Legislation (Deferral of Sunsetting—Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument) 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—Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument) 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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration.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The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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 Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2015 (the Instrument) 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 Instrument is expected to be remade within 12 months of the sunsetting date as a result of matters with the drafting of the replacement instrument that require further consideration and consultation.
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 Instrument is made under section 133 of the Federal Circuit and Family Court of Australia Act 2021 (the FCFCOA Act).
The Instrument’s objectives are to ensure that there is a constitutionally-valid forum in which certain Commonwealth tenancy disputes can be determined, and to enable the exercise of the Commonwealth tenancy disputes jurisdiction of the Federal Circuit and Family Court of Australia (FCFCOA) (Division 2) by ensuring clarity as to rights, laws and powers applying in such disputes.
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 Attorney-General’s Department (the department) to resolve matters identified in the process of the remaking of the instrument that require further consultation and consideration, and will avoid the need to remake the Instrument in its 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, the consultation requirements in section 17 of the Legislation Act have been satisfied for the purposes of the certificate of deferral. The department will undertake further appropriate consultation on the replacement Instrument before it is made.
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:
- the responsible rule-maker to apply to the Attorney-General in writing, and
- 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 sunsetting day
- 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
- 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
- the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to that instrument, and
- 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.
As the rule-maker for the Instrument is the Attorney-General, the Hon Mark Dreyfus KC MP, there is no written application associated with this Certificate. On the basis of the information contained in the statement of reasons below, the Attorney‑General is satisfied that the Instrument 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 Certificate defers the sunsetting date of the Instrument by 12 months to 1 April 2026 to enable the department additional time to undertake further consultation in order to assess matters identified during the drafting of the replacement Instrument, and to ensure the Instrument operates as intended once it is remade. A deferral of the sunsetting date will also avoid the need to remake the Instrument in its current form until the replacement Instrument can be finalised.
Section 133 of the FCFCOA Act confers on the FCFCOA (Division 2) original jurisdiction to hear and determine Commonwealth tenancy disputes between a Commonwealth lessor (or similar) and non-Commonwealth lessee (or similar). Subsection 133(2) provides that the Minister may, by legislative instrument, confer jurisdiction on the FCFCOA (Division 2) in respect of any other specified Commonwealth tenancy disputes. Subsection 133(3) empowers the Minister to make provision for various matters, including the law to be applied in determining a Commonwealth tenancy dispute and the powers that the FCFCOA (Division 2) may exercise under the applicable law. The Instrument includes provisions made under each of subsection 133(2) and 133(3) of the FCFCOA Act. These provisions are necessary to ensure there remains a constitutionally-valid forum in which the types of Commonwealth tenancy disputes covered by the Instrument can be determined.
The Instrument will likely cease to be in force in its current form within 24 months of its original sunsetting date.
More information
Further details on the provisions of the Certificate are provided in Attachment A.
The Instrument 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 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—Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument) 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 Federal Circuit and Family Court of Australia (Commonwealth Tenancy Disputes) Instrument 2015, 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.