Legislation (Deferral of Sunsetting—Airport Instruments) Amendment Certificate 2025

Legislation (Deferral of Sunsetting—Airport Instruments) Amendment Certificate 2025

EXPLANATORY STATEMENT

Issued by the Attorney-General in compliance with
section 15G of the Legislation Act 2003

INTRODUCTION

The Legislation (Deferral of Sunsetting—Airport Instruments) Amendment Certificate 2025 (the Amendment Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003 (the Legislation Act). It amends the Legislation (Deferral of Sunsetting—Airport Instruments) Certificate 2022 (the Principal Certificate). It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. The Amendment Certificate will be subjected to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the Amendment Certificate is after the first anniversary of the originally scheduled sunsetting day, which means that subsection 51(4) of that Act (which provides an exemption for disallowance for deferrals of 12 months or less) does not apply.

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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration.

Under paragraph 51(1)(c) of the Legislation Act the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either 6, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day. 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 removes the administrative burden of remaking instruments which would have a limited duration prior to their repeal and potential replacement, or where circumstances prevent the making of replacement instruments prior to the sunsetting day.

Through the operation of subsection 33(3) of the Acts Interpretation Act 1901, the Attorney‑General’s power under paragraph 51(1)(c) includes the power to repeal, rescind, revoke, amend or vary such a certificate.

The Amendment Certificate amends the Principal Certificate, extending the previously granted deferral of sunsetting for the following instruments by an additional 12 months, resulting in a deferral of 24 months in total (together, the Airport Instruments):

1.       Airports (Building Control) Regulations 1996 (Building Control Regulations)
2.       Airports (Environment Protection) Regulations 1997 (Environment Protection Regulations).

The Airport Instruments, for which the original sunsetting date of 1 April 2019 was extended by a sunset-altering declaration by 5 years to 1 April 2024, then further deferred by 12 months to 1 April 2025, will now sunset on 1 April 2026.

The ability to defer 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. In this case, the Airport Instruments are expected to be remade within 24 months of the sunsetting date as a result of a review and consultation currently underway by the Department of Infrastructure, Transport, Regional Development, Communication and the Arts (the department). If the Amendment Certificate were to be disallowed, there would not be enough time to complete the review, undertake consultation and remake the Instruments prior to the sunsetting day.

PROCESS BEFORE CERTIFICATE WAS MADE

Regulatory impact analysis

Certificates of deferral of sunsetting 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 Amendment Certificate was issued, the Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act.

The Airport Instruments are made under the Airports Act 1996.

The Building Control Regulations set out a regime for planning and building controls on airports and on-airport land use. It provides for the approval of building activities and other works at federally leased airports by an airport building controller, and certification of the resulting buildings and structures. Specifically, the instrument provides greater detail on information which must be included in a building activity application, the processes by which these applications are to be assessed and decided, and the responsibilities of all parties involved.

The Environment Protection Regulations establish a Commonwealth system for the regulation of environmental management at federally leased airports, specifically including the regulation of activities that may generate soil, water or air pollution, or excessive noise. The instrument promotes the improvement of environmental management practices for activities on airport sites. It supports a well-established network of Airport Environment Officers and these regulators ensure that Airport Lessee Companies at 20 federally leased airports manage their environmental obligations.

Certificates of deferral 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. This will minimise the administrative burden on stakeholders associated with consultation on a deferral that will only have effect for a limited amount 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.

The Amendment Certificate will allow sufficient time for the department to complete its review of the Airport Instruments. The Amendment Certificate will avoid the need to remake the Airport Instruments in their current form for the short period of time before they are repealed and replacement instruments are made. As such, given that deferral of the sunsetting date of the Airport Instruments 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 Amendment Certificate

If the statutory conditions in section 51 of the Legislation Act are met, an instrument’s sunsetting day can be deferred for 6, 12, 18 or 24 months by means of a certificate made under that section. In terms of process, the Legislation Act requires:

1.       the responsible rule-maker to apply to the Attorney-General in writing, and
2.       the Attorney-General to be satisfied that:

1.      the instrument would (apart from the operation of the sunsetting provisions) be likely to cease to be in force within 24 months after its sunsetting day
2.    the proposed replacement instrument will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen and avoided
3. 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, or
4. the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to that instrument, and

1.       the Attorney-General to issue a certificate. The explanatory statement for the certificate must include a statement of reasons for the issue of the certificate.

The rule-maker for the Airport Instruments, the Minister for Infrastructure, Transport, Regional Development and Local Government, the Hon Catherine King MP (the Minister), provided a written application to the Attorney‑General seeking an amendment of the previous deferral certificate to extend the deferral of sunsetting for Instruments for a further 12 months, making a total of 24 months. On the basis of the information contained in the statement of reasons below, the Attorney‑General is satisfied that the Airport Instruments would, apart from the operation of Part 4 of Chapter 3 of the Legislation Act, be likely to cease to be in force within 24 months after their sunsetting day. As such, the criterion in subparagraph 51(1)(b)(i) of the Legislation Act is met.

Statement of Reasons for issuing of the Amendment Certificate

For the purposes of subsection 51(5) of the Legislation Act this section sets out the statement of reasons for issuing the Amendment Certificate.

On 24 August 2018, the Attorney-General issued the Legislation (Airport Instruments) Sunset‑altering Declaration 2018. This instrument aligned the sunsetting date of the Airport Instruments, alongside 8 other similar instruments, from 1 April 2019 to 1 April 2024. This was done in order to facilitate a single thematic review of the instruments.

On 25 March 2022, the Attorney‑General issued the Principal Certificate under section 51 of the Legislation Act, deferring the sunsetting of the Airport Instruments, alongside one other similar instrument, from 1 April 2024 to 1 April 2025. The Minister subsequently sought the Attorney‑General’s approval to further defer the sunsetting of the Airport Instruments by a further 12 months through the issuing of an Amendment Certificate. The new sunsetting date for the Airport Instruments is 1 April 2026.

Deferring the sunsetting date will allow additional time to complete the extensive consultation required on the proposed changes to the instruments before they are remade.

Both the Building Control Regulations and the Environment Protection Regulations are made under the Airports Act 1996. The Building Control Regulations set out a regime for planning and building controls on federally leased airports and on-airport land use. The Environment Protection Regulations establish a Commonwealth system for the regulation of environmental management at federally leased airports.

The department is consulting extensively with a range of affected stakeholders including airports, airport building controllers, airport environment officers and other airport industry bodies, as well as territory and local government planning authorities near airports on the proposed changes to both instruments. The department expects to complete consultation with stakeholders and remake the regulations within 12 months of the current sunsetting date of 1 April 2025.

Accordingly, the Airport Instruments will likely cease to be in force in their current form within 24 months of their current sunsetting date.

More information

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

As the Amendment Certificate is a purely amending instrument, it will be automatically repealed by the operation of section 48A of the Legislation Act at the conclusion of the disallowance period.

The Airport Instruments, which will now be repealed on a later day as specified in the Amendment Certificate, are available on the Federal Register of Legislation.

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

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Legislation (Deferral of Sunsetting—Airport Instruments) Amendment Certificate 2025 (the Amendment Certificate) 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 Amendment Certificate

The Amendment Certificate is made under paragraph 51(1)(c) of the Legislation Act 2003. Under that paragraph the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of either 6, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the originally scheduled sunsetting day.

Through the operation of subsection 33(3) of the Acts Interpretation Act 1901, the Attorney‑General’s power under paragraph 51(1)(c) includes the power to repeal, rescind, revoke, amend or vary such a certificate.

The Amendment Certificate amends the Principal Certificate, extending the previously granted deferral of sunsetting for the following instruments by an additional 12 months, resulting in a deferral of 24 months in total (together, the Airport Instruments):

1.       Airports (Building Control) Regulations 1996
2.       Airports (Environment Protection) Regulations 1997.

The Airport Instruments, for which the previous sunsetting day was 1 April 2025, will now sunset on 1 April 2026.

The Airport Instruments are expected to be repealed and replaced within 24 months of their scheduled sunsetting day as part of a review of the legislative framework.

The Amendment Certificate allows the Airport Instruments to continue to be in force for a further, but limited, period of time when they would otherwise sunset. This removes the administrative burden of remaking the Instruments which would have a limited duration prior to their expected repeal and replacement, or where circumstances prevent the making of a replacement instrument prior to the sunsetting day.

Human Rights Implications

An amending certificate of deferral of sunsetting extends the operation of the instruments but does not change or affect the rights engaged under the original instruments.

The Airport Instruments engage certain rights and freedoms declared by the international instruments set out in section 3 of the Human Rights Act.

The Right to Privacy

The right to privacy is negatively engaged by the Building Control Regulations as it collects personal information from individual and corporate proponents who make application for building approvals. However, the collection of personal information is proportionate to achieve the policy objectives of the instrument, which have the effect of protecting other rights (including the right to health, right to quiet enjoyment of property and the right to an adequate standard of living) and compliant with the Privacy Act 1988.

The Environment Protection Regulations also negatively engages this right by collecting personal information from individual and corporate proponents who apply for authorisations or local standards. However, this collection of personal information is proportionate to achieve the policy objectives of the instrument, which have the effect of protecting other rights (including the right to health, right to quiet enjoyment of property and the right to an adequate standard of living) and compliant with the Privacy Act 1988.

The Right to Health and the Right to an Adequate Standard of Living

The right to health is positively engaged by both Airport Instruments as they ensure safe and healthy working conditions in non-residential buildings on federally leased airport sites. The right to an adequate standard of living is also positively engaged as the Instruments ensure buildings on federally leased airport sites are constructed and maintained to a standard suitable for occupation. The Environment Protection Regulations further regulate against unsafe levels of air, soil and water pollutions and noise generated by activities at the airport.

The Right to Freedom of Expression

The Building Control Regulations negatively engages this right by placing non-disclosure obligations on Airport Building Controllers. Similarly, the Environment Protection Regulations negatively engages the right to freedom of expression as it places non-disclosure obligations on Airport Environment Officers. However, both these non-disclosure requirements are reasonable, proportionate and necessary to respect the rights and reputations of others (including protecting the right to privacy through protecting confidentiality) and the protection of public order.

The Right to Privacy and Quiet Enjoyment of Property

The right to privacy and quiet enjoyment of property is negatively engaged by the Building Control Regulations as it allows airport building controllers to inspect building activities to ensure they adhere to appropriate standards and meet conditions outlined in building approvals. Authorised persons may also enter the offices of an airport building controller to inspect the register of building applications in order to provide oversight of the approval process. However, these rights of entry are reasonable, proportionate and necessary to achieve the policy objectives of the instrument, which have the effect of protecting other rights (including the right to health and the right to an adequate standard of living).

The Environment Protection Regulations also negatively engage this right by allowing Airport Environment Officers to enter the premises of any airport tenant to perform necessary remedial work if the tenant has not complied with an order for remedial work within a reasonable period or in the interests of public health and safety or other urgency. However, this right of entry is reasonable, proportionate and necessary to achieve the policy objectives of the instrument, which have the effect of protecting other rights (including the right to health and the right to an adequate standard of living).

Therefore, overall, the Airport Instruments are compatible with human rights because they positively promote and engage some rights. To the extent that the engagement is negative and limits human rights, those limitations are reasonable, necessary and proportionate to achieving the objective of establishing a system for the regulation of environmental management at federally leased airports.

Before issuing the Amendment Certificate, the Attorney-General was satisfied that the Airport Instruments would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months of their sunsetting date. Issuing a certificate of deferral therefore avoids the need to replace the Instruments in their current form for a short period of time before they are expected to be repealed and replaced.

Any replacement instrument will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the remade Airport Instruments will be assessed at the time they are made, including through the requirement to prepare a Statement of Compatibility with Human Rights.

Conclusion

This Amendment Certificate is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act, because to the extent that it limits human rights, those limitations are reasonable, necessary and proportionate to achieving the objective of regulating building construction and maintenance, and environmental management at federally leased airports.

ATTACHMENT A

NOTES ON THE AMENDMENT CERTIFICATE

Section 1  Name

This section provides that the Amendment Certificate is named the Legislation (Deferral of Sunsetting—Airport Instruments) Amendment Certificate 2025. The Amendment Certificate may be cited by this name.

Section 2  Commencement

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

Section 3  Authority

This section provides that the Amendment Certificate is made under paragraph 51(1)(c) of the Legislation Act 2003.

Section 4  Schedules

This section provides that each instrument specified in a Schedule to the Amendment Certificate is amended or repealed as set out in that Schedule, and any other items have effect according to their terms.

Schedule 1      Amendments

This schedule sets out the amendments to the Principal Certificate that are necessary to further defer the sunsetting of the following instruments to 1 April 2026:

1.       Airports (Building Control) Regulations 1996
2.       Airports (Environment Protection) Regulations 1997.

Item 1                         Subsection 4(1)

This item amends subsection 4(1) of the Principal Certificate by substituting the sunsetting date of 1 April 2025 with the amended date of 1 April 2026.

Item 2                         Subsection 4(1) (at the end of the note)

This item adds to the note in subsection 4(1) of the Principal Certificate to recognise that the sunsetting date before the Amendment Certificate was 1 April 2025.