Legislation (Deferral of Sunsetting—Environment Protection and Biodiversity Conservation Declared State or Territory Declaration) Certificate 2023
EXPLANATORY STATEMENT
Issued by the Attorney-General in compliance with
section 15G of the Legislation Act 2003
INTRODUCTION
The Legislation (Deferral of Sunsetting—Environment Protection and Biodiversity Conservation Declared State or Territory Declaration) Certificate 2023 (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. 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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration.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The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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 Environment Protection and Biodiversity Conservation Declared State or Territory Declaration 2012 (‘the Declaration’) by 24 months from 1 April 2023 to 1 April 2025.
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 Declaration is expected to be reviewed and replaced or repealed within 24 months of the current sunsetting date as a result of legislative amendments required to implement the Government’s response to the Independent Review of the Environment Protection and Biodiversity Conservation Act 1999 (the EPBC Act) undertaken by Professor Graeme Samuel AC.
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 Declaration is made under subsection 505E(1) of the EPBC Act. The instrument declares certain States and Territories that are relevant to the operation of the Independent Expert Scientific Committee on Coal Seam Gas and Large Coal Mining Development (IESC).
The Declaration will likely cease to be in force in its current form within 24 months of its original sunsetting day. The Department of Climate Change, Energy, the Environment and Water is currently in the process of considering legislative options to implement the Government’s response to the Independent Review of the EPBC Act. As part of this process, the Department of Climate Change, Energy, the Environment and Water will undertake consultation with relevant stakeholders, including the IESC, on the continued operation of this instrument.
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. As such, given that deferral of the sunsetting date of the Declaration 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:
(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 Declaration, the Minister for the Environment and Water, the Hon Tanya Plibersek MP, provided a written application to the Attorney‑General seeking a certificate of deferral of sunsetting for the Declaration. On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the Declaration 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 the reasons for issuing the Certificate.
The Declaration is made under subsection 505E(1) of the EPBC Act. The instrument declares certain States and Territories that are relevant to the operation of the IESC. A declaration under section 505E of the EPBC Act can only include States or Territories that are party to the National Partnership Agreement on Coal Seam Gas and Large Coal Mining Development. This Agreement lapsed on 30 April 2014.
The Declaration will likely cease to be in force in its current form within 24 months of its original sunsetting day. This is because the Department of Climate Change, Energy, the Environment and Water is currently in the process of considering legislative options to implement the Government’s response to the Independent Review of the EPBC Act.
Accordingly, to allow sufficient time for the Department of Climate Change, Energy, the Environment and Water to undertake consultation with relevant stakeholders, including the IESC, on the continued operation of the Declaration, it is practical and appropriate for the existing instrument to remain in place until until it is repealed as anticipated within the next 24 months.
Deferral of the sunsetting date of the Declaration will allow sufficient time for amendments to the EPBC Act to be made, and avoid the need to remake the instrument in its current form for the short period of time before it would need to be amended again to implement the anticipated changes arising from the consideration process currently underway by the Department of Climate Change, Energy, the Environment and Water. Considering and progressing amendments to the EPBC Act and the Declaration at the same time will also minimise cost and regulatory impact on industry.
More information
Further details on the provisions of the Certificate are provided in Attachment A.
The Declaration 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 the Attorney-General’s Department about the operation of the Certificate, and from the Department of Climate Change, Energy, the Environment and Water about the Declaration to which the Certificate applies.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Legislation (Deferral of Sunsetting— Environment Protection and Biodiversity Conservation Declared State or Territory Declaration) Certificate 2023 (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 Environment Protection and Biodiversity Conservation Declared State or Territory Declaration 2012 (the Declaration). The Declaration is expected to be repealed and replaced within 24 months of its scheduled sunsetting date as part of a process of considering legislative options to implement the Government’s response to the Independent Review of the EPBC Act undertaken by Professor Graeme Samuel AC.
The Certificate allows the Declaration to continue to be in force for a further, but limited, period of time when it 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 Declaration does not engage in any issues of human rights and freedoms recognised or declared by the international instruments in section 3 of the Human Rights Act. This is evidenced by the explanatory statement published when the Declaration was made.
Before issuing the Certificate, the Attorney-General was satisfied that the Declaration would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months of its sunsetting date. Issuing a certificate of deferral therefore avoids the need to replace the Declaration 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 Declaration will be assessed at the time any replacement instrument is made, including through the requirement to prepare a further 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 it does not raise any human rights issues, and ensures that any proposal to make a replacement instrument will be subject to parliamentary oversight and scrutiny.
Attachment A
NOTES ON SECTIONS
Section 1 Name
This section provides that the Certificate is named the Legislation (Deferral of Sunsetting— Environment Protection and Biodiversity Conservation Declared State or Territory Declaration) Certificate 2023. 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 Environment Protection and Biodiversity Conservation Declared State or Territory Declaration 2012, for which the sunsetting day is 1 April 2023, is repealed by section 51 of the Legislation Act 2003 on 1 April 2025.
Section 5 Repeal of the instrument
This section provides that the Certificate is repealed at the start of 2 April 2025.