Legislation (Deferral of Sunsetting—Southern Bluefin Tuna Regulations) Certificate 2018

 EXPLANATORY STATEMENT 

INTRODUCTION

This certificate was made under paragraph 51(1)(c) of the Legislation Act 2003 (Legislation Act) and is a legislative instrument for the purposes of the Legislation Act.

A certificate issued by the Attorney-General under subsection 51(1) of the Legislation Act is not subject to disallowance (Legislation (Exemptions and Other Matters) Regulation 2015, section 10, item 19). As such, a statement of compatibility with human rights is not required (Human Rights (Parliamentary Scrutiny) Act 2011, section 9).

OUTLINE

The purpose of the sunsetting provisions of the Legislation Act is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.

Paragraph 51(1)(c) enables the Attorney-General to issue a certificate to defer the sunsetting day for an instrument for a period of either six or 12 months. The instrument will then cease to be in force 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.

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 Assistant Minister for Agriculture and Water Resources advising the Attorney-General of the reasons in support of issuing the certificate. The Assistant Minister for Agriculture and Water Resources is responsible for administering the Fisheries Management Act 1991, the enabling legislation under which the Fisheries Management (Southern Bluefin Tuna Fishery) Regulations 1995 (the Southern Bluefin Tuna Regulations) were made. As such, the Assistant Minister for Agriculture and Water Resources is the relevant rule-maker for the purposes of section 6 of the Legislation Act. The Australian Fisheries Management Authority (AFMA) was also consulted. 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 Attorney-General is satisfied that the statutory conditions in section 51 of the Legislation Act are met, an instrument’s sunsetting day can be deferred for either six or 12 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 12 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, and

c)       the Attorney-General to issue a certificate that includes a statement of reasons for the issue of the certificate.

On the basis of the information contained in the statement of reasons included in the certificate, the Attorney‑General is satisfied that the criterion in subparagraph 51(1)(b)(i) of the Legislation Act is met.

The certificate issued by the Attorney‑General must be laid before each House of the Parliament no later than six sitting days after it is made. It is a legislative instrument and must be registered on the Federal Register of Legislation, but is not subject to disallowance (Legislation (Exemptions and Other Matters) Regulation 2015, section 10, item 19).

More information

Further detail on the provisions of the certificate is 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 certificate, and from the Department of Agriculture and Water Resources 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—Southern Bluefin Tuna Regulations) 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 2003. 

Section 4 Definitions

This section defines, for the purposes of this certificate:

• ‘AFMA’ to mean the Australian Fisheries Management Authority
• ‘Department’ to mean the Department of Agriculture and Water Resources
• ‘Fisheries Administration Regulations’ to mean the Fisheries Administration Regulations 1992 (FRL reference F2006C00570)
• ‘Fisheries Management Act’ to mean the Fisheries Management Act 1991 (FRL reference C2017C00363)
• ‘Fisheries Management Regulations’ to mean the Fisheries Management Regulations 1992 (FRL reference F2017C00241)
• ‘Legislation Act’ to mean the Legislation Act 2003 (FRL reference C2017C00300), and
• ‘Southern Bluefin Tuna Regulations’ to mean the Fisheries Management (Southern Bluefin Tuna Fishery) Regulations 1995 (FRL reference F2015C00235).

Section 5  Statement of reasons for issue of certificate

This section provides the statement of reasons as required by paragraph 51(2)(a) of the Legislation Act.

The statement of reasons explains why the Attorney-General is satisfied that that the criterion set out in subparagraph 51(1)(b)(i) of the Legislation Act has been met, namely that the Southern Bluefin Tuna Regulations would (apart from the operation of the sunsetting provisions) be likely to cease to be in force within 12 months after its sunsetting day.

Section 6 Deferral of sunsetting of the Regulations

This section provides that the Southern Bluefin Tuna Regulations, for which the sunsetting day is 1 April 2019, are taken to cease to be in force under section 51 of the Legislation Act on 1 October 2019.

Section 7 Repeal of this instrument

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