Introductory Info
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.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:
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:
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.