Legislation (Deferral of Sunsetting—Dental Benefits Rules) Certificate 2025

Administered by Attorney-General's Department

Legislation au F2025L00294 Not in force Legislative Instrument

Legislation content

Legislation (Deferral of Sunsetting—Dental Benefits Rules) 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—Dental Benefits Rules) Certificate 2025 (the Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003 (Legislation Act). It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. 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.

 

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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration.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The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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 Dental Benefits Rules 2014 (the Rules) by 12 months from 1 April 2025 to 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. 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 Rules are expected to be remade within 12 months of the sunsetting date following further consideration of matters which have arisen relating to the drafting of the replacement instrument.

 

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 Rules are made under the Dental Benefits Act 2008.

 

The Rules provide up to $1,132 in benefits to eligible children over a two-calendar year period for basic dental services under the Child Dental Benefits Schedule (CDBS). It sets out items specifying dental services, the amount of dental benefit payable, and the method for determining the amount. The Rules also set out a monetary limit on the amount of dental benefit payable in respect of dental services provided to dental patients during specified periods.

 

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 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 instruments.

 

A 12 month deferral will allow sufficient time for the Department of Health and Aged Care (the department) to appropriately address matters that have arisen relating to the drafting of the replacement instrument that require further consideration and will avoid the need to remake the Rules in their current form for the short period of time before it is repealed and a replacement instrument is made. As such, given that deferral of the sunsetting date of the instrument 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 issuing of the certificate.

 

The rule-maker for the Rules, the Minister for Health and Aged Care, the Hon Mark Butler MP, provided a written application to the Attorney‑General seeking a certificate of deferral of sunsetting for the instrument. On the basis of the information contained in the statement of reasons below, the Attorney‑General is satisfied that the Rules 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 Rules by 12 months to 1 April 2026 to enable the department to further consider matters relating to the drafting of the replacement instrument and complete the remaking of the Rules.

 

If the Rules are allowed to be sunset before a replacement instrument is in place, funding available through the CDBS would cease, placing healthcare and financial burden on families and the public health system across Australia.

 

The department has progressed the draft remaking of the Rules with the Office of Parliamentary Counsel, and a significant portion has been completed. However, further work is required to ensure the replacement instrument reflects the contemporary operating environment of the CDBS and to address current ambiguity in the Rules. The department expects to remake the Rules by early next year.

 

Accordingly, the Rules will likely cease to be in force in its 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 Rules 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 Health and Aged Care about the Instrument to which the Certificate applies.


ATTACHMENT A

NOTES ON THE CERTIFICATE

 

Section 1  Name

This section provides that the Certificate is named the Legislation (Deferral of Sunsetting—Dental Benefits Rules) Certificate 2025. 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 Dental Benefits Rules 2014, for which the sunsetting day is 1 April 2025, is repealed by section 51 of the Legislation Act 2003 on 1 April 2026.

 

Section 5  Repeal of the instrument

This section provides that the Certificate is repealed at the start of 2 April 2026.

 

 

Overview

The Legislation (Deferral of Sunsetting—Dental Benefits Rules) Certificate 2025, enacted in accordance with the Legislation Act 2003, addresses the need to defer the sunsetting of the Dental Benefits Rules 2014. This legislation was introduced to provide a temporary extension to the sunsetting period of these rules, which outline the benefits and monetary limits for dental services under the Child Dental Benefits Schedule. The sunsetting framework established by the Legislation Act aims to ensure legislative instruments are reviewed and updated, preventing unnecessary continuation of outdated laws. The deferral of the sunsetting date from 1 April 2025 to 1 April 2026 is intended to allow the Department of Health and Aged Care sufficient time to draft a replacement instrument that adequately reflects the contemporary requirements and resolves ambiguities in the current rules. This deferral avoids immediate disruption to the dental benefits provided to eligible children and their families, ensuring continuity in healthcare provision. The certificate, issued by the Attorney-General, exempts this short-term deferral from disallowance, aligning with the flexibility provided by the sunsetting framework to avoid administrative burdens and unintended consequences.

Scope and Application

The Legislation (Deferral of Sunsetting—Dental Benefits Rules) Certificate 2025 applies to the Dental Benefits Rules 2014, which are made under the Dental Benefits Act 2008. These rules govern the provision of up to $1,132 in benefits to eligible children over a two-calendar year period for basic dental services under the Child Dental Benefits Schedule (CDBS). The Certificate applies to the Commonwealth and the rules it defers sunsetting for. The deferral will extend the sunsetting date of these rules from 1 April 2025 to 1 April 2026. The Certificate is made under the authority of the Legislation Act 2003 and is designed to allow the Department of Health and Aged Care additional time to address issues arising from the drafting of a replacement instrument, thus avoiding the need to operate the current rules in their final months before they are repealed. The deferral does not alter existing arrangements significantly and provides necessary flexibility within the sunsetting framework, ensuring that the rules remain in force for a limited additional period to prevent a lapse in services that would otherwise burden families and the public health system. The Certificate is exempt from disallowance as it defers the sunsetting date by up to 12 months, in line with the provisions of the Legislation Act.

Key Provisions

The Legislation (Deferral of Sunsetting—Dental Benefits Rules) Certificate 2025 defers the sunsetting date of the Dental Benefits Rules 2014 (the Rules) by 12 months from 1 April 2025 to 1 April 2026, as per section 4 of the Certificate. This means the Rules, which provide up to $1,132 in benefits to eligible children over a two-calendar year period for basic dental services under the Child Dental Benefits Schedule, will remain in force until 1 April 2026, rather than being repealed on 1 April 2025 as originally scheduled. The deferral is made under paragraph 51(1)(c) of the Legislation Act 2003 and is intended to provide the Department of Health and Aged Care with sufficient time to address matters related to the drafting of a replacement instrument and to avoid the need to remake the Rules in their current form for the short period before they are repealed. The Certificate imposes obligations on the parties and entities it governs by extending the operational period of the Rules beyond their original sunsetting date. This extension allows for continued provision of dental benefits under the Child Dental Benefits Schedule, ensuring that eligible children and their families can still access these services until a replacement instrument is made. The deferral also places a responsibility on the Department of Health and Aged Care to complete the remaking of the Rules by early next year to reflect the contemporary operating environment and to address current ambiguities in the Rules. Breaching the provisions of the Certificate, while not explicitly stated in the explanatory statement, could potentially lead to legal consequences under the Legislation Act 2003. If the Department of Health and Aged Care fails to complete the remaking of the Rules by the new sunsetting date, it could result in a cessation of dental benefits for eligible children, thereby impacting healthcare and placing financial burdens on families and the public health system. Although specific offences, penalties, or civil/criminal consequences are not outlined in the explanatory statement, the potential disruption to public services and the financial implications for affected parties underscore the importance of adhering to the provisions of the Certificate. The explanatory statement provides a rationale for issuing the Certificate, stating that if the Rules are allowed to sunset before a replacement instrument is in place, funding available through the Child Dental Benefits Schedule would cease, leading to significant healthcare and financial burdens on families and the public health system across Australia. The department has already made significant progress in drafting the replacement instrument but requires additional time to ensure it accurately reflects the contemporary operating environment and addresses current ambiguities. The Certificate aims to provide this necessary flexibility without imposing an unreasonable administrative burden on Commonwealth agencies or the Parliament.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.