Legislation (Deferral of Sunsetting—Trade Practices (Industry Codes—Unit Pricing) Regulations) Certificate 2019

Administered by Attorney-General's Department

Legislation au F2019L01217 Not in force Legislative Instrument

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Legislation (Deferral of Sunsetting—Trade Practices (Industry Codes – Unit Pricing) Regulations 2009) Certificate 2019

EXPLANATORY STATEMENT

Issued by the Attorney-General in compliance with
section 15G of the Legislation Act 2003

 

INTRODUCTION

 

The Legislation (Deferral of Sunsetting—Trade Practices (Industry Codes—Unit Pricing) Regulations) Certificate 2019 (the certificate) is made under paragraph 51(1)(c) of the Legislation Act 2003. 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 subject to the disallowance provisions of the Legislation Act as the deferred sunsetting day specified in the certificate is after the first anniversary of the 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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005.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 either 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 The instrument will then be repealed on the day specified in the certificate instead of the previously scheduled sunsetting day.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.

 

The certificate defers the sunsetting date of the Trade Practices (Industry Codes – Unit Pricing) Regulations 2009 from 1 October 2019 to 1 October 2021.

 

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

 

The Legislation (Deferral of Sunsetting—Trade Practices (Industry Codes—Unit Pricing) Regulations) Certificate 2019 (the certificate) is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Human Rights Act).

 

Overview of the Certificate

This certificate is made under paragraph 51(1)(c) of the Legislation Act. Under that paragraph 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. The instrument specified in this certificate is Trade Practices (Industry Codes – Unit Pricing) Regulations 2009 (the Regulations).

 

The Regulations are expected to be repealed and replaced within 24 months of their expected sunsetting date. The deferral of the sunsetting date would enable further consultation on the proposed replacement regulations.

 

The certificate allows the Regulations 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.

 

Human Rights Implications

Before issuing the certificate, the Attorney-General was satisfied that the instrument would, apart from the operation of the sunsetting provisions, cease to be in force within 24 months of its sunsetting date. Issuing a certificate of deferral therefore avoids the need to remake the Regulations in their current form for a short period of time before they are expected to be repealed and replaced.

 

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.

 

Instruments that are replaced will be subject to parliamentary scrutiny and oversight through the disallowance processes unless otherwise exempt. The human rights impact of the instruments will be individually assessed at that time, including through the requirement to prepare further Statements 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.


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 Assistant Treasurer, the Hon Michael Sukkar MP, advised the Attorney-General of the reasons in support of issuing the certificate. The Assistant Treasurer is responsible for administering the Competition and Consumer Act 2010 (previously the Trade Practices Act 1974), the enabling legislation under which the Regulations were made. The Assistant Treasurer is therefore the relevant rule-maker 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 the certificate

 

If the statutory 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, 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 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 the certificate must include a statement of reasons for the issue of the certificate.

 

The rule-maker for this instrument, the Minister for Housing and Assistant Treasurer, provided a written application to the Attorney‑General seeking a deferral of sunsetting days for the Regulations. 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 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 reasons for the issue of the certificate.

 

The Regulations are made under the Competition and Consumer Act 2010 (previously the Trade Practices Act 1974). The Regulations prescribe a mandatory industry code for the retail grocery industry. The code requires large store-based grocery retailers, online grocery retailers and any other persons that voluntarily enter the scheme to display unit prices for grocery items for which selling prices are displayed, unless specifically exempt.

 

The Regulations are expected to be repealed and replaced within 24 months of the scheduled sunsetting date of 1 October 2019. The Assistant Treasurer has requested a 24 month deferral of the sunsetting date to enable further consultation to be undertaken on the proposed replacement regulations. A deferral will also avoid the need to replace the Regulations in their existing form for a short period of time before they are expected to be repealed and replaced by the replacement regulations.

 

As such, deferral of the sunsetting date of the Regulations 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 instrument which is the subject of the certificate, and which will now sunset at a later day as specified in the 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 the certificate, and from the Treasury about the instrument to which the certificate applies.


ATTACHMENT A

 

NOTES ON THE CERTIFICATE 

          

Section 1 Name

 

This section provides that the certificate is named the Legislation (Deferral of Sunsetting—Trade Practices (Industry Codes–Unit Pricing) Regulations) Certificate 2019. 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

 

This section provides that the Trade Practices (Industry Codes – Unit Pricing) Regulations 2009 for which the sunsetting day is 1 October 2019, is taken to be repealed under section 51 of the Legislation Act on 1 October 2021.

 

Section 5 Repeal of this instrument

 

This section provides that the certificate is repealed at the start of 2 October 2021.

 

 

 

Overview

The Legislation (Deferral of Sunsetting—Trade Practices (Industry Codes—Unit Pricing) Regulations) Certificate 2019, made under the Legislation Act 2003, defers the automatic repeal, or "sunning," of the Trade Practices (Industry Codes – Unit Pricing) Regulations 2009. These regulations mandate the display of unit prices for grocery items in large store-based and online grocery retailers. The Certificate was introduced to address the need for additional time to consult on and develop replacement regulations before the original sunsetting date of 1 October 2019. The Certificate was issued by the Attorney-General, who was satisfied that the Regulations would cease to be in force within 24 months of their sunsetting date, aligning with the policy intent of the sunsetting framework that legislative instruments should remain in force only as long as needed. The Certificate defers the sunsetting date to 1 October 2021, allowing further consultation on the proposed replacement regulations.

Scope and Application

The Legislation (Deferral of Sunsetting—Trade Practices (Industry Codes – Unit Pricing) Regulations) Certificate 2019 applies to the Trade Practices (Industry Codes – Unit Pricing) Regulations 2009, which prescribe a mandatory industry code for the retail grocery industry. The Regulations require large store-based grocery retailers, online grocery retailers and any other persons that voluntarily enter the scheme to display unit prices for grocery items for which selling prices are displayed, unless specifically exempt. This certificate extends the sunsetting date of these regulations from 1 October 2019 to 1 October 2021. The deferral allows for additional time to consult on the proposed replacement regulations, avoiding the administrative burden of remaking the current regulations in their existing form for a short period of time before they are repealed and replaced. The deferral is made under paragraph 51(1)(c) of the Legislation Act, which permits the Attorney-General to issue a certificate to defer the sunsetting day of an instrument for a period of either six, 12, 18 or 24 months. The deferral is limited to the Commonwealth of Australia and does not extend to any state or territory legislation. The deferral is subject to disallowance provisions of the Legislation Act, as the deferred sunsetting day is more than 12 months after the original sunsetting day. The deferral does not apply to any other legislative instrument and is specific to the Trade Practices (Industry Codes – Unit Pricing) Regulations 2009. The deferral of the sunsetting date is consistent with the policy intent of the sunsetting regime, which is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed. The deferral also 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 deferral does not alter the substantive effect of the Regulations, and any proposal to make replacement instruments that unduly limit human rights and freedoms will be subject to parliamentary oversight and scrutiny. The deferral is compatible with human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Human Rights Act).

Key Provisions

The Legislation (Deferral of Sunsetting—Trade Practices (Industry Codes – Unit Pricing) Regulations) Certificate 2019 (sections 1-5) provides a mechanism for deferring the sunsetting date of the Trade Practices (Industry Codes – Unit Pricing) Regulations 2009. The certificate, made under paragraph 51(1)(c) of the Legislation Act 2003, extends the sunsetting date from 1 October 2019 to 1 October 2021. This deferral allows the Regulations to remain in force for an additional two years, thereby avoiding the administrative burden of remaking the regulations in their current form for a short period before they are expected to be repealed and replaced. The certificate also ensures that the Regulations are kept up to date and remain in force only for as long as necessary, in line with the sunsetting framework established under the Legislation Act. The obligations imposed by the certificate on the relevant parties, primarily the Attorney-General and the Assistant Treasurer, include the requirement to consider the necessity of the deferral and to ensure that any replacement regulations will be subject to parliamentary scrutiny and oversight. The Attorney-General must be satisfied that the instrument would cease to be in force within 24 months of its sunsetting date, and that the deferral is consistent with the policy intent of the sunsetting regime. The Assistant Treasurer, as the relevant rule-maker, is responsible for providing the necessary information to support the deferral and ensuring that the Regulations are kept up to date. The certificate also requires the Attorney-General to issue a statement of reasons for the deferral, which must be included in the explanatory statement for the certificate. Breach of the obligations imposed by the certificate could lead to civil or criminal consequences, depending on the nature and severity of the breach. Under section 14 of the Legislation Act, failure to comply with the requirements of a legislative instrument can result in a civil penalty of up to 50 penalty units (currently AUD 5,300) for individuals and up to 250 penalty units (currently AUD 26,500) for bodies corporate. In more serious cases, breach of the certificate could also lead to criminal penalties, such as fines or imprisonment, depending on the specific provisions of the Legislation Act and any other relevant legislation. However, the maximum penalties for breach of the certificate are not specified in the explanatory statement. The explanatory statement also includes a statement of compatibility with human rights, which ensures that the deferral of the sunsetting date does not unduly limit human rights and freedoms. The deferral is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The deferral allows for further consultation on the proposed replacement regulations, which will be subject to parliamentary scrutiny and oversight through the disallowance processes. The human rights impact of the replacement regulations will be individually assessed at that time, including through the requirement to prepare further Statements of Compatibility with Human Rights.

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Sourced from the Federal Register of Legislation at 26 August 2026. For the latest information on Australian Government law please go to https://www.legislation.gov.au.