Legislation (Deferral of Sunsetting—Marriage Act (Proclaimed Overseas Countries) Proclamation) Certificate 2026

Legislation (Deferral of Sunsetting—Marriage Act (Proclaimed Overseas Countries) Proclamation) Certificate 2026

EXPLANATORY STATEMENT

Issued by the Attorney-General in compliance with
section 15G of the Legislation Act 2003

INTRODUCTION

The Legislation (Deferral of Sunsetting—Marriage Act (Proclaimed Overseas Countries) Proclamation) Certificate 2026 (the Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003 (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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration.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The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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 Marriage Act (Proclaimed Overseas Countries) Proclamation 2016 (the Proclamation) by 24 months from 1 April 2026 to 1 April 2028.

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 Proclamation is expected to cease to be in force in its current form and be  remade in a different form within 24 months of the sunsetting date as the embassies of some countries listed in the Proclamation have advised the Attorney-General’s Department that they no longer need to be listed on the Proclamation as their laws do not authorise their diplomatic or consular officials to perform marriages overseas (including in Australia). If the Certificate were to be disallowed, there would not be enough time to remake the Proclamation prior to the sunsetting day and any such marriages conducted after the sunsetting date could not be recognised as valid under the Marriage Act 1961 (the Marriage Act).

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 Proclamation is made under the Marriage Act, which provides the framework for the solemnisation and recognition of marriage in Australia.

Division 3 of Part IV of the Marriage Act provides the framework for marriages in Australia by diplomatic or consular officials of other countries between persons who are not Australian citizens to be recognised as valid under Australian law. Section 54 of the Act provides that the Governor-General may declare by Proclamation that a country is a proclaimed overseas country but only if satisfied that the country’s law or custom authorises the solemnisation, by or in the presence of either or both diplomatic or consular officers of that country, of marriages outside that county.

The Proclamation lists 12 countries. Under Division 3 of Part IV of the Marriage Act, marriages performed by diplomatic or consular officials of overseas countries in Australia can only be recognised as valid if:

• the officials are from a country that is a proclaimed overseas country
• the marriage is recognised as a valid marriage by the law or custom of the overseas country, and
• the marriage has been registered with the Registrar of Foreign Marriages in Australia.

In the process of reviewing the Proclamation, the Attorney-General’s Department has consulted the Department of Foreign Affairs and Trade, and the embassies of the countries listed in the Proclamation. Diplomatic or consular officials from some proclaimed countries continue to perform marriages in Australia, while some embassies have advised that their diplomatic or consular officials do not perform marriages in Australia because their countries’ domestic law or custom no longer authorises them to do so. Pending the outcome of the review of the Proclamation, it is expected that the Proclamation will be repealed and remade in a different form to ensure it only lists countries who seek to be proclaimed and whose countries’ diplomatic or consular officials are authorised to perform diplomatic marriages within Australia under the overseas country’s domestic law.

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. The deferral will minimise the administrative burden on stakeholders associated with consultation on the remake of an instrument that will only have effect for a limited amount of time. Any replacement legislative 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 24-month deferral will allow sufficient time for the Attorney-General’s Department to complete the review of the Proclamation, and will avoid the need to remake the Proclamation 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 Proclamation 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 issue of the certificate.

As the rule-maker for the Proclamation is the Attorney-General, the Hon Michelle Rowland 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 Proclamation would, apart from the operation of Part 4 of Chapter 3 of the Legislation Act, be likely to cease to be in force in its current form within 24 months after the 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 Proclamation by 24 months to 1 April 2028 as the Proclamation will likely cease to be in force in its current form within 24 months of its original sunsetting date. This is because the embassies of some countries listed in the Proclamation have advised the Attorney-General’s Department that they no longer need to be listed on the Proclamation as their laws do not authorise their diplomatic or consular officials to perform marriages overseas (including in Australia).

Division 3 of Part IV of the Marriage Act provides the framework for marriages in Australia by diplomatic or consular officials of other countries between persons who are not Australian citizens to be recognised as valid under Australian law. Section 54 of the Act provides that the Governor-General may declare by Proclamation that a country is a proclaimed overseas country but only if that country’s law or custom authorises the solemnisation, by or in the presence of either or both diplomatic or consular officers of that country, of marriages outside that country. The Proclamation lists 12 countries. Under Division 3 of Part IV of the Act, marriages performed by diplomatic or consular officials of overseas countries can only be recognised as valid if:

• the officials are from a country that is a proclaimed overseas country
• the marriage is recognised as a valid marriage by the law or custom of the overseas country, and
• the marriage has been registered by the Registrar of Foreign Marriages in Australia.

A 24-month deferral will allow sufficient time for the Attorney-General’s Department to complete the review of the Proclamation, and will avoid the need to remake the Proclamation in its current form for the short period of time before it is repealed and a replacement instrument is made.

Accordingly, the Proclamation 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 Proclamation 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 the instrument to which the Certificate applies.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Legislation (Deferral of Sunsetting—Marriage Act (Proclaimed Overseas Countries) Proclamation) Certificate 2026 (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 Marriage Act (Proclaimed Overseas Countries) Proclamation 2016 (the Proclamation).

The Proclamation is expected to cease to be in force in its current form and be repealed and replaced within 24 months of its scheduled sunsetting as the embassies of some countries listed in the Proclamation have advised the Attorney-General’s Department that they no longer need to be listed on the Proclamation as their laws do not authorise their diplomatic or consular officials to perform marriages overseas (including in Australia) .

The Certificate allows the Proclamation to continue to be in force in its current form 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.

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 Proclamation engages certain rights and freedoms declared by the international instruments set out in section 3 of the Human Rights Act.

The Proclamation engages the rights contained in Article 23 of the International Covenant on Civil and Political Rights (ICCPR). Article 23(2) of the ICCPR provides the right of men and women of marriageable age to marry and to found a family. The Proclamation promotes the rights of individuals under article 23(2) by providing for the recognition of the marital status of individuals who seek to marry in Australia in a ceremony solemnised before a diplomatic or consular official of overseas countries whose domestic laws provide for this.

Therefore, the Proclamation is compatible with human rights because it promotes, rather than limits, human rights.

Before issuing the Certificate, the Attorney-General was satisfied that the Proclamation 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 instrument 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 remade Proclamation will be assessed at the time it is made, including through the requirement to prepare a 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 promotes human rights. Any proposal to make a replacement instrument will be subject to parliamentary oversight and scrutiny.

ATTACHMENT A

NOTES ON THE CERTIFICATE

Section 1  Name

This section provides that the Certificate is named the Legislation (Deferral of Sunsetting—Marriage Act (Proclaimed Overseas Countries) Proclamation) Certificate 2026. 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 Marriage Act (Proclaimed Overseas Countries) Proclamation 2016, for which the sunsetting day is 1 April 2026, is repealed by section 51 of the Legislation Act 2003 on 1 April 2028.

Section 5  Repeal of the instrument

This section provides that the Certificate is repealed at the start of 2 April 2028. This ensures that the Certificate remains in force only as long as it is needed.