a later day is taken to be part of the earlier sitting day, until the House adjourns. In other words, any period from the commencement of sitting to adjournment is considered to be one sitting day (even if this period stretches across multiple calendar days). Apart from its ordinary meaning, [71] adjournment is also taken to have occurred under proposed subsection 2M(3) when:

•       the Parliament is prorogued

•       that House is dissolved or

•       if that House is the House of Representatives—that House expires.

The Bill includes two examples in proposed section 2M, one for each House, showing how sitting days may be calculated in practice:

Example 1: The Senate begins sitting at 9 am on Thursday and extends (with or without a suspension of the sitting) until it is adjourned at 3 pm on Friday. Thursday is a sitting day for the Senate but Friday is not. This example applies equally to the House of Representatives.

Example 2: The House of Representatives begins sitting at 9 am on Wednesday and extends (with or without a suspension of the sitting) until it is adjourned at 1 am on Thursday. The House of Representatives then starts sitting again at 10 am on Thursday and adjourns at 3 pm on Thursday. Both Wednesday and Thursday are sitting days for the House of Representatives. This example applies equally to the Senate.

Calculation of sitting day period

The Bill also amends the Legislation Act to clarify the calculation of the ‘15 sitting day’ period in relation to disallowance provisions. Current section 42 relates to the disallowance of legislative instruments and provides that a legislative instrument is disallowed if a motion is moved by a House of Parliament within 15 sitting days after the instrument is laid before that House and either:

•       the Houses passes a resolution disallowing the instrument or provisions within 15 sitting days of that notice or

•       the notice is withdrawn or not dealt with at the end of the 15 sitting days.

Items 27, 30 and 33 of Schedule 1 of the Bill amend section 42 to insert the words ‘beginning on the first sitting day’ after each reference to ‘15 sitting days of that House’ to clarify when the sitting period begins when calculating the 15 day period in each of the above circumstances. As noted by the Explanatory Memorandum, these amendments reflect the current practice of the Parliament and the Executive in terms of the calculation of sitting periods.[72]

Items 39 and 40 of Schedule 1 make similar amendments to clarify the commencement of the sitting day period under current section 47 of the Legislation Act. This section stipulates that legislative instruments which are subject to disallowance are not to be remade unless certain circumstances are present.

Second review

As discussed in the ‘Background’ section of this Digest, the Legislation Act stipulates that a review of the sunsetting framework was required to be conducted in 2017. The Sunsetting Review Report noted:

… the sunsetting framework is still in the relatively early stages of operation. Further, many of the legislative instruments that have been through the sunsetting process were drafted more than three decades ago, leaving more scope for the benefits of updating the legislative instruments to outweigh the costs… As such, it may be appropriate to undertake a further review of the sunsetting provisions at a later date when more evidence of their operation can be gathered, noting that the last staged repeal of legislative instruments registered in bulk on 1 January 2005 will occur on 1 April 2020.[73]

As a result, Recommendation 3 of the Sunsetting Review Report recommended that another statutory review of the sunsetting provisions be undertaken by 1 October 2027.[74] Item 73 of Schedule 1 of the Bill implements this recommendation by amending subsections 60(1) and 60(4) to replace ‘2017’ with ‘2027’.

Exemptions from the sunsetting regime

Rules of court

Paragraph 8(8)(d) of the Legislation Act provides that rules of court and compilations of such rules are not legislative instruments and cannot become legislative instruments through registration. However, rules of court for the High Court of Australia, the Family Court of Australia, the Federal Court of Australia and the Federal Circuit Court of Australia are registered on the Federal Register of Legislation and treated, subject to some exceptions, as if they were legislative instruments. The relevant provisions of the courts’ enabling legislation are:

•         subsection 86(2) of the Judiciary Act 1903 for rules made by the High Court of Australia

•         subsection 59(4) of the Federal Court of Australia Act 1976 for rules made by the Federal Court of Australia

•         section 26E and subsections 37A(14) and 123(2) of the Family Law Act 1975 for rules made by the Family Court of Australia and

•         subsection 81(3) of the Federal Circuit Court of Australia Act 1999 for rules made by the Federal Circuit Court of Australia.

As noted in the ‘Position of major interest groups’ section of this Digest, the federal courts have had some concern around the sunsetting framework applying to rules of court.[75] The Sunsetting Review Report noted that rules of court already undergo continuous scrutiny and review by subject area experts, that the rationale for applying the sunsetting framework to these rules had not been set out in the explanatory materials accompanying the relevant Acts and that the separation of powers supports the recommendation to exempt these rules.[76]

Recommendations 34 and 35 of the Sunsetting Review Report recommended that rules of court should not be subject to sunsetting and that rules of court should be subject to the registration and publication requirements of the Legislation Act.[77]

Items 6-21 of Schedule 1 of the Bill implement Recommendations 34 and 35 of the Sunsetting Review Report by ensuring that rules made by each federal court are:

•       not subject to the sunsetting framework and

•       continue to be subject to the remaining parts of the Legislation Act, specifically publication and registration requirements.

The above items operate as follows:

•       items 6-12 amend the Family Law Act to change requirements for rules made by the Family Court

•       items 13-15 amend the Federal Circuit Court of Australia Act to change requirements for rules made by the Federal Circuit Court

•       items 16-18 amend the Federal Court of Australia Act to change requirements for rules made by the Federal Court and

•       items 19-21 amend the Judiciary Act to change requirements for rules made by the High Court.

The Explanatory Memorandum notes the importance of maintaining the registration and publication requirements of the Legislation Act with respect to rules of court as:

… this promotes access to justice by ensuring that an authoritative record of rules of court will continue to be freely accessible to the public from a central repository.[78]

Items 3-5 of Schedule 1 make consequential amendments to the Acts Interpretation Act to clarify that instruments can apply, adopt or incorporate the provisions of rules of court which are in force at a particular time or which are in force from time to time.[79]

Inclusion of territories in intergovernmental scheme exemption

Current subsection 54(1) of the Legislation Act provides that the sunsetting framework does not apply to a legislative instrument if the enabling legislation (other than the Corporations Act 2001):

•       facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more states and

•       authorises the instrument to be made by the body for the purposes of the body or scheme.

Current subsection 44(1) creates a similar exemption for these instruments from disallowance requirements. These provisions exist so as to prevent instruments from being unilaterally disallowed or sunsetted by the Commonwealth when they have been made for the purposes of a body or scheme across multiple jurisdictions.[80]

The Sunsetting Review Report recommended at Recommendation 36 that the above subsections be amended to include intergovernmental bodies and schemes involving the Commonwealth and one or more territories, in addition to bodies and schemes involving the Commonwealth and one or more states.[81] Item 34 of Schedule 1 amends paragraph 44(1)(a) and item 71 of Schedule 1 amends paragraph 54(1)(a) by inserting the words ‘or Territories’, thereby giving effect to this recommendation.

Other provisions

This section outlines some of the other amendments made by the Bill that may be of interest. This section is not comprehensive and does not cover all remaining amendments made by the Bill.

Correction of Errors on the Federal Register of Legislation

Section 15D of the Legislation Act relates to the correction of errors on the Federal Register of Legislation (the Register). Item 11 of Schedule 2 of the Bill repeals this section and inserts proposed sections 15D and 15DA, which relate to the rectification of the Register by the First Parliamentary Counsel and the requirement for re-tabling and a new disallowance period after the rectification of the Register respectively. The Explanatory Memorandum notes the purpose of the amendment contained in item 11 as being:

… to clarify the limits of the First Parliamentary Counsel’s power to rectify errors on the Federal Register of Legislation. The power to rectify errors ensures that the text of the law on the Register accurately reflects the law as passed by the Parliament or as made by a rule-maker. It does not give the First Parliamentary Counsel any power to correct errors that are in the original text of the law as passed by the Parliament or as made by a rule-maker.[82]

The rationale for this power is further highlighted in the Attorney-General’s second reading speech accompanying the Bill:

… error correction power ensures that administrative errors, such as lodgement of the incorrect version of an instrument or compilation for publication on the Register, can be rectified without requiring the rule-maker to repeal and remake the instrument.[83]

Proposed section 15DA provides for Parliamentary scrutiny for corrected instruments as the correct version of the instrument must be tabled in each House of Parliament within six sitting days after rectification. In addition, a new disallowance period is provided for, beginning on the date on which the correct version is laid before each House.

Retrospective commencement of instruments

One of the purposes of the Bill is to clarify that instruments made under the Legislation Act can operate retrospectively. The Attorney-General stated the following in relation to this proposed clarification in his second reading speech:

In particular, it [the Bill] will clarify that a provision in the Legislation Act allowing a legislative or notifiable instrument to commence before the instrument is registered operates despite any rule or principle of common law. Any retrospective commencement of a legislative or notifiable instrument, however, is displaced to the extent that the retrospective commencement adversely affects the rights or liabilities of a person other than the Commonwealth. This provides a protection against retrospectivity for adversely affected individuals without rendering an entire instrument or provision of an instrument ineffective in relation to all people both prospectively and retrospectively.[84]

Section 12 of the Legislation Act provides for the commencement of legislative and notifiable instruments and stipulates that an instrument may provide that any of its provisions can commence before the instrument itself is registered (subsection 12(3)). Items 5-8 of Schedule 2 of the Bill amend section 12 ‘to put beyond doubt that section 12 of the Legislation Act authorises the making of a legislative or notifiable instrument that commences retrospectively under any enabling legislation’.[85] Item 5 inserts proposed subsection 12(1A) which explicitly provides that an instrument, or a provision of that instrument, can commence before the instrument is registered ‘despite any principle or rule of common law’. Item 6 inserts proposed subsection 12(2) which maintains the current legislative requirement that any retrospective commencement does not apply to the extent that it disadvantages the rights of a person at the time of registration or imposes liabilities in respect of acts or omissions done before registration of the instrument. Items 7 and 8 make consequential amendments to section 12 as a result of items 5 and 6.

References to repealed and re-enacted provisions

The Bill clarifies the operation of references in legislation to repealed and re-enacted provisions. In his second reading speech, the Attorney-General highlights this proposal:

… this Bill will clarify 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.[86]

Items 1 and 2 of Schedule 2 of the Bill achieve this purpose by amending paragraphs 10(c) and 10A(c) of the Acts Interpretation Act. Section 10 of the Acts Interpretation Act relates to references to amended or re-enacted Acts and section 10A of that Act relates to references to amended or re-enacted laws of states and territories. Paragraphs 10(c) and 10A(c) stipulate that a reference to a repealed provision extends to any corresponding re-enacted provision. Items 1 and 2 insert the words ‘whether or not the re-enacted provision has the same number as the repealed provision’ into these subsections to ‘clarify that these provisions also apply to circumstances where a particular provision is re-enacted as a differently numbered provision, consistent with the original intention behind those provisions’.[87]

Consequential amendments

Part 2 of Schedule 2 of the Bill makes amendments to several Acts consequential to items 5 and 6 of Schedule 2. The following Acts are amended in this Part:

•       item 14 amends the Excise Act 1901

•       item 15 amends the Excise Tariff Act 1921

•       item 16 amends the Income Tax Assessment Act 1997

•       item 17 amends the Independent Contractors Act 2006

•       item 18 amends the Taxation Administration Act 1953 and

•       item 19 amends the Criminal Code Act 1995, however this item was contingent upon the National Security Legislation Amendment (Espionage and Foreign Interference) Act 2018 not having commenced when item 19 commences. That Act has now commenced, so item 19 is redundant.

Concluding comments

The Bill implements the legislative recommendations of the Sunsetting Review Report and effectively streamlines, clarifies and potentially improves the requirements around the existing sunsetting regulatory framework.

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[1].              Attorney-General’s Department (AGD): Civil Justice Policy and Programmes Division, Guide to managing sunsetting of legislative instruments (Sunsetting guide), AGD, Canberra, 2016, p. 3.

[2].              AGD, ‘Review of the Sunsetting Framework under the Legislation Act 2003’, AGD website.

[3].              Administrative Review Council, Rule making by Commonwealth agencies, Report to the Attorney-General, 35, March 1992.

[4].              Sunsetting Review Committee (SRC), Report on the operation of the sunsetting provisions in the Legislation Act 2003 (Sunsetting review report), Canberra, September 2017, p. 5.

[5].              AGD, Sunsetting guide, op. cit., p. 4.

[6].              Ibid., p. 13.

[7].              Ibid., p. 10.

[8].              Ibid., p. 3; SRC, Sunsetting review report, op. cit., p. 5.

[9].              See: Federal Register of Legislation (FRLI), ‘Lists of sunsetting legislative instruments’, FRLI website.

[10].              SRC, Sunsetting review report, op. cit., p. 5.

[11].              The Sunsetting Review Committee consisted of the Chief Operating Officer and Deputy Secretary of the Civil Justice and Corporate Group in AGD, the First Parliamentary Counsel of the Office of Parliamentary Counsel and the Chief Operating Officer and Deputy Secretary of the Department of Health (see p. ii of the Sunsetting review report).

[12].              AGD, Review of the operation of the sunsetting provisions in the Legislation Act 2003: consultation paper (Sunsetting review consultation paper), AGD, Canberra, May 2017, p. 1.

[13].              SRC, Sunsetting review report, op. cit., pp. 1–4.

[14].              C Porter, ‘Second reading speech: Legislation Amendment (Sunsetting Review and Other Measures Bill 2018)’, House of Representatives, Debates, 28 June 2018, p. 14.

[15].              SRC, Sunsetting review report, op. cit., p. 38; AGD, ‘Review of the Sunsetting Framework under the Legislation Act 2003’, op. cit.

[16].              AGD, Sunsetting review consultation paper, op. cit., p. 12.

[17].              AGD Family Law Branch, Submission to sunsetting review consultation paper, AGD, Canberra, n.d., p. 1; National Health and Medical Research Council (NHMRC), Submission to the Sunsetting review consultation paper, NHMRC, Canberra, n.d., p. 2; Department of the Environment and Energy (DEE), Submission to the Sunsetting review consultation paper, DEE, Canberra, 14 July 2017, p. 1; Infrastructure and Regional Development Portfolio, excluding the Civil Aviation Safety Authority (Infrastructure), Submission to the Sunsetting review consultation paper, Infrastructure, Canberra, n.d., p. 4.

[18].              The Treasury (Treasury), Submission to the Sunsetting review consultation paper, Treasury, Canberra, July 2017, p. 4.

[19].              Department of Finance (Finance), Submission to the Sunsetting review consultation paper, Finance, Canberra, n.d., p. 2; Office of Parliamentary Counsel (OPC), Submission to the Sunsetting review consultation paper, OPC, Canberra, 27 June 2017, p. 4.

[20].              The Standing Committee for the Scrutiny of Bills, the Standing Committee on Regulations and Ordinances and the Parliamentary Joint Committee on Human Rights (the Committees), Submission to the Sunsetting review consultation paper, The Senate, Canberra, 4 August 2017, p. 4.

[21].              AGD, Sunsetting review consultation paper, op. cit., p. 5.

[22].              Department of Communications and the Arts (DCA), Submission to the Sunsetting review consultation paper, DCA, Canberra, July 2017, p. 6; OPC, Submission to the Sunsetting review consultation paper, op. cit., p. 4; Infrastructure, Submission to the Sunsetting review consultation paper, op. cit., p. 4.

[23].              DEE, Submission to the Sunsetting review consultation paper, op. cit., p. 2.

[24].              AGD, Sunsetting review consultation paper, op. cit., p. 7.

[25].              DCA, Submission to the Sunsetting review consultation paper, op. cit., p. 9; Department of Immigration and Border Protection (DIBP), Submission to the Sunsetting review consultation paper, DIBP, Canberra, 30 June 2017, p. 5.

[26].              OPC, Submission to the Sunsetting review consultation paper, op. cit., p. 12.

[27].              Ibid.

[28].              Department of the House of Representatives (House of Representatives), Submission to the Sunsetting review consultation paper, House of Representatives, Canberra, 6 July 2017, pp. 1–2; B C Wright and P E Fowler, House of Representatives practice, Sixth edition, Canberra, 2012.

[29].              The Committees, Submission to the Sunsetting review consultation paper, op. cit., p. 6.

[30].              OPC, Submission to the Sunsetting review consultation paper, op. cit., p. 12; the Committees, Submission to the Sunsetting review consultation paper, op. cit., p. 12.

[31].              AGD, Sunsetting review consultation paper, op. cit., p. 6.

[32].              DIBP, Submission to the Sunsetting review consultation paper, op. cit., pp. 3–4.

[33].              AGD, Sunsetting review consultation paper, op. cit., p. 7.

[34].              DCA, Submission to the Sunsetting review consultation paper, op. cit., p. 8; NHMRC, Submission to the Sunsetting review consultation paper, op. cit., p. 4; Treasury, Submission to the Sunsetting review consultation paper, op. cit., p. 4.

[35].              OPC, Submission to the Sunsetting review consultation paper, op. cit., p. 9.

[36].              Paragraph 8(8)(d) of the Legislation Act 2003.

[37].              The courts’ enabling legislation provides for rules of court to be treated in this way. See section 26E and subsections 37A(14) and 123(2) of the Family Law Act 1975; subsection 81(3) of the Federal Circuit Court of Australia Act 1999; subsection 59(4) of the Federal Court of Australia Act 1976; and subsection 86(2) of the Judiciary Act 1903.

[38].              High Court of Australia, Federal Court of Australia, Family Court of Australia and Federal Circuit Court of Australia (the federal courts), Submission to the Sunsetting review consultation paper, the federal courts, Canberra, n.d., p. 4.

[39].              Ibid., p. 5.

[40].              Explanatory Memorandum, Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018 (Sunsetting Review Bill), p. 3.

[41].              The Statement of Compatibility with Human Rights can be found at pages 4–7 of the Explanatory Memorandum to the Bill.

[42].              SRC, Sunsetting review report, op. cit., p. 15.

[43].              Ibid.

[44].              Ibid., p. 18.

[45].              Ibid.

[46].              Explanatory Memorandum, Sunsetting Review Bill, p. 17.

[47].              See paragraph 54(2)(b) of the Legislation Act 2003 and sections 11 and 12 of the Legislation (Exemptions and Other Matters) Regulation 2015.

[48].              SRC, Sunsetting review report, op. cit., p. 17.

[49].              Ibid., p. 16.

[50].              Ibid., p. 18.

[51].              Ibid., p. 16.

[52].              Ibid.

[53].              Ibid.

[54].              Explanatory Memorandum, Sunsetting Review Bill, p. 23.

[55].              AGD, Sunsetting guide, op. cit., p. 10.

[56].              SRC, Sunsetting review report, op. cit., p. 19.

[57].              Ibid., p. 20.

[58].              Ibid.

[59].              Explanatory Memorandum, Sunsetting Review Bill, p. 23.

[60].              SRC, Sunsetting review report, op. cit., p. 20.

[61].              Ibid.

[62].              SRC, Sunsetting review report, op. cit., p. 23.

[63].              Ibid.

[64].              Ibid., p. 35.

[65].              Ibid.

[66].              Ibid.

[67].              Explanatory Memorandum, Sunsetting Review Bill, pp. 19–21.

[68].              SRC, Sunsetting review report, op. cit., pp. 35–36.

[69].              Ibid.

[70].              Ibid., p. 36.

[71].              Explanatory Memorandum, Sunsetting Review Bill, p. 9.

[72].              Ibid., p. 17.

[73].              SRC, Sunsetting review report, op. cit., p. 9.

[74].              Ibid.

[75].              High Court of Australia, Federal Court of Australia, Family Court of Australia and Federal Circuit Court of Australia (the federal courts), Submission to the Sunsetting review consultation paper, op. cit., p. 4.

[76].              SRC, Sunsetting review report, op. cit., p. 29.

[77].              Ibid.

[78].              Explanatory Memorandum, Sunsetting Review Bill, p. 11.

[79].              Ibid., p. 10.

[80].               Ibid., pp. 17, 25.

[81].              SRC, Sunsetting review report, op. cit., p. 30.

[82].              Explanatory Memorandum, Sunsetting Review Bill, p. 32.

[83].              C Porter, ‘Second reading speech’, op. cit., p. 15.

[84].              Ibid.

[85].              Explanatory Memorandum, Sunsetting Review Bill, p. 30.

[86].              C Porter, ‘Second reading speech’, op. cit., p. 15.

[87].              Explanatory Memorandum, Sunsetting Review Bill, p. 29.