Legislation (Deferral of Sunsetting—Clean Energy (Consequential Amendments) Regulations) Certificate 2022
EXPLANATORY STATEMENT
Issued by the Attorney-General in compliance with
section 15G of the Legislation Act 2003
INTRODUCTION
The Legislation (Deferral of Sunsetting—Clean Energy (Consequential Amendments) Regulation) Certificate 2022 (the Certificate) is made under paragraph 51(1)(c) 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.
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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration.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 The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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 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.
The Certificate defers the sunsetting date of the Clean Energy (Consequential Amendments) Regulation 2012 (the Regulation) by 12 months from 1 April 2022 to 1 April 2023.
Pursuant to subsection 51(4) of the Legislation Act the Certificate will not be subject to the disallowance provisions of that Act as the deferred sunsetting day specified in the Certificate is on or before the first anniversary of the originally scheduled sunsetting day. Subsection 51(4) of the Legislation Act provides that a certificate of deferral is exempt from disallowance if it defers the sunsetting day of an instrument by up to 12 months.
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. Where the deferral is for a short period (6 or 12 months), the certificate is exempt from disallowance because the instrument will shortly be reviewed and, if remade, subject to disallowance and parliamentary scrutiny. Subjecting short term certificates of deferral to disallowance would undermine the flexibility afforded by their further but strictly limited postponement of sunsetting. In this case, the Regulation is expected to become redundant within 12 months of the current sunsetting date on the commencement of proposed amendments to the Clean Energy (Consequential Amendments) Act 2011. If this Certificate were to be disallowed, a remade Regulation would only be in force for a short period of time before becoming redundant. There is also a risk that if disallowance occurred close to or after 1 April 2022, the remade Regulation could not be drafted and presented to the Federal Executive Council in time to avoid creating a gap in the law.
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 Best Practice Regulation (OBPR). The OBPR 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 Minister for Industry, Energy and Emissions Reduction, the Hon Angus Taylor MP, is the relevant rule-maker for the instrument for the purposes of section 6 of the Legislation Act. Minister Taylor applied to the Attorney-General for this certificate of deferral, providing the necessary information and context, including details of the Climate Change Authority’s review of the National Greenhouse and Energy Reporting (NGER) Legislation in 2018. The consultation paper for the review called for views from stakeholders on the issue of NGER data sharing rules generally. Legislative action to ensure the continuation of permissions for disclosure of historical NGER data was publicly recommended by the Climate Change Authority in the final report of its review of the NGER scheme (rec 14, section 4.8.1).
The Clean Energy (Consequential Amendments) Regulation 2012 provides for the continuation of permissions for the disclosure and publication of historical information obtained under the NGER Act, which is necessary to support Australia’s energy and emissions programs. The proposed introduction of amendments to the Clean Energy (Consequential Amendments) Act 2011 in 2022 in response to the NGER review will remove the ongoing need for the Regulation and streamline arrangements for access to NGER data.
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.
A 12 month deferral will allow sufficient time for the proposed amendments to be introduced, passed and commence. The deferral will avoid the need to remake the Regulation in its current form for the short period of time before it is made redundant on commencement of the new arrangements. As such, deferral of the sunsetting date of the Regulation is consistent with the policy intent of the sunsetting regime, and does not significantly alter existing arrangements.
In light of these considerations, further consultation was not necessary.
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:
(a) the responsible rule-maker to apply to the Attorney-General in writing, and
(b) the Attorney-General to be satisfied that:
(i) 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
(ii) 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
(iii) the dissolution of 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
(iv) the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to that instrument, and
(c) 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 Regulation is the Minister for Industry, Energy and Emissions Reduction, the Hon Angus Taylor MP. On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the Regulation 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 its 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 National Greenhouse and Energy Reporting Act 2007 (NGER Act) establishes a uniform national system for the reporting of energy and emissions data by companies and underpins both domestic energy and emissions policy and the fulfilment of Australia’s international reporting obligations.
The Regulation was made under item 228 of Schedule 1 to the Clean Energy (Consequential Amendments) Act 2011 (CECA Act). It provides for the continuation of permissions for the disclosure and publication of historical information obtained under the NGER Act prior to the commencement of Schedule 1 of the CECA Act on 1 April 2012. The disclosure of historical National Greenhouse and Energy Reporting (NGER) data, most commonly within the Commonwealth government and to state governments for the purposes of analysis and policy development, remains necessary to support Australia’s energy and emissions programs.
Consistent with Recommendation 14 of the final report of the Climate Change Authority’s Review of the National Greenhouse and Energy Reporting Legislation, the Government intends to introduce legislative amendments which, if passed, will remove the ongoing need for the Regulation by repealing item 219 of Schedule 1 to the CECA Act. This will streamline arrangements for access to NGER data with the result that information obtained under the NGER Act at any point in time will be uniformly governed by the provisions of Part 3 of the Clean Energy Regulator Act 2011.
The intended reforms to arrangements for the disclosure of NGER information are technical in nature. It is expected that these amendments will be introduced, passed and commence before 1 April 2023. Once this occurs, the Regulation will cease to have effect. A 12 month deferral of the sunsetting day will therefore allow sufficient time for the legislation to be passed and avoid the need to remake the Regulation in its current form for the short period of time before it is made redundant on commencement of the new arrangements.
More information
Further details on the provisions of the Certificate are provided in Attachment A.
The Regulation which is subject to the Certificate, and which will now sunset at a later day as specified in the Certificate, is available on the Federal Register of Legislation.
Further information may be requested from AGD about the operation of the Certificate and from the Department of Industry, Science and Energy Resources about the Regulation.
ATTACHMENT A
NOTES ON THE CERTIFICATE
Section 1 Name
This section provides that the Certificate is named the Legislation (Deferral of Sunsetting— Clean Energy (Consequential Amendments) Regulation) Certificate 2022. 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 Clean Energy (Consequential Amendments) Regulation 2012, for which the sunsetting day is 1 April 2022, is repealed by section 51 of the Legislation Act 2003 on 1 April 2023.
Section 5 Repeal of the instrument
This section provides that the Certificate is repealed at the start of 2 April 2023.