Legislation (Deferral of Sunsetting—Australian Postal Corporation Regulations) Amendment Certificate 2020
EXPLANATORY STATEMENT
Issued by the Attorney-General in compliance with
section 15G of the Legislation Act 2003
INTRODUCTION
The Legislation (Deferral of Sunsetting–Australian Postal Corporation Regulations) Amendment Certificate 2020 (the amendment certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003. It amends the Legislation (Deferral of Sunsetting–Australian Postal Corporation Regulations) Certificate 2018 (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 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) should 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Subsection 50(1) of the Legislation Act provides that the legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005. Legislative instruments registered on 1 January 2005 are subject to the staggered sunsetting timetable set out in subsection 50(2) of the Legislation Act.
Under paragraph 51(1)(c) of the Legislation Act the Attorney-General can issue a certificate to defer the sunsetting date of an instruments for a period of six, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the scheduled sunsetting day. This allows 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 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 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 Australian Postal Corporation Regulations 1996 (the Regulations) by an additional 12 months, resulting in a deferral of 24 months in total. The Regulations, for which the original sunsetting day was 1 April 2019, will now sunset on 1 April 2021.
PROCESS BEFORE THE AMENDMENT CERTIFICATE WAS MADE
Regulatory impact analysis
Certificates of deferral are machinery of government instruments, and are therefore not subject to the regulatory impact assessment requirements set out by the Office of Best Practice Regulation (OBPR). The OBPR 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 Legislation Act.
The Minister for Communications, Cyber Safety and the Arts advised the Attorney-General of the reasons in support of issuing an amendment certificate. The Minister is responsible for administering the Regulations and is therefore the relevant rule-maker for the purposes of section 6 of the Legislation Act.
The amendment certificate is consistent with the policy intent of the sunsetting arrangements and does not significantly alter existing arrangements. Accordingly, further consultation was not necessary.
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 either six, 12, 18 or 24 months by means of a certificate made under that section. In terms of the process, the Legislation Act requires:
a) the responsible rule-maker to apply to the Attorney-General in writing
b) the Attorney-General to be satisfied that:
- the instrument would (apart from the operation of the sunsetting provisions) be likely to cease to be in force within 24 months after its originally scheduled sunsetting day, or
- 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 or avoided, or
- the dissolution or expiration of the House of Representatives of the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed, or
- the Attorney-General has approved the sunsetting provisions not applying to the instrument, and
c) the Attorney-General to issue a certificate, and
d) the explanatory statement for the certificate to include a statement for the reasons of the issue of the certificate.
On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the Regulations would, apart from the operation of the sunsetting provisions, be likely to cease to be in force within 24 months of their originally scheduled sunsetting day. As such, the criterion in subparagraph 51(1)(b)(i) of the Legislation Act is met.
Statement of Reasons for issuing the Amendment Certificate
For the purposes of subsection 51(5) of the Legislation Act, this section sets out the statement of the reasons for issuing the amendment certificate.
On 30 December 2018, the Attorney-General issued the principal certificate under section 51 of the Legislation Act, deferring the sunsetting of the Regulations from 1 April 2019 to 1 April 2020. The rule-maker for the Regulations, the Minister for Communications, Cyber Safety and the Arts, subsequently sought the Attorney-General’s approval to further defer the sunsetting of the Regulations by a further 12 months through the issue of an amendment certificate that would delay the repeal date specified in the principal certificate.
The Regulations describe the processes by which Australian Government officials may open a postal article they reasonably believe to contain drugs, chemicals or other quarantine material and the records to be kept in these circumstances. They also outline how the Australian Competition and Consumer Commission may inquire into disputes between Australia Post and its customers over rates negotiated for bulk mail services. The principal certificate was granted on the grounds of amendments to the Australian Postal Corporations Act 1989 proposed by the then Department of Communications and Arts, in consultation with Australia Post, the then Department of Agriculture and relevant agencies in the Home Affairs portfolio.
The Australian Postal Corporation Amendment Bill was proposed to facilitate the efficient and effective screening of international mail while also ensuring the integrity and efficiency of the mail channel. The introduction of the Amendment Bill, which was originally scheduled for 2019, has been delayed to 2020 as a result of complexities and new issues emerging from the most recent consultations on the Bill. Consequently, it is unlikely that the Amendment Bill will be passed by Parliament until after the scheduled sunsetting date of the Regulations. Should Parliament pass the Amendment Bill, it is expected that the Regulations will need to be remade with significant alteration to reflect changes to the new legislation.
Deferring the sunsetting date of the Regulations for a further 12 months will allow sufficient time for the Parliament to make a decision on the Bill and for the Regulations to reflect this outcome. This will avoid the need to remake the Regulations in their current form for a short period of time before they become redundant following the enactment of the Bill.
As such, the amendment 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.
Further information
Further details on the provisions of the 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 Regulations, which will now be repealed on 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 amendment certificate, and from the Department of Infrastructure, Transport, Regional Development and Communications.
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
The Legislation (Deferral of Sunsetting–Australian Postal Corporation Regulations) Amendment Certificate 2020 (the amendment certificate) is compatible with human rights and freedoms recognised or declared in 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. Under that paragraph the Attorney-General can issue a certificate to defer the sunsetting day of an instrument for a period of 6, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the scheduled sunsetting day.
Through the operation of subsection 33(3) of the Acts Interpretation Act, the Attorney-General’s power under paragraph 51(1)(c) of the Legislation Act includes power to repeal, rescind, revoke, amend or vary such a certificate.
The amendment certificate amends the Legislation (Deferral of Sunsetting–Australian Postal Corporation Regulations) Certificate 2018 (the principal certificate), extending the previously granted deferral of sunsetting for the Australian Postal Corporation Regulations 1996 (the Regulations) by an additional 12 months, resulting in a deferral of 24 months in total. The Regulations, for which the originally scheduled sunsetting day was 1 April 2019, will now sunset on 1 April 2021.
The Regulations describe the processes by which Australian Government officials may open a postal article they reasonably believe to contain drugs, chemicals or other quarantine material and the records to be kept in these circumstances. They also outline how the Australian Competition and Consumer Commission may inquire into disputes between Australia Post and its customers over rates negotiated for bulk mail services. The principal certificate was granted on the grounds of amendments to the Australian Postal Corporations Act proposed by the then Department of Communications and Arts, in consultation with Australia Post, the then Department of Agriculture and relevant agencies in the Home Affairs portfolio.
The Australian Postal Corporation Amendment Bill was proposed to facilitate the efficient and effective screening of international mail while also ensuring the integrity and efficiency of the mail channel. The introduction of the Amendment Bill, which was originally scheduled for 2019, has been delayed to 2020 as a result of complexities and new issues emerging from the most recent consultations on the Bill. Consequently, it is unlikely that the Amendment Bill will be passed by Parliament until after the scheduled sunsetting date of the Regulations. Should Parliament pass the Amendment Bill, it is expected that the Regulations will need to be remade with significant alteration to reflect changes to the new legislation.
Deferring the sunsetting date of the Regulations for a further 12 months will allow sufficient time for the Parliament to make a decision on the Bill and for the Regulations to reflect this outcome. This will avoid the need to remake the Regulations in their current form for a short period of time before they become redundant following the enactment of the Bill.
Human rights implications
The Statement of Compatibility with Human Rights for a certificate of deferral of sunsetting focuses on the effect of the deferral instrument, rather than the substantive effect of the instruments that have been deferred.
Before issuing the amendment certificate, the Attorney-General was satisfied that the Regulations would, apart from the sunsetting provisions, cease to be in force within 24 months of the originally scheduled sunsetting day. Any replacement instruments will be subject to parliamentary scrutiny and oversight through disallowance processes unless otherwise exempt. The human rights impact will be individually assessed at that time, including through the requirement to prepare further Statements of Compatibility with Human Rights.
Conclusion
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 Act as it is expected that any replacement instruments that unduly limit human rights and freedoms will be subject to parliamentary oversight and scrutiny.
ATTACHMENT A
NOTES ON THE AMENDMENT CERTIFICATE
Section 1 Name
This section provides that the amendment certificate is named the Legislation (Deferral of Sunsetting–Australian Postal Corporation Regulations) Amendment Certificate 2020. 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.
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 Legislation (Deferral of Sunsetting–Australian Postal Corporation Regulations) Certificate 2018 (the principal certificate) that are necessary to further defer the sunsetting of the Regulations to 1 April 2021.
Item 1 Section 4
This item replaces section 4 of the principal certificate with a new operative provision, further delaying the repeal date for the Regulations.
Item 2 Section 5
This item changes the self-repealing provision of the principal certificate so that it takes effect on 2 April 2021, rather than 2 April 2020.