Principle (k): Exemption and deferral from sunsetting

Overview

Senate standing order 23(3)(k) requires the committee to scrutinise each instrument as to whether it is exempt from the sunsetting provisions of the Legislation Act 2003 (the 'Legislation Act'). In addition, the committee will scrutinise instruments which defer the sunsetting date of another instrument. Under this principle, the committee will typically be concerned with instruments which:

  • are exempt from the sunsetting provisions of the Legislation Act;
  • contain measures that will remain in force within a principal instrument that is exempt from sunsetting; and
  • defer the sunsetting date of another instrument.

Exemption from sunsetting

Section 50 of the Legislation Act provides that all legislative instruments registered on the Federal Register of Legislation after 1 January 2005 are automatically repealed ten years after registration. This process is called 'sunsetting'. The committee considers that the current sunsetting framework provides an important opportunity for the Parliament to maintain effective and regular oversight of its delegated legislative powers and ensures that the content of legislative instruments remains current and fit for purpose. In this way, the regime promotes parliamentary supremacy.

The committee considers that delegated legislation should be subject to sunsetting unless there are exceptional circumstances. The committee will scrutinise each instrument as to whether the exemption is appropriate.

The committee is particularly concerned about the following:

  • instruments that are exempt under one of the broad classes of exemptions in section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015;
  • instruments that are exempt under the blanket exemption of instruments facilitating the establishment or operation of an intergovernmental body or scheme in section 54(1) of the Legislation Act;
  • an exempt instrument that overrides or modifies primary legislation;
  • an exempt instrument that triggers, or is a pre-condition to, the imposition of custodial penalties or significant pecuniary penalties;
  • an exempt instrument that restricts or limits individual rights and liberties;
  • an exempt instrument that facilitates the expenditure of public money on an ongoing basis; and
  • an exempt instrument that otherwise contains a matter requiring parliamentary oversight.

To assess whether an instrument is appropriately exempt from sunsetting, the committee expects the explanatory statement to identify the specific legislative authority for the exemption and explain the exceptional circumstances that justify the exemption.

Deferral of sunsetting date

Section 51 of the Legislation Act provides that the Attorney‑General may defer the sunsetting of an instrument in certain circumstances.

Where an instrument defers the sunsetting date of another instrument, the explanatory statement to the instrument should set out how the deferral of sunsetting meets the requirements of section 51 of the Legislation Act and should explain why the deferral is necessary and appropriate.

Explanatory statement checklist

The following checklist summarises what should be included in an instrument's explanatory statement under scrutiny principle (k).

Exemption from sunsetting

Where an instrument is exempt from sunsetting, or contains measures that will remain in force within a principal instrument that is exempt from sunsetting, the explanatory statement should:

  • identify the specific legislative authority for the exemption; and
  • explain the exceptional circumstances that justify the exemption.
Deferral of sunsetting date

Where an instrument defers the sunsetting date of another instrument, the explanatory statement should:

  • explain how the deferral of sunsetting meets the requirements of section 51 of the Legislation Act; and
  • explain why the deferral is necessary and appropriate.

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