Legislation (Deferral of Sunsetting—Migration Regulations (Specification of Organisations)) 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—Migration Regulations (Specification of Organisations)) Certificate 2023 (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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration.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The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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 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 Migration Regulations 1994 - Specification of Organisations - IMMI 13/023 (‘IMMI 13/023’) by 24 months from 1 October 2023 to 1 October 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, IMMI 13/023 is likely to be remade within 24 months of the sunsetting date as a result of amendments to the family violence provisions of the Migration Regulations 1994 (the Regulations) to cover a broader range of visa subclasses.
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.
IMMI 13/023 specifies both the Department of Human Services (as known at the time of registration) and LSC Psychology as organisations for the purposes of the definition of ‘independent expert’ in regulation 1.21 of Regulations in relation to non-judicial claims of family violence referred to the independent expert for assessment. The Department of Home Affairs (the Department) is currently progressing amendments to the family violence provisions of the Regulations. The Department has consulted with over 30 experts across the family violence support sector on these amendments.
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 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 Department to assess the impact of the amendments to the family violence provisions, and draft a new instrument accordingly. As such, given that deferral of the sunsetting date of IMMI 13/023 is consistent with the policy intent of the sunsetting regime and does not 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 IMMI 13/023, the Minister for Immigration, Citizenship and Multicultural Affairs, the Hon Andrew Giles MP, provided a written application to the Attorney‑General seeking a certificate of deferral of sunsetting for IMMI 13/023. 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 IMMI 13/023 by 24 months to 1 October 2025 to enable the Department to evaluate the need for amendments to the family violence provisions, evaluate the need for any changes relating to the independent expert, and draft a new instrument, while avoiding having to remake the instrument twice in a short period of time.
IMMI 13/023 specifies LSC Psychology as an organisation for the purposes of the definition of ‘independent expert’ in regulation 1.21 of the Regulations in relation to non-judicial claims of family violence referred to the independent expert for assessment. The current contract with LSC Psychology is until 30 June 2024, with an option for a two-year extension.
A 24-month deferral of IMMI 13/023’s sunsetting date will avoid the need to remake the instrument twice in a short period of time. IMMI 13/023 would initially need to be remade in its current form prior to the current 1 October 2023 sunsetting date while the Department commences the practical implementation of changes to the family violence provisions. Accordingly, IMMI 13/023 will 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.
IMMI 13/023, 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 Home Affairs about the instrument to which the Certificate applies.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The Legislation (Deferral of Sunsetting—Migration Regulations (Specification of Organisations)) 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 Migration Regulations 1994 - Specification of Organisations - IMMI 13/023 (‘IMMI 13/023’).
The purpose of IMMI 13/023 is to specify both the Department of Human Services (as known at the time of registration) and LSC Psychology as organisations for the purposes of the definition of ‘independent expert’ in regulation 1.21 of the Migration Regulations 1994 (the Regulations) in relation to non-judicially determined claims of family violence that are referred to the independent expert for assessment.
Regulation 1.21 of the Regulations provides that an ‘independent expert’ means a person who is suitably qualified to make independent assessments of non-judicially determined claims of family violence and is employed by, or contracted to provide services to, an organisation that is specified in a legislative instrument made by the Minister for Immigration, Citizenship and Multicultural Affairs, for the purpose of making independent assessments of non-judicially determined claims of family violence.
IMMI 13/023 is likely to be repealed and replaced within 24 months of its scheduled sunsetting day as a result of amendments to the family violence provisions of the Regulations to cover a broader range of visa subclasses and following evaluation of the need for any changes relating to the independent expert. The deferral of the sunsetting date will enable the Department to make amendments to the family violence provisions, evaluate the need for any changes relating to the independent expert, and draft a new instrument that is reflective of those changes, while avoiding having to remake the instrument twice in a short period of time.
The Certificate allows IMMI 13/023 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.
IMMI 13/023 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 (Parliamentary Scrutiny) Act 2011.
Before issuing the Certificate, the Attorney‑General was satisfied that IMMI 13/023 would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months of their 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.
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.
ATTACHMENT A
NOTES ON THE CERTIFICATE
Section 1 Name
This section provides that the Certificate is named the Legislation (Deferral of Sunsetting—Migration Regulations (Specification of Organisations)) 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 Migration Regulations 1994 - Specification of Organisations - IMMI 13/023, for which the sunsetting day is 1 October 2023, is repealed by section 51 of the Legislation Act 2003 on 1 October 2025.
Section 5 Repeal of the instrument
This section provides that the Certificate is repealed at the start of 2 October 2025.