Legislation (Deferral of Sunsetting—National Health Midwives and Nurse Practitioners Instruments) Certificate 2020

EXPLANATORY STATEMENT
 

Issued by the Attorney-General in compliance with

section 15G of the Legislation Act 2003

INTRODUCTION

The Legislation (Deferral of Sunsetting—National Health Midwives and Nurse Practitioners Instruments) Certificate 2020 (the Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003. 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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005. Legislative instruments registered on 1 January 2005 were 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 six, 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 The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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 following instruments (the Determinations) from 1 October 2020 to 1 October 2022:

• the National Health (Collaborative arrangements for midwives) Determination 2010;
•  the National Health (Collaborative arrangements for nurse practitioners) Determination 2010; and
•  the National Health (Eligible midwives) Determination 2010.

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 the Certificate was issued, the Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act.

The Minister for Health, the Hon Greg Hunt MP, advised the Attorney-General of the reasons in support of issuing the Certificate. The Minister is the relevant rule-maker for the Determinations for the purposes of section 6 of the Legislation Act.

The 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 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, 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 Determinations, the Minister for Health, the Hon Greg Hunt MP, provided a written application to the Attorney‑General seeking a deferral of sunsetting for the Determinations. On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the Determinations 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 National Health Act 1953 (the Act) provides for pharmaceutical, sickness and hospital benefits, and the provision of medical and dental services. The Act enables legislative instruments to be made in relation to eligible and authorised midwives, and eligible and authorised nurse practitioners. Specific requirements for each are set out in the three separate Determinations, supporting the collaboration of nurse practitioners and midwives with other health professionals in the provision of subsidised medicines and health services.

In 2015 the Government established the Medicare Benefits Schedule (MBS) Review Taskforce (the Taskforce). The MBS is a listing of the Medicare services subsidised by the Australian Government. The Taskforce reviewed more than 5,700 MBS items. In 2018 the Taskforce formed the Nurse Practitioner Reference Group and the Participating Midwife Reference Group to make recommendations to the Taskforce on the relevant MBS items. The Taskforce completed its work on 30 June 2020, and recommendations have been provided to the Government for consideration.

A 24 month deferral will allow sufficient time for consideration by the Government of relevant recommendations of the Taskforce, and how they may inform replacement determinations to be made. The deferral will avoid the need to remake the Determinations in their current form for the short period of time before they are repealed and replacement instruments made. As such, deferral of the sunsetting date of the Determinations is 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 Certificate are provided in Attachment A.

The Determinations which are subject to the Certificate, and which will now sunset at a later day as specified in the Certificate, are 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 Health about the Determinations.

Statement of Compatibility with Human Rights

The Legislation (Deferral of Sunsetting—National Health Midwives and Nurse Practitioners Instruments) Certificate 2020 (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

This 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 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. The instruments specified in this Certificate are the:

• National Health (Collaborative arrangements for midwives) Determination 2010;
•  National Health (Collaborative arrangements for nurse practitioners) Determination 2010; and
•  National Health (Eligible midwives) Determination 2010.

The Determinations are expected to be repealed and replaced within 24 months of their scheduled sunsetting date. In 2015 the Government established the Medicare Benefits Schedule (MBS) Review Taskforce (the Taskforce), which reviewed the more than 5,700 MBS items. The MBS is a listing of the Medicare services subsidised by the Australian Government. In 2018 the Taskforce formed the Nurse Practitioner Reference Group and the Participating Midwife Reference Group to make recommendations to the Taskforce on the relevant MBS items. The Taskforce completed its work on 30 June 2020, and recommendations have been provided to the Government for consideration. A 24 month deferral will allow sufficient time for consideration by the Government of relevant recommendations, and how they may inform replacement determinations to be made.

The Certificate allows the Determinations 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.  

Human rights implications

The Statement of Compatibility for a certificate of deferral of sunsetting focuses on the effect of the deferral instrument, rather than the substantive effect of continuing the instruments that have been deferred.

Before issuing the Certificate, the Attorney-General was satisfied that the Determinations 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 Determinations in their current form for a short period of time before they are expected to be repealed and possibly 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 Determinations will be assessed at that time, including through the requirement to prepare further Statements 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 by ensuring that any proposal to make a replacement instrument that unduly limits human rights and freedoms 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—National Health Midwives and Nurse Practitioners Instruments) Certificate 2020. 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.

Section 4  Deferral of sunsetting

This section provides that the following instruments for which the sunsetting day is 1 October 2020, are repealed by section 51 of the Legislation Act on 1 October 2022:

• National Health (Collaborative arrangements for midwives) Determination 2010;
•  National Health (Collaborative arrangements for nurse practitioners) Determination 2010; and
•  National Health (Eligible midwives) Determination 2010.

Section 5  Repeal of the instrument

This section provides that the Certificate is repealed at the start of 2 October 2022.