Legislation (Christmas Island and Cocos (Keeling) Islands—Utilities and Services Instruments) Sunset-altering Declaration 2026

EXPLANATORY STATEMENT

INTRODUCTION

The Legislation (Christmas Island and Cocos (Keeling) Islands—Utilities and Services Instruments) Sunset-altering Declaration 2026 (the Declaration) is made under subsection 51A(1) of the Legislation Act 2003 (Cth) (the Legislation Act). It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. The Declaration is subject to the disallowance provisions of the Legislation Act.

OUTLINE

Sunsetting is the automatic repeal of legislative instruments after a fixed period. The Australian Government’s sunsetting framework is established under Part 4 of Chapter 3 of the Legislation Act. The purpose of the sunsetting framework is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.

Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration.

Under subsection 51A(1) of the Legislation Act, the Attorney-General may issue a declaration aligning the sunsetting days of two or more instruments, if satisfied on application by the rule-maker/s of the relevant instruments that:

1.       all the instruments to be reviewed:
   1.             would (in the absence of a declaration made under section 51A of the Legislation Act) be repealed by section 50 or 51 of the Legislation Act; and
   2.             are or will be the subject of a single review; and
2.       the making of the declaration will facilitate the undertaking of the review or the implementation of its findings. 

The objective of issuing a sunset-altering declaration is to facilitate either:

• the undertaking of a single review into the fitness-for-purpose of two or more thematically related legislative instruments, or
• the implementation of such a review’s findings.

The instruments will then be repealed on the day specified in the Declaration instead of the previously scheduled sunsetting days. This allows instruments to continue to be in force for a further but limited period of time after the date on which they would otherwise sunset. This reduces administrative burden as well as the possibility of legislative inconsistencies arising from reviewing and replacing related legislation at different times.

The Declaration aligns the sunsetting dates of the following instruments to 1 October 2031 (together, the Indian Ocean Territories Determinations):

1.       Christmas Island Utilities and Services (Electricity Supply and Services Fees) Determination 2016
2.       Christmas Island Utilities and Services (Vehicle Examination Fees) Determination 2019
3.       Christmas Island Utilities and Services (Water, Sewerage and Building Application Services Fees) Determination 2016
4.       Cocos (Keeling) Islands Utilities and Services (Electricity Supply and Services Fees) Determination 2016
5.       Cocos (Keeling) Islands Utilities and Services (Vehicle Examination Fees) Determination 2019
6.        Cocos (Keeling) Islands Utilities and Services (Water, Sewerage and Building Application Services Fees) Determination 2016

Without the Declaration, the instruments listed at (a), (c), (d) and (f) would have sunset on 1 October 2026 and the instruments listed at (b) and (e) would have sunset on 1 April 2030.

The ability to align sunsetting dates is an integral part of the sunsetting framework. It provides the necessary flexibility to ensure the standard 10-year sunsetting period does not result in unintended consequences or impose an unreasonable administrative burden on Commonwealth agencies or the Parliament. Aligning the sunsetting dates of the Indian Ocean Territories Determinations will enable the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts (the Department) to conduct a thematic review of the instruments. The alignment of these sunsetting dates would provide an opportunity to review the instruments, and the broader cost recovery arrangements for the delivery of services in the Indian Ocean Territories, to ensure that the approach being taken is cohesive and aligned with current and future community and business needs and to ensure that the legislative framework is streamlined and efficient.

PROCESS BEFORE DECLARATION WAS MADE

Regulatory impact analysis

Sunset-altering declarations are machinery of government instruments, and are therefore not subject to the regulatory impact assessment requirements set out by the Office of Impact Analysis (OIA). The OIA reference for this standing exemption is ID19633.

Consultation before making

Before the Declaration was issued, the Attorney‑General considered the general obligation to consult imposed by section 17 of the Legislation Act.

The Indian Ocean Territories Determinations are made under the Christmas Island Utilities and Services Ordinance 2016 and the Cocos (Keeling) Islands Utilities and Services Ordinance 2016. These Ordinances are made under the Christmas Island Act 1958 and the Cocos (Keeling) Islands Act 1955.

The Indian Ocean Territories Determinations determine, for the purpose of the Ordinances, fees to be charged for the supply of utilities and services provided by or on behalf of the Administrator of Christmas Island and the Cocos (Keeling) Islands. Charging fees enables the Commonwealth to recover its costs in supplying utilities and services to the residents of the Indian Ocean Territories.

A thematic review of the Indian Ocean Territories Determinations will enable the Department to consider the broader cost recovery arrangements for the delivery of services in the Indian Ocean Territories. The Department will also consider the design and implementation of both existing and potential future charging activities, consistent with the Australian Government’s charging framework, and taking into account broader policy outcomes and relevant public interest considerations.

The Department (working with the Administrator) will undertake stakeholder consultation with Commonwealth agencies, the government of Western Australia and with the local governments in the Indian Ocean Territories. It will also engage with local communities living in the Indian Ocean Territories.

Alignment declarations are machinery in nature, and enable legislative instruments that would otherwise sunset to remain in force for a further, but strictly limited, period of time. Any replacement instruments will be subject to further consultation and parliamentary oversight, including oversight of whether adequate consultation occurred with persons likely to be affected by the replacement instruments. As such, given that alignment of the sunsetting date of the Indian Ocean Territories Determinations is consistent with the policy intent of the sunsetting regime and does not significantly alter existing arrangements, appropriate consultation has occurred for the purposes of section 17 of the Legislation Act.

Statutory preconditions relevant to the certificate

In order to align the sunsetting day of two or more instruments, the Attorney-General must be satisfied on written application from the relevant rule-maker/s that the statutory conditions in paragraphs 51A(1)(a) and (b) of the Legislation Act are met. The statutory conditions are that:

1.         all the instruments to be reviewed:
   1.         would (in the absence of a declaration made under section 51A of the Legislation Act) be repealed by section 50 or 51 of the Legislation Act; and 
   2.       are or will be the subject of a single review; and
2.        the making of the declaration will facilitate the undertaking of the review or the implementation of its findings. 

In terms of process, the Legislation Act requires:

1.         the responsible rule-maker/s to apply to the Attorney-General;
2.        the Attorney-General to be satisfied of the statutory conditions; and
3.         the Attorney-General to make a declaration, which is a legislative instrument and subject to disallowance.

The rule-maker for the Indian Oceans Territories Determinations, the Administrator of Christmas Island and the Cocos (Keeling) Islands, Ms Farzian Zainal, provided a written application to the Attorney‑General seeking a declaration of alignment of the sunsetting days for the instruments. On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the criteria in paragraphs 51A(1)(a) and (b) of the Legislation Act are met.

Statement of Reasons for issuing of the Certificate

For the purposes of subsection 51A(4) of the Legislation Act, this section sets out the statement of reasons for the issue of the certificate.

The Declaration aligns the sunsetting dates for the Indian Ocean Territories Determinations to enable the Department to conduct a thematic review of the instruments.

The Indian Ocean Territories Determinations determine, for the purpose of the Christmas Island Utilities and Services Ordinance 2016 and the Cocos (Keeling) Islands Utilities and Services Ordinance 2016, fees to be charged for the supply of utilities and services provided by or on behalf of the Administrator of Christmas Island and the Cocos (Keeling) Islands.

The Department intends to undertake a thematic review of the Indian Ocean Territories, and the wider legislative framework that provides for the delivery of services in the Indian Ocean Territories. The objective of the review is to:

• ensure that the Indian Ocean Territories Determinations are charging fees at correct rates, in line with the current economic climate;
• ensure that legislation concerned with the Indian Ocean Territories appropriately considers a whole‑of‑government perspective;
• ensure that the legislation is updated to ensure it continues to meet its original aims;
• ensure that the legislation efficiently facilitates financially sustainable outcomes and services that reflect the specific context of the Indian Ocean Territories;
• thematically align the legislation to simplify and reduce regulatory burden and promote clearer laws;
• facilitate stakeholder engagement; and
• introduce legislative flexibility where possible, in order to reduce administrative burden.

A thematic review will facilitate an efficient and effective review process and enable consistent implementation of review findings. As such, the Declaration is consistent with the policy intent of the sunsetting regime that legislative instruments should be kept up to date and only remain in force so long as they are needed.

More information

Further details on the provisions of the Declaration are provided in Attachment A.

The Indian Ocean Territories Determinations, which will now sunset on 1 October 2031 as specified in the Declaration, are available on the Federal Register of Legislationhttp://www.comlaw.gov.au.

Further information may be requested from the Attorney‑General’s Department about the operation of the Declaration, and from the Department of Infrastructure, Transport, Regional Development, Communications, Sport and the Arts about the instruments to which the Declaration applies.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Legislation (Christmas Island and Cocos (Keeling) Islands—Utilities and Services Instruments) Sunset-altering Declaration 2026 (the Declaration) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Human Rights Act).

Overview of the Declaration

The Declaration is made under subsection 51A(1) of the Legislation Act 2003 (the Legislation Act). Under that subsection, the Attorney-General can align the sunsetting days of two or more legislative instruments to 1 April or 1 October of a year that is up to five years later than the earliest sunsetting day. The instruments specified in the declaration will then be repealed on the day specified in the declaration instead of the previously scheduled sunsetting day. The instruments specified in the Declaration are (together, the Indian Ocean Territories Determinations):

1.       Christmas Island Utilities and Services (Electricity Supply and Services Fees) Determination 2016
2.       Christmas Island Utilities and Services (Vehicle Examination Fees) Determination 2019
3.       Christmas Island Utilities and Services (Water, Sewerage and Building Application Services Fees) Determination 2016
4.       Cocos (Keeling) Islands Utilities and Services (Electricity Supply and Services Fees) Determination 2016
5.       Cocos (Keeling) Islands Utilities and Services (Vehicle Examination Fees) Determination 2019
6.        Cocos (Keeling) Islands Utilities and Services (Water, Sewerage and Building Application Services Fees) Determination 2016

The Declaration aligns the sunsetting dates of the Indian Ocean Territories Determination to 1 October 2031. Prior to the making of the Declaration, the instruments listed at (a), (c), (d) and (f) would have sunset on 1 October 2026 and the instruments listed at (b) and (e) would have sunset on 1 April 2030. The objective of issuing the Declaration is to facilitate the undertaking of a thematic review.

Human Rights Implications

The Indian Ocean Territories Determinations engage certain rights and freedoms declared by the international instruments set out in section 3 of the Human Rights Act.

The Indian Ocean Territories Determinations engage the rights contained in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). Article 11(1) of the ICESCR provides the right of individuals and families to an adequate standard of living and to the continuous improvement of living conditions. By providing for the supply of utilities for personal and domestic use, the Indian Ocean Territories Determinations promotes the rights of individuals to an adequate standard of living.

Therefore, overall, the Indian Ocean Territories Determinations are compatible with human rights because they promote, rather than limit, human rights.

Before issuing the Declaration, the Attorney‑General was satisfied that all instruments specified in the Declaration would be subject to a single thematic review. A thematic review is an effective mechanism for determining whether the instruments are fit for purpose, identifying opportunities to update, streamline and clarify the operation of the instruments and, where appropriate, reducing unnecessary regulation. Instruments that are replaced will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the Indian Ocean Territories Determinations will be assessed at the time any replacement instruments are made, including through the requirement to prepare a further Statement of Compatibility with Human Rights.

Conclusion

The Declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act, as it promotes the protection of human rights. Any proposal to make a replacement instrument will be subject to parliamentary oversight and scrutiny.

ATTACHMENT A

NOTES ON THE DECLARATION 

Section 1 Name

This section provides for the declaration to be named the Legislation (Christmas Island and Cocos (Keeling) Islands—Utilities and Services Instruments) Sunset-altering Declaration 2026 .The declaration may be cited by that name.

Section 2  Commencement

This section provides for the declaration to commence on the day after it is registered.

Section 3 Authority

This section provides that the declaration is made under subsection 51A(1) of the Legislation Act 2003.

Section 4 Aligning of sunsetting

This section provides that the following instruments are repealed by section 51A of the Legislation Act 2003 on 1 October 2031:

1.       the Christmas Island Utilities and Services (Electricity Supply and Services Fees) Determination 2016
2.       the Christmas Island Utilities and Services (Vehicle Examination Fees) Determination 2019
3.       the Christmas Island Utilities and Services (Water, Sewerage and Building Application Services Fees) Determination 2016
4.       the Cocos (Keeling) Islands Utilities and Services (Electricity Supply and Services Fees) Determination 2016
5.       the Cocos (Keeling) Islands Utilities and Services (Vehicle Examination Fees) Determination 2019
6.        the Cocos (Keeling) Islands Utilities and Services (Water, Sewerage and Building Application Services Fees) Determination 2016

1 October 2031 is the aligned sunsetting day for those instruments, which would otherwise have sunset on 1 October 2026 (for the instruments listed at (a), (c), (d) and (f)), and 1 April 2031 (for the instruments listed at (b) and (e)).

Section 5 Repeal of this instrument

This section provides that the certificate is repealed at the start of 2 October 2031. This ensures that the declaration is not in force any longer than is necessary.