Legislation (Deferral of Sunsetting—AusCheck Regulations) Certificate 2026

Legislation (Deferral of Sunsetting—AusCheck Regulations) Certificate 2026

EXPLANATORY STATEMENT

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

INTRODUCTION

The Legislation (Deferral of Sunsetting—AusCheck Regulations) Certificate 2026 (the Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003 (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 Certificate will be subjected to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the 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 from 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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration.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The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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.

The Certificate defers the sunsetting date of the AusCheck Regulations 2017 (the AusCheck Regulations) by 24 months from 1 October 2027 to 1 October 2029.

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 AusCheck Regulations are expected to be remade within 24 months of the sunsetting date as a result of a review by the Department of Home Affairs. If the Certificate were to be disallowed, there would not be enough time to review and remake the AusCheck Regulations 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 Certificate was issued, the Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act.

The AusCheck Regulations are made under the AusCheck Act 2007 (the AusCheck Act). The AusCheck Act and Regulations establish the AusCheck framework for coordinating and conducting certain criminal, security and other background checking. The AusCheck background checking framework is a critical component of Australia’s aviation, maritime, and security-sensitive biological agent security framework. A wholesale review of the AusCheck background checking framework is being scoped. Reforms to the current framework would aim to better align current operational requirements with whole-of-government security policy and vetting reforms.

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. The deferral will minimise the administrative burden on stakeholders associated with consultation to remake an instrument that will only have effect for a limited amount of time. Any replacement instrument 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 instrument.

A 24-month deferral will allow sufficient time for the Department of Home Affairs to review the AusCheck background checking framework and will avoid the need to remake the AusCheck Regulations in their current form for the short period of time before they are repealed and a replacement instrument is made. As such, given that deferral of the sunsetting date of the AusCheck Regulations 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

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
3.       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 AusCheck Regulations, the Minister for Home Affairs, the Hon Tony Burke MP, provided a written application to the Attorney‑General seeking a certificate of deferral of sunsetting for the AusCheck Regulations. On the basis of the information contained in the statement of reasons below, the Attorney‑General is satisfied that the AusCheck Regulations 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 Certificate

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

The Certificate defers the sunsetting date of the AusCheck Regulations by 24 months to 1 October 2029 as the AusCheck Regulations will likely cease to be in force in their current form within 24 months of their original sunsetting date due to a review of the AusCheck background checking framework.

The AusCheck background checking framework was originally established in 2007 with a focus on coordinating the background criminal and security assessment for applications for the aviation security identification card and the maritime security identity card. Since 2007, AusCheck has expanded its operations beyond these schemes to include the following:

• Security Sensitive Biological Agents associated with national security (SSBA scheme)
• Major National Events (MNE scheme)
• Security of Critical Infrastructure (SOCI scheme); and
• United States’ Global Entry Program (GEP scheme).

With these expansions and changes to AusCheck operations, the Department of Home Affairs has determined the need for a wholesale review of the legal framework supporting AusCheck’s operations to ensure AusCheck can operate in the most efficient and effective manner.

A 24-month deferral will allow sufficient time for the Department of Home Affairs to review the AusCheck background checking framework and will avoid the need to remake the AusCheck Regulations in their current form for the short period of time before it is repealed and a replacement instrument made, informed by the outcome of the review.

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

More information

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

The AusCheck Regulations which are subject to the Certificate, and which will now sunset at a later day as specified in the 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 Certificate, and from the Department of Home Affairs about the instrument to which the Certificate applies.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Legislation (Deferral of Sunsetting—AusCheck Regulations) Certificate 2026 (the 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 Certificate

The 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. The instrument specified in the Certificate is the AusCheck Regulations 2017 (the AusCheck Regulations).

The AusCheck Regulations are expected to be repealed and replaced within 24 months of their scheduled sunsetting day.

The Certificate allows the AusCheck Regulations 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 instrument, which would have a limited duration prior to its expected repeal and replacement, or where circumstances prevent the making of a replacement instrument prior to the sunsetting day.

Human Rights Implications

A certificate of deferral of sunsetting extends the operation of the instrument but does not change or affect the rights engaged under the original instrument.

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

The AusCheck Regulations engage the right to equality and non-discrimination in Article 2(1) and Article 26 of the International Covenant on Civil and Political Rights (ICCPR) and in Article 2(2) of the International Covenant on Economic, Social and Cultural Rights (ICESCR).

The AusCheck Regulations allow AusCheck to give advice about background checks of individuals, including an assessment of an individual’s criminal history information. This assessment informs the eligibility of an individual to access secure areas of airports, seaports, facilities that handle Security Sensitive Biological Agents associated with national security and to work at Major National Events. The differential treatment by AusCheck of individuals on the basis of criminal history is a limit on the right to equality and non-discrimination contained in the ICCPR and the ICESCR. However, the limitation of these rights is reasonable, necessary and proportionate as it does not capture all individuals with a criminal history, because the criterion for security-relevant offences is explicitly stated in legislation, and because security-related offences are serious offences that present a threat to national security and public order.

The AusCheck Regulations engage the right to an effective remedy, the right to justice and the right to a fair trial in Article 2(3) and 14 of the ICCPR. The AusCheck Regulations provide a right of appeal for an applicant who receives an unfavourable criminal history decision. Applicants can appeal to the Administrative Review Tribunal, which is able to set aside, remit or affirm the original decision. The Department of Home Affairs considers that the engagement of the right to an effective remedy, the right to justice and the right to a fair trial partially addresses concerns with the limitation of the right to equality and non-discrimination by providing affected individuals with a means to challenge the limitation of those rights.

The AusCheck Regulations engage the right to privacy in Article 17(1) of the ICCPR and Article 16 of the Convention on the Rights of the Child (CRC). Section 13 of the AusCheck Act authorises the AusCheck Regulations to provide for the collection, use, storage and disclosure of personal information including criminal history information. The AusCheck Regulations provide guidelines to ensure that the use of an individual’s personal information is reasonable and proportionate. Additional safeguards apply to children aged 16 years and under. The limitation of the right to privacy is reasonable, necessary and proportionate to achieve a legitimate objective, being the protection of national security.

The AusCheck Regulations engage the right to work in Article 6(1) of the ICESCR. An AusCheck assessment of an individual’s criminal history may lead to a recommendation that an individual is ineligible to hold certain security cards, which in turn may limit employment opportunities in secure zones such as airports and seaports. To the extent that an AusCheck assessment may limit the right to work, the limitation is proportionate as the failure to be issued a particular security card only affects the person’s ability to work or volunteer in a secure zone and does not impact any other employment. The limitation of the right to work is reasonable, necessary and proportionate to achieve a legitimate objective, being the protection of national security.

Therefore, overall, the AusCheck Regulations are compatible with human rights because, to the extent that the instrument may limit human rights, those limitations are reasonable, necessary and proportionate.

Before issuing the Certificate, the Attorney-General was satisfied that the AusCheck Regulations 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 instrument in its current form for a short period of time before it is expected to be repealed and replaced.

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 remade AusCheck Regulations will be assessed at the time they are made, including through the requirement to prepare a Statement of Compatibility with Human Rights.

Conclusion

This 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, as to the extent that the instrument may limit human rights, those limitations are reasonable, necessary and proportionate. Any proposal to make a replacement instrument will be subject to parliamentary oversight and scrutiny.

ATTACHMENT A

NOTES ON THE CERTIFICATE

Section 1  Name

This section provides that the Certificate is named the Legislation (Deferral of Sunsetting—AusCheck Regulations) Certificate 2026. The Certificate may be cited by this name.

Section 2  Commencement

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

Section 3  Authority

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

Section 4  Deferral of sunsetting

This section provides that the AusCheck Regulations 2017, for which the sunsetting day is 1 October 2027, are repealed by section 51 of the Legislation Act 2003 on 1 October 2029.

Section 5  Repeal of the instrument

This section provides that the Certificate is repealed at the start of 2 October 2029. This ensures that the Certificate remains in force only as long as it is needed.