Legislation (Radiocommunications Instruments) Sunset-altering Declaration 2018
EXPLANATORY STATEMENT
Issued by the Attorney‑General in compliance with section 15G of the Legislation Act 2003
INTRODUCTION
This declaration was made under subsection 51A(1) of the Legislation Act 2003 and is a legislative instrument for the purposes of the Legislation Act. The declaration is subject to the disallowance provisions of the Legislation Act.
OUTLINE
The purpose of Part 4 of Chapter 3 of the Legislation Act, which provides for the sunsetting of legislative instruments, is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.
Section 51A enables the Attorney-General to align the sunsetting dates of two or more instruments by declaration. The instruments will then all cease to be in force on the day specified in the declaration instead of the 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 purpose of such alignment is to facilitate more efficient and effective review processes by enabling a single thematic review into the fitness-for-purpose of all instruments relevant to a particular industry, enabling Act or theme.
This reduces the administrative burden as well as legislative inconsistencies that can arise from reviewing and remaking related legislation independently at different times.
PROCESS BEFORE CERTIFICATE 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.
Statement of compatibility with human rights obligations
Before this declaration was made, its impact on human rights was assessed using tools and guidance published by the Attorney‑General’s Department. It is fully compatible with human rights as defined in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Consultation before making
Before this declaration was issued, the Attorney‑General considered the general obligation to consult imposed by section 17 of the Legislation Act. In preparing the application for this declaration, the relevant line area of the Department of Communications and the Arts (DoCA) and the Australian Communications and Media Authority (the ACMA) consulted with the Attorney‑General’s Department. The Regulatory Reform Division in the Department of the Prime Minister and Cabinet was also provided with a copy of the application. The Attorney-General was satisfied that this consultation met the section 17 criteria of having been appropriate and reasonably practicable to be undertaken.
Statutory preconditions relevant to this declaration
If the Attorney-General is satisfied on written application from the rule-maker that the statutory conditions in section 51A 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:
all the instruments to be reviewed would (in the absence of a declaration under section 51A) be subject to sunsetting
the instruments are or will be the subject of a single review, and
the making of the declaration will facilitate the undertaking of the review and the implementation of its findings.
In terms of process, the Legislation Act requires:
the responsible rule maker to apply to the Attorney-General
the Attorney-General to be satisfied of the statutory conditions, and
the Attorney-General to make a declaration, which is a legislative instrument and subject to disallowance.
The declaration aligns the sunsetting dates of 21 legislative instruments that were previously scheduled to sunset between 1 April 2018 and 1 October 2022. The rule maker for three of the instruments is the Minister for Communications, Senator the Hon Mitch Fifield, while the rule-maker for the remaining 18 is the ACMA. The Minister for Communications wrote to the Attorney‑General seeking the alignment of the three for which he is responsible, while Ms Nerida O’Loughlin, Chair of the ACMA, wrote on that agency’s behalf.
On consideration of these applications, the Attorney‑General was satisfied that the criteria in section 51A(1)(a) and (b) were met, and made the declaration.
The 21 instruments aligned by the declaration support the operation of key mechanisms under the Radiocommunications Act 1992 and the Radiocommunications Taxes Collection Act 1983 relating to spectrum management processes. DoCA and the ACMA are consulting on a Radiocommunications Bill Package. It is anticipated that the Package will include a re-write of the Radiocommunications Act and the Radiocommunications Taxes Collection Act, and will significantly update the spectrum management framework. If the proposed Bills become law, the instruments relevant to spectrum management processes will need to be replaced by new instruments reflecting the updated legislative framework. The opportunity to conduct a single, comprehensive review of these 21 instruments will provide DoCA and the ACMA with opportunities to efficiently reduce red tape and deliver clearer legislation.
The aligned sunsetting date of 1 April 2023 will facilitate the undertaking of this review and the implementation of its findings by allowing sufficient time for:
- the recommendations of the review to be fully considered
- the instruments to be amended or remade as necessary, and
- any required changes to administrative processes to be implemented by stakeholders.
If the proposed Bills are enacted, they will make substantial changes to the licensing, pricing, technical standards, compliance and enforcement frameworks. To accommodate the scale of these changes, there would be a period of up to 14 months between Royal Assent and commencement. Due to the complexity of moving many licensees (that hold around 160,000 licences) across to the new system, transition will take five years. This timeframe will also allow DoCA and the ACMA additional time to consult major stakeholders, including industry representative bodies and government departments and agencies.
In implementing the Radiocommunications Bill Package, DoCA and the ACMA will consult major stakeholders including industry representative bodies and government departments and agencies. DoCA will also consult the Office of Best Practice Regulation on the regulatory impact of the review’s proposals.
More information
Further details of this declaration are set out in Attachment A.
A copy of each instrument which is the subject of this declaration, and which will now sunset on 1 April 2023, is available on the Federal Register of Legislationhttp://www.comlaw.gov.au.
Enquiries about the operation of this declaration may be directed to the Attorney‑General’s Department. Further information about the instruments to which this declaration applies may be requested from DoCA or the ACMA.
ATTACHMENT A
NOTES ON THE DECLARATION
Section 1 Name
This section provides for the declaration to be named the Legislation (Radiocommunications Instruments) Sunset-altering Declaration 2018. 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 radiocommunications instruments to facilitate review etc.
This section lists the 21 instruments that are repealed on 1 April 2023 by the operation of section 51A of the Legislation Act.
This is the aligned sunsetting day for those instruments, which would otherwise have sunset between 1 April 2018 and 1 October 2022.
Section 5 Repeal of this instrument
This section provides that the declaration is repealed on 2 April 2023, which is the day after the aligned sunsetting day. This ensures that the declaration remains in force only as long as it is needed.