Legislation (Deferral of Sunsetting—Recovery Plans) 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—Recovery Plans) Certificate 2023 (the Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003 (Cth) (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. Pursuant to subsection 51(4) of the Legislation Act the Certificate will not be subject to the disallowance provisions of that Act as the deferred sunsetting day specified in the Certificate is on or before the first anniversary of the originally scheduled sunsetting day. Subsection 51(4) of the Legislation Act provides that a certificate of deferral is exempt from disallowance if it defers the sunsetting day of an instrument by up to 12 months.
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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration. 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 The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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 following instruments by 12 months from 1 April 2023 to 1 April 2024 (together, the ‘Recovery Plan Instruments):
(a) The Instrument revoking and making recovery plan (5 February 2013) (Federal Register of Legislation No. F2013L00289) made under section 269A of the Environment Protection and Biodiversity Conservation Act 1999;
(b) The Instrument Adopting and Revoking Recovery Plans (21 February 2013) (Federal Register of Legislation No. F2013L00526) made under section 269A of the Environment Protection and Biodiversity Conservation Act 1999;
(c) The Instrument of Approval of Variation to Adopted Recovery Plan (21 February 2013) (Federal Register of Legislation No. F2013L00447) made under section 280 of the Environment Protection and Biodiversity Conservation Act 1999.
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. Where the deferral is for a short period (6 or 12 months), the certificate is exempt from disallowance because the instrument will shortly be reviewed and, if remade, subject to parliamentary scrutiny. Subjecting short term certificates of deferral to disallowance would undermine the flexibility afforded by their further but strictly limited postponement of sunsetting. In this case, the Recovery Plan Instruments are expected to be reviewed and remade within 12 months of the current sunsetting date as a result of an extensive strategic reform processes underway necessitating additional time for policy development, consultation with stakeholders and introduction and implementation of law reform.
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 Recovery Plan Instruments are statutory conservation documents. The Department of Climate Change, Energy, the Environment and Water has worked closely with the independent Threatened Species Scientific Committee to ensure that there is a Recovery Plan (and/or Conservation Advice) in place for every listed species/ecological community that requires one.
Consultation and design of new conservation planning mechanisms intended to replace those that are sunsetting are currently being undertaken. The extensive strategic reform processes underway necessitate consultation with stakeholders in addition to policy development and introduction and implementation of law reform. The Department of Climate Change, Energy, the Environment and Water will consult with the Threatened Species Scientific Committee and relevant stakeholders to ensure that they are aware of the continued operation of the Recovery Plan Instruments.
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 instruments 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 12 month deferral will allow sufficient time for further consultation prior to the replacement instruments being made. The deferral will avoid the need to remake the Recovery Plan Instruments in their current form for the short period of time before they are repealed and replacement instruments made. As such, given that deferral of the sunsetting date of the Recovery Plan Instruments 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 Legislation Act section 17.
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 the Recovery Plan Instruments, the Minister for the Environment and Water, the Hon Tanya Plibersek MP, provided a written application to the Attorney‑General seeking a certificate of deferral of sunsetting for the Recovery Plan Instruments. On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the Recovery Plan Instruments 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 Instrument Adopting and Revoking Recovery Plans (21 February 2013) and the Instrument revoking and making recovery plan (5 February 2013) make or adopt recovery plans for threatened species and ecological communities under s 269A of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Instrument of Approval of Variation to Adopted Recovery Plan (21 February 2013) approves a variation to an adopted recovery plan under s 280 of the EPBC Act.
The Recovery Plan Instruments will likely cease to be in force in their current form within 24 months of their original sunsetting day. Deferring the sunsetting date will allow sufficient time for the Department of Climate Change, Energy, the Environment and Water to deliver strategic conservation planning reforms as part of the Government’s response to Professor Graeme Samuel’s review of the EPBC Act, ensuring that statutory conservation instruments remain in place for all listed threatened species/ecological communities that are required to have one under the EPBC Act until replacement instruments can be developed. Therefore, it is practical and appropriate for the existing Recovery Plans to remain in place until they are repealed as anticipated within the next 12 months. As such, deferral of the sunsetting date of the Recovery Plan Instruments 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 Recovery Plans 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 Climate Change, Energy, the Environment and Water about the Recovery Plans to which the Certificate applies.
Attachment A
NOTES ON SECTIONS
Section 1 Name
This section provides that the Certificate is named the Legislation (Deferral of Sunsetting—Recovery Plans) 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 following instruments, for which the sunsetting day is 1 April 2023, are repealed by section 51 of the Legislation Act 2003 on 1 April 2024:
- the Instrument revoking and making recovery plan (5 February 2013) (Federal Register of Legislation No. F2013L00289) made under section 269A of the Environment Protection and Biodiversity Conservation Act 1999;
- the Instrument Adopting and Revoking Recovery Plans (21 February 2013) (Federal Register of Legislation No. F2013L00526) made under section 269A of the Environment Protection and Biodiversity Conservation Act 1999; and
- the Instrument of Approval of Variation to Adopted Recovery Plan (21 February 2013) (Federal Register of Legislation No. F2013L00447) made under section 280 of the Environment Protection and Biodiversity Conservation Act 1999.
Section 5 Repeal of the instrument
This section provides that the Certificate is repealed at the start of 2 April 2024.