Legislation (Deferral of Sunsetting—Jabiru Town Plan) Certificate 2018

EXPLANATORY STATEMENT

INTRODUCTION

The Legislation (Deferral of Sunsetting—Jabiru Town Plan) Certificate 2018 (the deferral certificate) was 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. The deferral certificate is not subject to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the deferral certificate is on or before the first anniversary of the sunsetting day (subsection 51(4) of the Legislation Act).

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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005.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 day of an instrument for a period of either 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 The instrument will then be repealed on the day specified in the certificate instead of the scheduled sunsetting day.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.

The deferral certificate defers the sunsetting date of the Jabiru Town Plan 1981 (Jabiru Town Plan) from 1 April 2019 to 1 April 2020.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A certificate of deferral of sunsetting for six or 12 months issued by the Attorney-General under paragraph 51(1)(c) of the Legislation Act is not subject to disallowance (subsection 51(4) of the Legislation Act). As such, a statement of compatibility with human rights is not required (section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011).

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 this certificate was issued, the Attorney‑General considered the general obligation to consult imposed by section 17 of the Legislation Act.

Consultation involved the Director of National Parks (DNP), Dr Judy West, advising the Attorney‑General of the reasons in support of issuing the deferral certificate. The Jabiru Town Plan continues to be in force under regulation 11.10 of the Environment Protection and Biodiversity Conservation Regulations 2000 (EPBC Regulations). As such, the DNP is authorised to repeal, rescind, revoke, amend or vary Jabiru Town Plan under regulation 11.10 (section 33(3) of the Acts Interpretation Act 1901). Consequently, the DNP is the relevant rule-maker for the purposes of paragraph 6(1)(c) of the Legislation Act.  

The deferral certificate is consistent with the policy intent of the sunsetting arrangements and does not significantly alter existing arrangements. Accordingly, further consultation was unnecessary.

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 either six, 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

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, or

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, or

iii)            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

iv)            the Attorney-General has approved Part 4 of Chapter 3 of the Legislation Act (Sunsetting) not applying to the instrument, and

c)      the Attorney-General to issue a certificate. The explanatory statement for the certificate to include a statement of reasons for 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 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 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 deferral certificate

For the purposes of subsection 51(5) of the Legislation Act, this section sets out the statement of reasons for the issue of the certificate.

The purpose of the Jabiru Town Plan is to regulate the use and development of land in Jabiru township in Kakadu National Park in the Northern Territory.

Jabiru was originally constructed to support mineral exploration in the region, in particular within the Ranger Project Area. However the Ranger Project Area is now scheduled for closure and remediation by 2026. Planning is now underway among government and community stakeholders to transition the township’s economic focus from mining to tourism. To support this transition, the Northern Territory Department of Infrastructure, Planning and Logistics is leading the development of a planning scheme for Jabiru in accordance with the Planning Act 1999 (NT), to be known as the ‘Jabiru Planning Scheme’. It is proposed that the Jabiru Planning Scheme will be incorporated into an instrument at the Commonwealth level that will become a new town plan, as contemplated by subparagraph 389(3) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The proposed new town plan, incorporating the Jabiru Planning Scheme, is then intended to be provided to the DNP for approval as a town plan for Jabiru under regulation 11.10 of the EPBC Regulations and in accordance with the Kakadu National Park Management Plan 2016-2026. Provided that the new town plan is approved by the DNP, the existing Jabiru Town Plan will be repealed.

The DNP has become aware that it is likely that the Jabiru Planning Scheme will not be finalised and approved prior to the instrument’s current sunsetting day. A deferral of the sunsetting day by 12 months would allow stakeholders and DNP personnel time to comprehensively scrutinise and consult on the Jabiru Planning Scheme prior to its approval in replacement of the Jabiru Town Plan. It is therefore likely that the Jabiru Town Plan will cease to be in force within 24 months of 1 April 2019.

A 12 month deferral of the sunsetting day for the Jabiru Town Plan will avoid the need to remake the Jabiru Town Plan in its current form for the short period before it will likely cease to be in force.

As such, a deferral of the sunsetting of the Jabiru Town Plan would be 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.

More information

Further details on the provisions of the deferral certificate are provided in Attachment A.

The instrument which is the subject of the certificate, and which will now sunset at a later day as specified in the certificate, is available on the Federal Register of Legislationhttp://www.comlaw.gov.au.

Further information may be requested from the Attorney-General’s Department about the operation of the certificate, and from the Director of National Parks about the instrument to which the certificate applies.

ATTACHMENT A

NOTES ON THE CERTIFICATE

Section 1 Name

This section provides that the deferral certificate is named the Legislation (Deferral of Sunsetting—Jabiru Town Plan) Certificate 2018. The deferral certificate may be cited by that name.

Section 2  Commencement

This section provides for the deferral certificate to commence on the day after it is registered.

Section 3 Authority

This section provides that the deferral certificate is made under paragraph 51(1)(c) of the Legislation Act.

Section 4 Deferral of sunsetting

This section provides that the Jabiru Town Plan 1981, for which the sunsetting day is 1 April 2019, is taken to be repealed under section 51 of the Legislation Act on 1 April 2020.

Section 5 Repeal of this instrument

This section provides that the deferral certificate is repealed at the start of 2 April 2020.