Legislation (Exemptions and Other Matters) Amendment (Autonomous Sanctions) Regulations 2022

Administered by Attorney-General's Department

Legislation au F2022L00341 Regulations Not in force Legislative Instrument

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LEGISLATION (EXEMPTIONS AND OTHER MATTERS) AMENDMENT

(autonomous sanctions) Regulations 2022

 

EXPLANATORY STATEMENT
 

Issued by authority of the Attorney-General

 

Purpose and operation of the Instrument

The Legislation Act 2003 (Legislation Act) establishes a comprehensive regime for the publication of Commonwealth Acts and instruments. It also provides for the registration, tabling, parliamentary scrutiny, disallowance and sunsetting of instruments.

 

Section 62 of the Legislation Act provides that the Governor-General may make regulations prescribing matters required or permitted by the Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to that Act.

Part 4 of Chapter 3 of the Legislation Act provides for the sunsetting of legislative instruments. Sunsetting is the process by which instruments are automatically repealed approximately 10 years after they are made unless steps are taken to preserve their operation, or the instruments are exempt from sunsetting.

Section 54 of the Legislation Act provides for instruments to which the sunsetting regime in Part 4 of Chapter 3 does not apply. Subsection 54(2) of the Legislation Act provides that instruments prescribed by regulation for the purposes of paragraph 54(2)(b) are not subject to sunsetting. 

The Legislation (Exemptions and Other Matters) Regulation 2015 (the Principal Regulation) prescribes instruments that are exempt from sunsetting. Section 12 of the Principal Regulation prescribes particular instruments that are exempt from sunsetting under paragraph 54(2)(b) of the Act.

 

The Legislation (Exemptions and Other Matters) Amendment (Autonomous Sanctions) Regulations 2022 (the Amendment Regulations) amend the Principal Regulation to provide a sunsetting exemption for legislative instruments made under regulations 6, 6A, 7, subregulation 8(1) and regulation 9 of the Autonomous Sanctions Regulations 2011.

 

Autonomous Sanctions Regulations 2011

The Autonomous Sanctions Act 2011 provides for autonomous sanctions measures to be applied by regulation. The Autonomous Sanctions Regulations 2011 (AS Regulations) facilitate the conduct of Australia’s relations with certain countries through the imposition of a range of autonomous sanctions measures. Such measures include targeted financial sanctions and/or travel bans on persons and entities designated by the Minister by legislative instrument for this purpose. 

 

Regulation 6

Legislative instruments made by the Minister under regulation 6 of the AS Regulations designate persons or entities that are subject to targeted financial sanctions and declare persons who are subject to travel bans due to their involvement in specified activities relating to particular countries. This means that the prohibition in the AS Regulations on making an asset available to a designated person or entity will apply. It also prevents a declared person from travelling to, entering or remaining in Australia.

 

Regulation 6A

Legislative instruments made by the Minister under regulation 6A of the AS Regulations designate persons or entities that are subject to targeted financial sanctions and declare persons who are subject to travel bans due to their involvement in thematically-defined activities such as contributing to the proliferation of weapons of mass destruction, causing or otherwise participating in a cyber incident, engaging in an act of corruption that is serious or engagement in serious human rights abuses. This means the prohibitions in the AS Regulations on making an asset available to a designated person or entity will apply. It also prevents a declared person from travelling to, entering or remaining in Australia in specific circumstances.

 

Regulation 7

Legislative instruments made by the Minister under regulation 7 of the AS Regulations designate a ‘controlled asset’ as a ‘designated asset’. This means there would be restrictions on using, dealing with, or making available such assets.

 

Subregulation 8(1)

Legislative instruments made by the Minister under subregulation 8(1) of the AS Regulations designate ‘sanctioned vessels’. Under subregulation 8(4) the Minister may direct a sanctioned vessel to leave Australia (including by a particular route), or to not enter a particular port or place, or any port or place, in Australia.

 

Regulation 9

Under regulation 9 of the AS Regulations, a designation or declaration made under regulations 6, 6A, 7 or subregulation 8(1) automatically ceases to have effect three years from the date it commenced, unless specifically continued in effect for a further three years by legislative instrument made pursuant to subsection 9(3).

 

Exemption from sunsetting

 

It is appropriate that legislative instruments made under regulations 6, 6A, 7, subregulation 8(1) and regulation 9 be exempt from sunsetting, as every three years the Minister must review their ongoing relevance and whether they should continue in effect. If these legislative instruments were to remain subject to sunsetting, the Minister would be required to conduct a fitness-for-purpose sunsetting review of instruments that would have already been reviewed on three occasions in the preceding ten-year period. If the sanctions applied by the instrument were still required, a replacement instrument would need to be made, despite the tailored cessation and extension mechanisms set out in the AS Regulations.

 

The Legislation Act does not specify any conditions that must be fulfilled before the power to grant exemptions from sunsetting may be exercised. However, there are established criteria against which the Attorney‑General considers all applications to exempt an instrument or class of instruments from sunsetting. The legislative instruments made under regulations 6, 6A, 7, subregulation 8(1) and regulation 9 are subject to a more stringent statutory review process than is set out in the Legislation Act, and preserving that process is important. The sunsetting exemptions created by the Amendment Regulations are justified on this basis.  

Consultation

The Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act.

The Minister for Foreign Affairs, Senator the Hon Marise Payne, who has responsibility for the Autonomous Sanctions Regulations 2011, applied to the Attorney-General seeking an exemption from sunsetting for all legislative instruments made under regulations 6, 6A, 7 and subregulation 8(1) of the Autonomous Sanctions Regulations 2011, as well as legislative instruments made under regulation 9 continuing in effect such designations or declarations.

In preparing the application for exemption, the Department of Foreign Affairs and Trade consulted internally, as well as with other government agencies, all of whom supported the exemption application. Public consultation was not considered appropriate and was not undertaken.

 

Regulation Impact Statement

The Amendment Regulations do not have any regulatory impact. The OBPR reference is OBPR22-01793.

OTHER DETAILS

 

Details of the Amendment Regulations are set out in the Attachment A.

 

The Amendment Regulations are a legislative instrument for the purposes of the Legislation Act.

 

The Amendment Regulations commence immediately after registration. 

 

The Amendment Regulations, the Principal Regulations and the Legislation Act are available on the Federal Register of Legislation https://www.legislation.gov.au/.


Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Legislation (Exemptions and Other Matters) Amendment (Autonomous Sanctions) Regulations 2022

 

The Legislation (Exemptions and Other Matters) Amendment (Autonomous Sanctions) Regulations 2022 (the Amendment Regulations) are 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.

 

Overview

The Legislation Act 2003 (Legislation Act) establishes a comprehensive regime for the publication of Commonwealth Acts and Instruments and provides for the sunsetting of legislative instruments. Sunsetting is the process by which instruments are automatically repealed approximately 10 years after they are made unless steps are taken to preserve their operation or the instruments are exempt from sunsetting.

The Legislation (Exemptions and Other Matters) Regulation 2015 (the Principal Regulation) prescribe classes of instruments (at section 11) and particular instruments (at section 12) that are exempt from sunsetting under paragraph 54(2)(b) of the Act.

 

The Amendment Regulations are made under section 62 of the Legislation Act and amend the Principal Regulation by adding item 10B in section 12 of the Principal Regulations to create an exemption from sunsetting for legislative instruments made under regulations 6, 6A, 7, subregulation 8(1) and regulation 9 of the Autonomous Sanctions Regulations 2011.

 

The sunsetting exemptions made by the Amendment Regulations are in accordance with established policy criteria for the granting of exemptions.

 

Autonomous Sanctions Regulations 2011

The Amendment Regulations provide an exemption from sunsetting for legislative instruments made under regulations 6, 6A, 7, subregulation 8(1) and regulation 9 of the Autonomous Sanctions Regulations 2011. The exemption from sunsetting for these instruments does not raise human rights issues as these instruments are subject to a more stringent statutory review process than is required by the sunsetting regime set out in the Legislation Act. The exemption will preserve the operation of that statutory review process.

 

Conclusion

Exemptions from sunsetting do not alter the content of the laws to which those exemptions apply. Sunsetting exemptions merely ensure that the legislative instruments in question are not automatically repealed on the first 1 April or 1 October that falls on or after the tenth anniversary of their registration. The Regulations are compatible with human rights because the exemptions from sunsetting do not engage any of the rights or freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. The compatibility with human rights of legislative instruments made under regulations 6, 6A, 7, subregulation 8(1) and regulation 9 will be assessed when those instruments are made or continued in effect. 

Attachment A

NOTES ON SECTIONS

Details of the Legislation (Exemptions and Other Matters) Amendment (Autonomous Sanctions) Regulations 2022

Section 1 – Name

This section provides that the title of the Regulations is the Legislation (Exemptions and Other Matters) Amendment (Autonomous Sanctions) Regulations 2022 (Amendment Regulations).

Section 2 – Commencement

This section provides for the Amendment Regulations to commence immediately after their registration.

Section 3 – Authority

This section provides that the Amendment Regulations are made under the Legislation Act 2003.

Section 4 – Schedules

This section provides that each instrument that is specified in a Schedule to the Amendment Regulations is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms.

Schedule 1 – Amendments

Legislation (Exemptions and Other Matters) Regulation 2015

Item [1] – Section 12 (after table item 10A)

 

For the purposes of paragraph 54(2)(b) of the Legislation Act, section 12 of the Principal Regulation provides that instruments contained in the table to that section are not subject to sunsetting.

 

Item 1 of Schedule 1 to the proposed Regulations would insert a new sunsetting exemption (item 10B) in section 12 of the Principal Regulations. New item 10B would provide an exemption from sunsetting for instruments made under regulations 6, 6A, 7, subregulation 8(1) and regulation 9 of the Autonomous Sanctions Regulations 2011.

 

The exemption is appropriate as the instruments are subject to a more stringent statutory review process than is required under the sunsetting regime set out in the Legislation Act.

 

Overview

The Legislation (Exemptions and Other Matters) Amendment (Autonomous Sanctions) Regulations 2022 were introduced to address the need for certain legislative instruments related to autonomous sanctions to be exempt from the sunsetting provisions of the Legislation Act 2003. Enacted by the Parliament of Australia, these regulations were designed to ensure that the legislative instruments made under the Autonomous Sanctions Regulations 2011 are not automatically repealed after a set period unless specifically reviewed and continued. This amendment responds to the requirement for continuous assessment of sanctions measures, which are reviewed every three years by the Minister, thus aligning with the policy objective of maintaining effective and up-to-date sanctions regimes without unnecessary legislative burdens. The Amendment Regulations were made under section 62 of the Legislation Act and seek to modify the Principal Regulation by exempting certain instruments from the sunsetting regime, thereby ensuring their continued operation beyond the automatic repeal date. This exemption is based on the established criteria that these instruments undergo a more rigorous review process than what is stipulated under the Legislation Act, thereby justifying their exemption. The policy objective of these regulations is to streamline the continuous review process for autonomous sanctions without the need for frequent legislative interventions, ensuring that the sanctions measures remain effective and responsive to changing circumstances.

Scope and Application

The Legislation (Exemptions and Other Matters) Amendment (Autonomous Sanctions) Regulations 2022 applies to legislative instruments made under specific regulations of the Autonomous Sanctions Regulations 2011. These instruments are designed to implement autonomous sanctions measures, including targeted financial sanctions and travel bans on individuals and entities involved in activities such as the proliferation of weapons of mass destruction, cyber incidents, acts of corruption, and serious human rights abuses. The Amendment Regulations aim to exempt these instruments from the sunsetting provisions of the Legislation Act 2003, ensuring they do not automatically expire after ten years. This exemption is necessary as these instruments are subject to a more rigorous review process every three years, aligning with the stringent statutory review mechanisms set out in the Autonomous Sanctions Regulations. The exemption does not alter the content of the laws but ensures the continued operation of these sanctions measures without additional bureaucratic reviews mandated by the sunsetting regime. The Amendment Regulations apply to the Commonwealth of Australia and are designed to maintain the efficacy of the autonomous sanctions measures stipulated in the Autonomous Sanctions Regulations 2011. These measures are intended to facilitate Australia's international relations by imposing sanctions on individuals and entities involved in activities detrimental to national and global security. The exemption from sunsetting ensures that the instruments remain in force unless specifically reviewed and renewed every three years, preserving the statutory review process. No specific exclusions or thresholds are detailed within the Amendment Regulations, but they are crafted to align with the existing legislative framework and human rights standards, ensuring compatibility with the international instruments listed under the Human Rights (Parliamentary Scrutiny) Act 2011. The Regulations commence immediately after registration and are available on the Federal Register of Legislation.

Key Provisions

The Legislation (Exemptions and Other Matters) Amendment (Autonomous Sanctions) Regulations 2022 (Amendment Regulations) are designed to amend the Legislation (Exemptions and Other Matters) Regulation 2015, establishing exemptions from sunsetting for specific legislative instruments. Section 62 of the Legislation Act 2003 allows the Governor-General to make regulations necessary to carry out or give effect to the Act, including prescribing matters required or permitted by the Act. The Amendment Regulations specifically address the sunsetting of instruments under the Autonomous Sanctions Regulations 2011, which facilitate Australia’s autonomous sanctions measures against certain countries. The Amendment Regulations exempt from sunsetting legislative instruments made under regulations 6, 6A, 7, subregulation 8(1) and regulation 9 of the Autonomous Sanctions Regulations 2011. These instruments designate individuals or entities subject to targeted financial sanctions and travel bans due to their involvement in activities such as proliferation of weapons of mass destruction, serious human rights abuses, or cyber incidents. The exemption from sunsetting is justified because these instruments undergo a more stringent statutory review process every three years, ensuring their ongoing relevance and necessity. This process is more rigorous than the sunsetting review required by the Legislation Act. The Amendment Regulations impose obligations on the relevant parties to ensure that the legislative instruments remain effective and aligned with current international and national security interests. The Minister for Foreign Affairs, in consultation with relevant departments and agencies, must conduct regular reviews of these sanctions to determine their continued necessity. These reviews are to be conducted every three years, and any continuation of these sanctions must be justified and formally documented through new legislative instruments. Breaching the requirements of the Amendment Regulations can lead to civil and criminal consequences. While specific offences and penalties are not outlined in the Amendment Regulations themselves, the underlying Autonomous Sanctions Regulations 2011 impose significant penalties for non-compliance. For example, failing to comply with the sanctions can result in fines and imprisonment. Additionally, any entity or individual found to be in breach of these sanctions may face further regulatory action or legal proceedings under the relevant Acts and Regulations. The maximum penalties for such breaches are substantial, reflecting the seriousness of circumventing autonomous sanctions measures.

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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.