Legislation (Explosives Instruments) Sunset-altering Declaration 2019

EXPLANATORY STATEMENT

Issued by the Attorney‑General in compliance with

section 15G of the Legislation Act 2003

INTRODUCTION

The Legislation (Explosives Instruments) Sunset-altering Declaration 2019 (the Explosives Instruments Declaration) is made under subsection 51A(1) 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 Explosives Instruments Declaration is subject to the disallowance provisions 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Subsection 50(1) of the Legislation Act provides that a legislative instrument is automatically repealed on the 1 April or 1 October immediately on or following the tenth anniversary of its registration, unless it was registered on 1 January 2005.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 subsection 51A(1) of the Legislation Act, the Attorney-General can issue a declaration aligning the sunsetting days of two or more instruments to 1 April or 1 October of a year that is up to five years later than the earliest sunsetting day. The instruments will then be repealed on the day specified in the declaration instead of the previously scheduled sunsetting day of each instrument. This allows instruments to continue to be in force for a further but limited period of time when they would otherwise sunset, or to sunset earlier than the originally scheduled sunsetting day.

The objective of issuing a sunset altering-declaration is to facilitate either: the undertaking of a single review into the fitness-for-purpose of two or more thematically related legislative instruments; or the implementation of such a review’s findings. This reduces the administrative burden as well as the possibility of legislative inconsistencies arising from reviewing and remaking related legislation at different times.

The Explosives Instruments Declaration aligns the sunsetting dates of the following two instruments (together, the Explosives Instruments) to be 1 October 2024:

• the Explosives Transport Regulations 2002, and
• the Explosives Areas Regulations 2003.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The Legislation (Explosives Instruments) Sunset-altering Declaration 2019 (the Explosives Instruments Declaration) 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 Declaration

The Explosives Instruments Declaration is made under subsection 51A(1) of the Legislation Act. Under that subsection, the Attorney-General can align the sunsetting days of two or more legislative instruments to 1 April or 1 October of a year that is up to five years later than the earliest sunsetting day. The instruments specified in the declaration will then be repealed on the day specified in the declaration instead of the previously scheduled sunsetting day. The instruments specified in the Explosives Instruments Declaration are:

• Explosives Transport Regulations 2002, and
• Explosives Areas Regulations 2003.

The Explosives Instruments Declaration aligns the sunsetting dates of these instruments to be 1 April 2024. The objective of issuing the declaration is to facilitate the undertaking of a single thematic review into the fitness-for-purpose of the Explosives Instruments. This will reduce the administrative burden as well as the possibility of legislative inconsistencies arising from reviewing and remaking the related legislation independently at different times.

Human Rights Implications

Before issuing the Explosives Instruments Declaration, the Attorney-General was satisfied that all instruments specified in the declaration would be subject to a single thematic review. A thematic review is an effective mechanism for determining whether the instruments are fit for purpose, identifying opportunities to update, streamline and clarify the operation of the instruments and, where appropriate, reducing unnecessary regulation.

The review of aligned instruments can provide information on how the instruments operate in the existing legal environment, including the impact of the instruments on human rights and freedoms. To avoid pre-empting that review, and with the expectation that any instruments remade as a consequence of the review will face future parliamentary scrutiny, the Statement of Compatibility with Human Rights for a sunset‑altering declaration focuses on the effect of the aligning instrument, rather than the substantive effect of continuing the instruments that have been aligned.

Instruments that are remade subsequent to the proposed review 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

The Explosives Instruments Declaration is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights Act as it is expected that any replacement instruments that unduly limit human rights and freedoms will be subject to parliamentary oversight and scrutiny.

PROCESS BEFORE DECLARATION WAS MADE

Regulatory impact analysis

Sunset-altering declarations 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 ID 19486.

Consultation before making

Before the Explosives Instruments Declaration was issued, the Attorney‑General considered the general obligation to consult imposed by section 17 of the Legislation Act. Consultation involved the Minister for Defence, the Hon Christopher Pyne MP, advising the Attorney‑General of the reasons in support of issuing the declaration. The Minister for Defence is responsible for administering the Explosives Act 1961, the enabling legislation under which the Explosives Instruments are made. As such, the Minister for Defence is the relevant rule-maker for the purposes of section 6 of the Legislation Act.

The Department of Defence also consulted relevant areas of the Departments of Home Affairs, Jobs and Small Business, and Industry, Innovation and Science. The Department of Infrastructure, Regional Development and Cities was also provided with the opportunity to provide comment on the application. A copy of the application has been provided to the Whole of Government Deregulation Team area of the Department of Jobs and Small Business.

The Explosives Instruments Declaration 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 declaration

If the Attorney-General is satisfied on written application from the relevant rule-maker that the statutory conditions in paragraphs 51A(1)(a) and (b) of the Legislation Act are met, the sunsetting day of two or more legislative instruments can be aligned by means of a declaration made under that section. The statutory conditions are that:

a)      all the instruments to be reviewed would (in the absence of a declaration made under section 51A of the Legislation Act) be repealed by section 50 or 51 of the Legislation Act 

b)      all the instruments to be reviewed are or will be the subject of a single review, and

c)      the making of the declaration will facilitate the undertaking of the review or the implementation of its findings. 

In terms of process, the Legislation Act requires:

a)      the responsible rule-maker to apply to the Attorney-General,

b)      the Attorney-General to be satisfied of the statutory conditions, and

c)      the Attorney-General to make a declaration, which is a legislative instrument and subject to disallowance.

The Explosives Instruments Declaration aligns the sunsetting days of the Explosives Instruments, which were scheduled to sunset on 1 October 2019 and 1 April 2020, to be 1 October 2024.

The rule-maker for the Explosives Instruments is the Minister for Defence, who provided a written application to the Attorney‑General seeking an alignment of the instruments’ sunsetting days. On consideration of this application, the Attorney‑General was satisfied that the criteria in paragraphs 51A(1)(a) and (b) of the Legislation Act were met.

Statement of Reasons for issuing of the declaration

For the purposes of subsection 51A(4) of the Legislation Act, this section sets out the statement of reasons for the issue of the Legislation (Explosives Instruments) Sunset-altering Declaration 2019 (the Explosives Instruments Declaration).

The Explosives Transport Regulations 2002 and the Explosives Areas Regulations 2003 (the Explosives Instruments) form the legislative basis for the Australian Code for the Transport of Explosives by Road and Rail. That Code deals with the transport of all Commonwealth explosives by road and rail, and refers to safety measures in the vicinity of declared explosives areas.

The Explosives Instruments will be the subject of a review of the Commonwealth legislative regime for the handling and storage of Commonwealth explosives. The review will ensure that the legislative framework covering all Commonwealth explosives, including the Explosives Instruments, meets safety outcome requirements, contemporary drafting standards, and is consistent with associated safety legislation such as the Work Health and Safety Act 2011. Noting the subject matter and the broad scope of the proposed review, it is anticipated that five years will be required to undertake the review.

Aligning the sunsetting dates of the Explosives Instruments to be 1 October 2024 will provide sufficient time for the extensive consultation and drafting requirements that are likely be required to implement findings of the review. The result will be clearer and more consistent regulations for the handling, transport and storage of Commonwealth explosives. As such, the Explosives Instruments Declaration is consistent with the policy intent of the sunsetting regime – that is, that legislative instruments are kept up to date and only remain in force for so long as they are needed.

More information

Further details of the provisions of the Explosives Instruments Declaration are set out in Attachment A.

A copy of each instrument which is the subject of the Explosives Instruments Declaration, and which will now sunset on 1 October 2024, 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 Explosives Instruments Declaration, and from the Department of Defence about the instruments to which the Declaration applies.

ATTACHMENT A

NOTES ON THE DECLARATION

Section 1 Name

This section provides for the declaration to be named the Legislation (Explosives Instruments) Sunset-altering Declaration 2019. The Declaration may be cited by that name.

Section 2  Commencement

This section provides for the declaration to commence on the day after it is registered.

Section 3 Authority

This section provides that the declaration is made under subsection 51A(1) of the Legislation Act 2003.

Section 4 Repeal of insurance instruments to facilitate review etc.

This section provides that the following instruments are repealed by section 51A of the Legislation Act on 1 October 2024:

• Explosives Transport Regulations 2002, and
• Explosives Areas Regulations 2003.

This is the aligned sunsetting day for those instruments, which would otherwise have sunset on 1 October 2019 and 1 April 2020, respectively.

Section 5 Repeal of this instrument

This section provides that the declaration is repealed on 2 October 2024, which is the day after the aligned sunsetting day. This ensures that the declaration remains in force for only as long as it is needed.