Legislation (Deferral of Sunsetting—Safety, Rehabilitation and Compensation (Specified Rate per Kilometre) Notice) Certificate 2018

EXPLANATORY STATEMENT

INTRODUCTION

This certificate was 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 is not 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 sunsetting day (subsection 51(4) of the Legislation Act).

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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005.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 The instrument will then be repealed on the day specified in the certificate instead of the scheduled sunsetting day.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.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

A certificate of deferral of sunsetting for six or 12 months issued by the Attorney-General under subsection 51(1) of the Legislation Act is not subject to disallowance (subsection 51(4) of the Legislation Act). As such, a statement of compatibility with human rights is not required (section 9 of the Human Rights (Parliamentary Scrutiny) Act 2011).

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 this certificate was issued, the Attorney‑General considered the general obligation to consult imposed by section 17 of the Legislation Act.

Consultation involved the Hon Darren Chester MP, Minister for Veterans’ Affairs and the Hon Kelly O’Dwyer MP, Minister for Jobs and Industrial Relations who share responsibility as rule-makers, separately advising the Attorney‑General of the reasons in support of issuing the certificate. The Safety, Rehabilitation and Compensation (Specified Rate per Kilometre) Notice 2008 (3) (the Safety Notice) is made under the Safety, Rehabilitation and Compensation Act 1988 (SRCA) which the Minister for Jobs and Industrial Relations is responsible for administering. The Safety Notice is also taken to be made under the Safety, Rehabilitation and Compensation (Defence-related Claims) Act 1988 (the DRCA), by virtue of transitional provisions in the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017. The Minster for Veterans’ Affairs is responsible for administering the DRCA.

As such, both the Minister for Veterans’ Affairs and the Minister for Jobs and Industrial Relations are the relevant rule‑makers 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 this certificate

If the conditions in section 51 of the Legislation Act are met, an instrument’s sunsetting day can be deferred for either 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

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 or 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 the instrument, and

c)       the Attorney-General to issue a certificate. The explanatory statement for a certificate to include a statement of reasons for the issue of the certificate.

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 the 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 the issue of this certificate.

The Safety Notice is made under the SRCA and sets out the rate of compensation for specified travel under the SRCA.

The Safety Notice is also taken to be made under the DRCA and sets out the rate of compensation for specified travel under the DRCA.

A deferral is requested on the basis that the instrument will be revoked and remade following review of the rate for compensation, and thus is likely to cease to be in force within 12 months after the scheduled sunsetting day.

A 12 month deferral of the sunsetting day for the Safety Notice will avoid the need to remake Safety Notice in the current form for the short period before it ceases to be in force.

As such, a deferral of the sunsetting of the Safety Notice would be consistent with the policy intent of the sunsetting regime that legislative instruments should be kept up to date and only remain in force for so long as they are needed.

More information

Further details on the provisions of the certificate are provided in Attachment A.

The instrument which is the subject of this certificate, and which will now sunset at a later day as specified in this certificate, is available on the Federal Register of Legislationhttp://www.comlaw.gov.au.

Further information may be requested from the Attorney-General’s Department about the operation of this declaration, and from the Department of Veterans’ Affairs or Department of Jobs and Small Business about the instrument to which this certificate applies.

ATTACHMENT A

NOTES ON THE CERTIFICATE           

Section 1 Name

This section provides that the certificate is named the Legislation (Deferral of Sunsetting—Safety, Rehabilitation and Compensation (Specified Rate per Kilometre) Notice) Certificate 2018. The certificate may be cited by that 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

Subsection 4(1) provides that the Safety Notice, for which the sunsetting day is 1 October 2018, is taken to be repealed under section 51 of the Legislation Act on 1 October 2019.

Subsection 4(2) provides that the reference to the Safety Notice in subsection 4(1) includes a reference to the Safety Notice as in force for the purposes of the DRCA. While the Safety Notice was originally made under the SRCA, due to subitem 63(2) of Part 2 of Schedule 1 to the Safety, Rehabilitation and Compensation Legislation Amendment (Defence Force) Act 2017 the Safety Notice has also been taken to have been made under or for the purposes of the equivalent provisions in the DRCA. This subsection is intended to remove any doubt as to the effect of the certificate in relation to the DRCA.

The proposed note to subsection 4(2) further clarifies the intent of that subsection.

Section 5 Repeal of this instrument

This section provides that the certificate is repealed at the start of 2 October 2019.