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Legislative Instruments (Deferral of Sunsetting—Legal Services Directions) Certificate 2016

Legislative Instruments (Deferral of Sunsetting—Legal Services Directions) Certificate 2016

Administered by Attorney-General's Department

Legislation au F2016L00124 Not in force Legislative Instrument

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EXPLANATORY STATEMENT

Issued by the Attorney‑General
in compliance with section 26 of the Legislative Instruments Act 2003

INTRODUCTION

This Certificate was made under paragraph 51(1)(c) of the Legislative Instruments Act 2003 (the LIA) and is a legislative instrument for the purposes of the LIA. The LIA provides that a certificate issued by the Attorney-General under subsection 51(1) of the LIA is not subject to the disallowance provisions of the LIA. Accordingly, a human rights statement of compatibility is not required.

OUTLINE

The purpose of Part 6 of the LIA on 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.

Paragraph 51(1)(c) enables the Attorney-General to issue a certificate to defer the sunsetting day for an instrument for a period of 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 when they are already fit-for-purpose.

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 ID 19633.

Consultation before making

Before this Certificate was issued, the Attorney‑General considered the general obligation to consult imposed by section 17 of the LIA, and the specific circumstances where consultation may be unnecessary or inappropriate set out in section 18. Section 55ZF of the Judiciary Act 1903 empowers the Attorney-General to issue Legal Services Directions that are to apply generally to Commonwealth legal work, or that are to apply to Commonwealth legal work being performed, or to be performed, in relation to a particular matter. The Attorney-General’s Department is consulting a number of agencies and all Commonwealth Departments in developing new Directions. The Attorney-General’s Department and the Office of Parliamentary Counsel developed the certificate. 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 LIA 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 LIA requires:

- the responsible rule maker to apply to the Attorney-General in writing

- the Attorney-General to be satisfied that the instrument meets the statutory conditions, and

- the Attorney-General to make a certificate that includes a statement of reasons for the issue of the certificate—this certificate must be registered (LIA s 51(3)) but is exempt from disallowance (LIA s 44(2), item 43).

As the Directions are in the Attorney‑General’s own portfolio, there was no formal written application in this case.

More information

The detail of the Certificate is provided in Attachment A.

Copies of the instrument subject to this Certificate, which will now sunset at a later day as specified in this Certificate, are available on the whole‑of‑government ComLaw websitehttp://www.comlaw.gov.au. Further information about this instrument may also be requested from the Attorney-General’s Department.

ATTACHMENT A

NOTES ON THE CERTIFICATE

Section 1 Name of Certificate

This section provides for the Certificate to be named as the Legislative Instruments (Deferral of Sunsetting—Legal Services Directions) Certificate 2015. 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 Legislative Instruments Act 2003.

Section 4 Definitions

This section defines ‘Act’ to mean the Legislative Instruments Act 2003, for the purposes of the Certificate.

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 Act.

The statement of reasons provides that the Attorney-General is satisfied that the Legal Services Directions 2005 (the Directions) would (apart from the operation of Part 6 of the Act) be likely to cease to be in force within 12 months after the scheduled sunsetting day, as required by subparagraph 51(1)(b)(i) of the Act.

Section 6 Deferral of sunsetting of the instrument

This section provides that the Directions, for which the sunsetting day is 1 April 2016, are taken to cease to be in force under section 51 of the Legislative Instruments Act 2003 on 1 April 2017.

Section 7 Repeal

This section provides that the Certificate is repealed on 2 April 2017.

Overview

The Legislative Instruments (Deferral of Sunsetting—Legal Services Directions) Certificate 2015 was issued by the Attorney-General under the Legislative Instruments Act 2003 (LIA) to address the issue of legislative instruments sunsetting before they are replaced, causing unnecessary administrative burden. The LIA requires that legislative instruments are kept up-to-date, but in some cases, instruments may still be fit for purpose even after their scheduled sunsetting date. The Certificate enables the deferral of the sunsetting date for such instruments for a period of six or 12 months, allowing sufficient time to replace them without disruption. The Certificate was issued following consideration of the statutory conditions in section 51 of the LIA and does not significantly alter existing arrangements. The Certificate, which is exempt from disallowance, was developed by the Attorney-General’s Department and the Office of Parliamentary Counsel. It is consistent with the policy intent of the sunsetting arrangements and was made without the need for further consultation as it does not significantly alter existing arrangements. The Certificate is available on the ComLaw website and further information can be requested from the Attorney-General’s Department.

Scope and Application

The Legislative Instruments (Deferral of Sunsetting—Legal Services Directions) Certificate 2016 applies to the Legal Services Directions 2005, which govern the provision of legal services by Commonwealth agencies. This instrument is made under the authority of the Legislative Instruments Act 2003 (LIA), and its primary purpose is to defer the sunsetting of these directions by six months. The deferral allows the Directions to remain in force until 1 April 2017, rather than their original sunsetting date of 1 April 2016. The Certificate is applicable to all entities and persons subject to the Legal Services Directions within the Commonwealth jurisdiction. The Certificate does not significantly alter existing arrangements, nor does it introduce new substantive requirements; instead, it simply extends the operational period of the Directions. There are no specific exclusions or exemptions noted within the text, and the Certificate itself is subject to the conditions outlined in the LIA, which include the requirement that the Directions meet the statutory conditions for deferral as stipulated in section 51 of the Act.

Key Provisions

The Legislative Instruments (Deferral of Sunsetting—Legal Services Directions) Certificate 2016 (the Certificate) is a legislative instrument made under section 51(1)(c) of the Legislative Instruments Act 2003 (LIA). This Certificate allows for the deferral of the sunsetting of the Legal Services Directions 2005 (the Directions) for a period of 12 months. Specifically, section 6 of the Certificate specifies that the Directions, which were set to sunset on 1 April 2016, will now cease to be in force on 1 April 2017. The Certificate is named and detailed in Attachment A, and it is consistent with the policy intent of the sunsetting arrangements under the LIA. Under the LIA, the Attorney-General has the authority to defer the sunsetting of legislative instruments when certain statutory conditions are met. The obligations imposed on the parties governed by this Act include the requirement for the Attorney-General to be satisfied that the Directions meet these statutory conditions and to issue a certificate that includes a statement of reasons for the deferral. The Attorney-General’s Department and the Office of Parliamentary Counsel developed this Certificate, and it is consistent with existing arrangements, thus further consultation was deemed unnecessary. The Certificate outlines specific obligations for the Attorney-General. These include being satisfied that the Legal Services Directions are likely to cease to be in force within 12 months of the scheduled sunsetting day (section 5). The Certificate also mandates that the Directions will now cease to be in force on 1 April 2017 (section 6). Additionally, the Certificate specifies that it will be repealed on 2 April 2017 (section 7). For breaches or non-compliance with the conditions specified in the Certificate, there are potential civil or criminal consequences, though specific penalties are not detailed in the Certificate itself. Generally, under the LIA, failure to adhere to the requirements of a legislative instrument can result in legal actions or penalties as outlined in relevant legislation. However, as the Certificate is exempt from disallowance, it does not require a human rights statement of compatibility.

Area of Law: Administrative Law
Instrument: Certificate
Concepts: Commencement Provisions; Repeal & Amendment; Delegated & Subordinate Legislation

Interactions

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.

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