Legislation (Deferral of Sunsetting—Seafarers Rehabilitation and Compensation (Notice of Declarations and Specifications)) Amendment 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—Seafarers Rehabilitation and Compensation (Notice of Declarations and Specifications)) Amendment Certificate 2020 (the Amendment Certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003. It amends the Legislation (Deferral of Sunsetting—Seafarers Rehabilitation and Compensation (Notice of Declarations and Specifications)) Certificate 2019 (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 is subject 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 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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005.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 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 The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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.
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 Principal Certificate, extending the previously granted deferral of sunsetting for the Seafarers Rehabilitation and Compensation Act 1992 - Notice of Declarations and Specifications (25/05/1993) (the Seafarers Notice) by an additional 12 months, resulting in a deferral of 24 months. The Seafarers Notice, for which the original sunsetting date was 1 April 2019, will now sunset on 1 April 2021.
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 Best Practice Regulation (OBPR). The OBPR 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 Attorney-General is responsible for administering the Seafarers Rehabilitation and Compensation Act 1992 (the Seafarers Act), the enabling legislation under which the Seafarers Notice was made. The Attorney-General is therefore the rule-maker for the purpose of section 6 of the Legislation Act.
The Amendment Certificate is consistent with the policy intent of the sunsetting arrangements, that legislative instruments should be kept up to date and only remain in force so long as they are needed. Accordingly, further consultation was unnecessary.
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 six, 12, 18 or 24 months by means of a certificate made under that section. In terms of the 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 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, and
d) the explanatory statement for the certificate to include a statement for the reasons of the issue of the certificate.
As the Attorney‑General is the rule-maker for the Seafarers Notice, there is no formal correspondence associated with this Amendment Certificate.
On the basis of the information contained in the statement of reasons below, the Attorney-General is satisfied that the Seafarers Notice would, apart from the operation of the sunsetting provisions, 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 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.
On 29 March 2019, the Attorney-General issued the Principal Certificate under section 51 of the Legislation Act, deferring the sunsetting of the Seafarers Notice from 1 April 2019 to 1 April 2020.
On 14 March 2019, the Seafarers Notice was amended by four legislative instruments which repealed four items from the Seafarers Notice. The deferral of the sunsetting date will apply to the one remaining item in the Seafarers Notice.
The Seafarers Act provides workers' compensation and rehabilitation to a small section of the Australian maritime industry. The Seafarers Notice specifies, for the purposes of paragraph 10(1)(b) of the Act, the kinds of employment which are taken to have contributed in a material degree to the contraction of specified diseases.
Due to the complexity of the process of identifying the diseases that attract this presumption to employment in the maritime sector, supplementary consultation to consider the best standard and its application in that sector and to address stakeholder concerns is ongoing.
Deferring the sunsetting date of the Seafarers Notice for a further 12 months will allow sufficient time to obtain additional expert evidence and to complete industry consultation. This would avoid the need to remake the Notice in its current form for a short period of time before it is repealed and replaced to reflect the industry best standard.
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 as long as they are needed.
More information
Further details on the provisions of the Amendment Certificate are provided in Attachment A.
The Seafarers Notice which is subject to the Amendment Certificate, and which will now sunset at 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 Seafarers Notice and the operation of the Amendment Certificate.
STATEMENT OF COMPATABILITY WITH HUMAN RIGHTS
The Legislation (Deferral of Sunsetting—Seafarers Rehabilitation and Compensation (Notice of Declarations and Specifications)) Amendment Certificate 2020 (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. This 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) of the Legislation Act includes power to repeal, rescind, revoke, amend or vary such a certificate.
The Amendment Certificate amends Deferral of Sunsetting—Seafarers Rehabilitation and Compensation (Notice of Declarations and Specifications)) Certificate 2019 (the Principal Certificate), extending the previously granted deferral of sunsetting for the Seafarers Rehabilitation and Compensation Act 1992 - Notice of Declarations and Specifications (25/05/1993) (Seafarers Notice) by an additional 12 months, resulting in a deferral of 24 months in total. The Seafarers Notice, for which the original scheduled sunsetting day was 1 April 2019, will now sunset on 1 April 2021.
The Seafarers Rehabilitation and Compensation Act 1992 provides workers' compensation and rehabilitation to a small section of the Australian maritime industry. The Seafarers Notice specifies the kinds of employment which are taken to have contributed in a material degree to the contraction of specified diseases.Deferring the sunsetting date of the Seafarers Notice for a further 12 months will allow sufficient time to obtain additional expert evidence and to complete industry consultation. This would avoid the need to remake the Notice in its current form for a short period of time before it is repealed and replaced to reflect the industry best standard.
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 Seafarers Notice would, apart from the sunsetting provisions, cease to be in force within 24 months of the originally scheduled sunsetting day.
The replacement Notice 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 provide a further Statement 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 replacement instruments that unduly limit human rights and freedoms 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—Seafarers Rehabilitation and Compensation (Notice of Declarations and Specifications)) Amendment Certificate 2020. 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
This schedule sets out the amendments to the Legislation (Deferral of Sunsetting—Seafarers Rehabilitation and Compensation (Notice of Declarations and Specifications)) Certificate 2019 (the Principal Certificate) that are necessary to further defer the sunsetting of the Seafarers Rehabilitation and Compensation Act 1992 - Notice of Declarations and Specifications (25/05/1993) (Seafarers Notice) to 1 April 2021.
Item 1 Section 4
This item replaces sections 4 of the Principal Certificate and replaces it with a new operative provision, further delaying the repeal date for the Seafarers Notice.
Item 2 Section 5
This item changes the self-repealing provision of the Principal Certificate so that it takes effect on 2 April 2021, rather than 2 April 2020.