Legislation (Deferral of Sunsetting—Recovery Plans) (No. 2) Amendment 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) (No. 2) Amendment Certificate 2023 (the Amendment Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003. It amends the Legislation (Deferral of Sunsetting—Recovery Plans) Certificate (No. 2) 2022 (the Principal Certificate). It is a legislative instrument for the purposes of the Legislation Act and must be registered on the Federal Register of Legislation. The Amendment Certificate will be subjected to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the Amendment 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 for 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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on 1 April or 1 October immediately on or following the tenth anniversary of its registration.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 date of an instrument for a period of 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The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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. In this case, new instruments to replace the Recovery Plan Instruments are expected to be made within 24 months of the current sunsetting days as part of strategic conservation planning being undertaken by the Department of Climate Change, Energy, the Environment and Water (the Department).
Through the operation of subsection 33(3) of the Acts Interpretation 1901, the Attorney-General’s power under paragraph 51(1)(c) includes the power to repeal, rescind, revoke, amend or vary such a certificate.
The Amendment Certificate amends the Principal Certificate, extending the previously granted deferral of sunsetting for the following instruments by an additional 12 months, resulting in a deferral of 24 months in total (together the ‘Recovery Plan Instruments’):
a) Environment Protection and Biodiversity Conservation Act 1999 ‑ section 269A ‑ Instrument Adopting and Revoking Recovery Plans (NSW, SA and WA) (10/09/2012);
b) Environment Protection and Biodiversity Conservation Act 1999 ‑ section 269A ‑ Instrument Adopting and Revoking Recovery Plans (NSW, QLD, SA, TAS and WA) (06/07/2012).
The Recovery Plan Instruments, for which the previous sunsetting day was 1 October 2023, will now sunset on 1 October 2024.
PROCESS BEFORE THE AMENDMENT CERTIFICATE WAS MADE
Regulatory impact analysis
Certificates of deferral 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 Amendment 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 made under subsection 269A(7) of the Environment Protection and Biodiversity Conservation Act 1999 (EPBC Act). The Recovery Plan Instruments revoke three state-led recovery plans and adopt fifteen state-led recovery plans for a number of listed threatened species and ecological communities.
The Environment Protection and Biodiversity Conservation Act 1999 ‑ section 269A ‑ Instrument Adopting and Revoking Recovery Plans (NSW, SA and WA) (10/09/2012) is a legislative instrument which adopts six state recovery plans for various fauna and flora. Similarly, the Environment Protection and Biodiversity Conservation Act 1999 ‑ section 269A ‑ Instrument Adopting and Revoking Recovery Plans (NSW, QLD, SA, TAS and WA) (06/07/2012) is a legislative instrument which adopts nine state recovery plans for various fauna and flora. These recovery plans provide plans for threatened species listed under the EPBC Act.
Previous consultation on the deferral process was undertaken with the statutory Commonwealth Threatened Species Scientific Committee. The Department has worked closely with the independent Commonwealth Threatened Species Scientific Committee to ensure that a statutory conservation document (Recovery Plan and/or Conservation Advice) is in place for every listed species or ecological community that requires one.
The Department is currently reviewing and considering the remaking of the Recovery Plan Instruments as part of wider strategic conservation planning reform. The Department will consult with 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 is intended to 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.
The Amendment Certificate will ensure that the existing Recovery Plan Instruments remain in place for all listed threatened species and ecological communities covered by the instruments and enable the Department to complete its review and remaking of the instruments. The Amendment Certificate 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 section 17 of the Legislation Act.
Statutory preconditions relevant to the Amendment 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 originally scheduled 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 or avoided, or
(iii) the dissolution or expiration of the House of Representatives of 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 the sunsetting provisions not applying to the instrument, and
c) the Attorney-General to issue a certificate. The explanatory statement for the certificate must include a statement for the reasons of 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 an amendment of the previous deferral certificate to extend the deferral of sunsetting for the Recovery Plans from 12 months to 24 months. 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 of their originally scheduled 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 Amendment Certificate
For the purposes of subsection 51(5) of the Legislation Act, this section sets out the statement of the reasons for issuing the Amendment Certificate.
The Minister for the Environment and Water may make or adopt recovery plans for threatened fauna and threatened flora (other than extinct or conservation dependent species), and threatened ecological communities listed under the EPBC Act. Recovery plans set out the research and management actions necessary to stop the decline of, and support the recovery of, listed threatened species or threatened ecological communities. The aim of a recovery plan is to maximise the long-term survival in the wild of a threatened species or ecological community.
The Recovery Plan Instruments were made under subsection 269A(7) of the EBPC Act to adopt state‑led recovery plans for a number of listed threatened species and ecological communities. Collectively, the two instruments revoke three state-led recovery plans and adopt fifteen state-led recovery plans prepared by New South Wales, Queensland, South Australia, Tasmania and Western Australia.
On 22 September 2022, the Attorney-General issued the Principal Certificate under section 51 of the Legislation Act, deferring the sunsetting of the Recovery Plan Instruments from 1 October 2022 to 1 October 2023.The rule-maker for the Recovery Plan Instruments, the Minister for the Environment and Water, subsequently sought the Attorney‑General’s approval to further defer the sunsetting of the Recovery Plan Instruments by an additional 12 months through the issue of an Amendment Certificate that would delay the repeal date specified in the Principal Certificate.
Further deferring the sunsetting date will allow additional time for the Department to deliver strategic conservation planning reforms, ensuring that statutory conservation instruments remain in place for all listed threatened species and ecological communities that are required to have one under the EPBC Act until replacement instruments can be developed. Deferring the sunsetting date of the Recovery Plan Instruments for a further 12 months will also avoid the need to remake the Recovery Plan Instruments for a short period of time. As such, the Amendment Certificate 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. Accordingly, the Recovery Plan Instruments will likely cease to be in force in their current form within 24 months of their original sunsetting day.
Further information
Further details on the provisions of the certificate are provided in Attachment A.
As the Amendment Certificate is a purely amending instrument, it will be automatically repealed by the operation of section 48A of the Legislation Act at the conclusion of the disallowance period.
The Recovery Plan Instruments, which will now be repealed on a later day as specified in the Amendment 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 Amendment Certificate, and from the Department about the Recovery Plan Instruments.
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
The Legislation (Deferral of Sunsetting—Recovery Plans) (No. 2) Amendment Certificate 2023 (the Amendment Certificate) is compatible with human rights and freedoms recognised or declared in international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (the Human Rights Act).
Overview of the Amendment Certificate
The Amendment 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 6, 12, 18 or 24 months. The instrument will then be repealed on the day specified in the certificate instead of the scheduled sunsetting day.
Through the operation of subsection 33(3) of the Acts Interpretation Act 1901, the Attorney-General’s power under paragraph 51(1)(c) includes the power to repeal, rescind, revoke, amend or vary such a certificate.
The Amendment Certificate amends the Legislation (Deferral of Sunsetting—Recovery Plans) Certificate (No. 2) 2022 (the Principal Certificate), extending the previously granted deferral of sunsetting for the following instruments by an additional 12 months, resulting in a deferral of 24 months in total (together the ‘Recovery Plan Instruments’):
a) the Environment Protection and Biodiversity Conservation Act 1999 ‑ section 269A ‑ Instrument Adopting and Revoking Recovery Plans (NSW, SA and WA) (10/09/2012);
b) the Environment Protection and Biodiversity Conservation Act 1999 ‑ section 269A ‑ Instrument Adopting and Revoking Recovery Plans (NSW, QLD, SA, TAS and WA) (06/07/2012).
The Recovery Plan Instruments, for which the previous scheduled sunsetting day was 1 October 2023, will now sunset on 1 October 2024.
The Recovery Plan Instruments are expected to be repealed and replaced within 24 months of their scheduled sunsetting day as part of strategic conservation planning reform. The Amendment Certificate allows the Recovery Plan 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 the instruments which would have a limited duration prior to their expected repeal and replacement, or where circumstances prevent the making of a replacement instrument prior to the sunsetting day.
Human rights implications
An amending certificate of deferral of sunsetting extends the operation of the instruments but does not change or affect the rights engaged under the original instruments. The Recovery Plan Instruments do not engage any applicable rights or freedoms as the content of the recovery plans pertain to the conservation status of the relevant species or ecological community. Therefore, the Recovery Plan Instruments are to that extent compatible with the human rights and freedoms recognised or declared by the international instruments listed in section 3 of the Human Rights Act.
Before issuing the Amendment Certificate, the Attorney-General was satisfied that the Recovery Plan Instruments would, apart from the sunsetting provisions, cease to be in force within 24 months of the originally scheduled sunsetting day. Any replacement instruments will be subject to parliamentary scrutiny and oversight through disallowance processes unless otherwise exempt. The human rights impact will be individually assessed at that time, including through the requirement to prepare further Statement of Compatibility with Human Rights.
Conclusion
The Amendment Certificate is compatible with 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, and ensures that any proposal to make a replacement instrument will be subject to parliamentary oversight and scrutiny.
ATTACHMENT A
NOTES ON THE AMENDMENT CERTIFICATE
Section 1 Name
This section provides that the Amendment Certificate is named the Legislation (Deferral of Sunsetting—Recovery Plans) (No. 2) Amendment Certificate 2023. The Amendment Certificate may be cited by this name.
Section 2 Commencement
This section provides for the Amendment Certificate to commence on the day after it is registered.
Section 3 Authority
This section provides that the Amendment Certificate is made under paragraph 51(1)(c) of the Legislation Act.
Section 4 Schedules
This section provides that each instrument specified in a Schedule to the Amendment Certificate is amended or repealed as set out in that Schedule, and any other items have effect according to their terms.
Schedule 1 Amendments
The Schedule sets out the amendments to the Principal Certificate that are necessary to further defer the sunsetting of the Recovery Plan Instruments to 1 October 2024.
Item 1 Section 4
This item amends section 4 of the Principal Certificate by omitting and substituting the sunsetting date of 1 October 2023 with 1 October 2024.
Item 2 Section 5
This item amends section 5 of the Principal Certificate so that it is repealed at the start of 2 October 2024, rather than 2 October 2023.