Legislative Instruments (Deferral of Sunsetting—Legislative Instruments Regulations) Certificate 2015
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 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
Before this certificate was issued, its expected impact was assessed using the Preliminary Assessment tool approved by the Office of Best Practice Regulation (OBPR). OBPR considered that the proposal would not impact on business and community organisations. Therefore, a RIS or an agency ‘assessment of the performance’ of the proposal was not required.
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. The Attorney-General has portfolio responsibility for the LIA. The Attorney-General’s Department is consulting all Commonwealth Departments in developing new Regulations. 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 under the LIA 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 6 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).
More information
The detail of the certificate is provided in Attachment A.
A copy of the instrument which is the subject of this certificate, and which will now sunset at a later day as specified in this certificate, is available on the whole‑of‑government ComLaw websitehttp://www.comlaw.gov.au.
Further information about an instrument may be requested from the Attorney-General’s Department.
ATTACHMENT A
NOTES ON THE CERTIFICATE
Part 1 - Preliminary
Section 1 Name of certificate
This section provides for the certificate to be named as the Legislative Instruments (Deferral of Sunsetting—Legislative Instruments Regulations) 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.
Part 2 – Deferral of sunsetting of legislative instruments
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 relevant instruments would (apart from the operation of Part 6 of the Act) be likely to cease to be in force within 12 months after the sunsetting day, as required by subparagraph 51(1)(b)(i) of the Act.
Section 6 Deferral of sunsetting of legislative instruments
This section provides that the Legislative Instruments Regulations 2004, for which the sunsetting day is 1 April 2015, are taken to cease to be in force under section 51 of the Act on 1 April 2016.
Overview
The Legislative Instruments (Deferral of Sunsetting—Legislative Instruments Regulations) Certificate 2015 was introduced to address the need for ensuring that legislative instruments remain effective and relevant by managing their expiration dates. Enacted by the Attorney-General under paragraph 51(1)(c) of the Legislative Instruments Act 2003, the certificate allows for the deferment of the sunsetting of certain legislative instruments, thereby extending their operational period by either six or twelve months. This measure aims to reduce the administrative burden associated with the frequent renewal of legislative instruments that are still deemed fit for purpose, thus streamlining legislative processes and maintaining continuity in legal frameworks. The policy objective is to provide flexibility in the management of legislative instruments while ensuring that they remain current and effective.
Scope and Application
The Legislative Instruments (Deferral of Sunsetting—Legislative Instruments Regulations) Certificate 2015 is an instrument under the Legislative Instruments Act 2003, which allows the Attorney-General to defer the sunsetting of certain legislative instruments for a period of six or twelve months. The certificate applies to the Legislative Instruments Regulations 2004, which would have otherwise ceased to be in force on 1 April 2015. By virtue of this certificate, these regulations are now set to sunset on 1 April 2016 instead. The deferral is made under the authority provided in paragraph 51(1)(c) of the Legislative Instruments Act 2003, and it exempts the certificate from disallowance provisions as stipulated in the Act. This measure is intended to alleviate the administrative burden of remaking instruments that are still fit for purpose, allowing them to continue in effect for a limited additional period. The certificate itself is subject to certain statutory preconditions, including the requirement for the responsible rule maker to apply to the Attorney-General in writing and for the Attorney-General to be satisfied that the statutory conditions are met. The certificate includes a statement of reasons, confirming that the relevant instruments would likely cease to be in force within 12 months after the original sunsetting date.
Key Provisions
The main operative sections of the Legislative Instruments (Deferral of Sunsetting—Legislative Instruments Regulations) Certificate 2015 (the Certificate) are found in Part 2, particularly section 5 and section 6. Section 5 provides a statement of reasons for the issue of the Certificate, which includes the Attorney-General's satisfaction that the relevant legislative instruments would likely cease to be in force within 12 months after the scheduled sunsetting day (section 51(1)(b)(i) of the Legislative Instruments Act 2003 (LIA)). Section 6 specifies that the Legislative Instruments Regulations 2004, originally set to sunset on 1 April 2015, will now cease to be in force on 1 April 2016 (section 51 of the LIA). The Certificate allows for a deferral of the sunsetting day for a period of either six or twelve months, as outlined in paragraph 51(1)(c) of the LIA.
The Certificate imposes several obligations and requirements on the parties and entities it governs. The responsible rule maker must apply to the Attorney-General in writing to defer the sunsetting of a legislative instrument. The Attorney-General is required to be satisfied that the statutory conditions under section 51 of the LIA are met. Additionally, the Attorney-General must issue a certificate that includes a statement of reasons, and this certificate must be registered (section 51(3) of the LIA). The Certificate is also exempt from disallowance (section 44(2), item 43 of the LIA).
The Legislative Instruments Act 2003 includes provisions for offences, penalties, and consequences for breaches. However, the Certificate itself does not detail specific offences or penalties. The LIA does outline general provisions for the registration and disallowance of legislative instruments, which may have implications for non-compliance. For example, section 44(2) of the LIA states that certain instruments, including this Certificate, are exempt from disallowance. It is important to note that while the Certificate itself does not specify penalties for breaches, any breach of the legislative instruments it governs may incur penalties as outlined in the respective instruments or other relevant legislation.
In summary, the Legislative Instruments (Deferral of Sunsetting—Legislative Instruments Regulations) Certificate 2015 provides for the deferral of the sunsetting day of certain legislative instruments for up to 12 months. The Certificate imposes obligations on the responsible rule maker and the Attorney-General to ensure compliance with the statutory conditions and to issue a registered certificate. While the Certificate itself does not detail specific penalties, any breach of the legislative instruments it governs may result in penalties as outlined in the respective instruments or other relevant legislation.