Legislation (Deferral of Sunsetting—National Recovery Plan for Threatened Albatrosses and Giant Petrels 2011-2016) Certificate 2021

Legislation (Deferral of Sunsetting—National Recovery Plan for Threatened Albatrosses and Giant Petrels 2011-2016) Certificate 2021

EXPLANATORY STATEMENT

INTRODUCTION

The Legislation (Deferral of Sunsetting—National Recovery Plan for Threatened Albatrosses and Giant Petrels 2011-2016) Certificate 2021 (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. The Certificate will not be subject to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the certificate is on or before the first anniversary of the originally scheduled sunsetting day, pursuant to subsection 51(4) of that Act (which provides an exemption from disallowance for deferrals of 12 months or less).

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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005.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 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 The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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 National Recovery Plan for threatened albatrosses and giant petrels 2011-2016 (the National Recovery Plan) by 12 months from 1 October 2021 to 1 October 2022.

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. Relevant stakeholders to the National Recovery Plan (such as the Threatened Species Scientific Committee) have been consulted on the intention to defer the sunsetting date of the National Recovery Plan.

The Minister for the Environment, the Hon Sussan Ley MP, advised the Attorney-General of the reasons in support of issuing the certificate. The Minister is the relevant rule-maker for the National Recovery Plan for the purposes of section 6 of the Legislation Act.

The National Recovery Plan will cease to be in force prior to 1 October 2022 due to its repeal and replacement with a new instrument as part of a legislative review. A 12 month deferral will allow sufficient time for further consultation and a replacement instrument to be made. The deferral 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, 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.

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; 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 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 instrument, the Minister for the Environment, the Hon Sussan Ley MP, provided a written application to the Attorney‑General seeking a deferral of sunsetting for the National Recovery Plan. On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the National Recovery Plan 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 Recovery Plan provides a national strategy to guide the activities of government, industry, research organisations, and other stakeholders in the protection, conservation and management of listed threatened albatrosses and petrel species under the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The National Recovery Plan outlines the actions necessary to stop the decline of, and support the recovery of, the species so their chances of survival in nature are maximised.

A five-year Review of the National Recovery Plan was conducted in December 2015 with the inclusion of managers, experts and stakeholders. The Review concluded that a recovery plan for albatrosses and petrels is still required until such time as populations of affected threatened species breeding and/or foraging in Australian jurisdictions have improved to the point where the populations are considered secure.

Making a new National Recovery Plan will require extensive consultation between the Minister and his state counterparts and will be done jointly with the relevant state jurisdictions. Consultation will also involve a range of other stakeholders, including the fishing industry, non-governmental organisations, representatives of Tasmanian Indigenous interest groups, and experts in seabird conservation. 

A 12 month deferral of the sunsetting date will allow sufficient time for this further consultation to be undertaken and a replacement instrument to be made, taking into account the recommendations made in the Review. The deferral 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, deferral of the sunsetting date of the instrument 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 National Recovery Plan 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 Agriculture, Water and the Environment about the National Recovery Plan.

ATTACHMENT A

NOTES ON THE CERTIFICATE

Section 1  Name

This section provides that the Certificate is named the Legislation (Deferral of Sunsetting— National Recovery Plan for Threatened Albatrosses and Giant Petrels 2011-2016) Certificate 2021. 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 National Recovery Plan for threatened albatrosses and giant petrels 2011-2016, for which the sunsetting day is 1 October 2021, is repealed by section 51 of the Legislation Act on 1 October 2022.

Section 5  Repeal of the instrument

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