Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003
Sunsetting Review Committee | September 2017
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Contents
About the Report...... i
About the Committee...... ii
1.Executive Summary
1.1Purpose of the Review
1.2Consultation
1.3Recommendations
2.Introduction
3.Operation of the sunsetting framework
3.1Purpose of sunsetting
3.2Staging of sunsetting dates
3.3Reducing the sunsetting period
3.4Review of the sunsetting provisions
4.Agency processes and responsibilities
4.1Agency processes for managing sunsetting legislative instruments
4.2Administrative burden associated with sunsetting
4.3The need for guidance
5.Deferral of sunsetting
5.1Streamlining the process
5.2The Attorney-General’s discretion to defer sunsetting
5.3Replacing ‘cease to be in force’ with ‘repealed’
5.4Requirement to table certificates of deferral
6.Alignment of sunsetting to facilitate thematic review
6.1The operation of section 51A of the Legislation Act
6.2Policy guidance on types of thematic review
7.Tabling of sunsetting lists
8.Parliamentary roll over
8.1Purpose and role of the parliamentary roll over mechanism
8.2Time limit on moving a resolution
9.Exemptions from sunsetting
9.1General observations
9.2Policy criteria justifying the granting of an exemption
9.3Application of sunsetting to court rules
9.4Refining the class exemptions
10.Breadth of the sunsetting regime
10.1Primary legislation
10.2Notifiable instruments
11.The Federal Register of Legislation
12.Division 1 of Part 3 of Chapter 3 (Automatic repeal)
12.1Timing of automatic repeal
12.2Meaning of ‘sitting day’
Appendix A: Terms of Reference
Appendix B: Submissions received by the Committee
Appendix C1: Sunsetting provisions of the Legislation Act
Appendix C2: Sunsetting provisions of the LEOMR
Appendix D: Automatic repeal provisions of the Legislation Act
Appendix E: Statistics on the repeal and sunsetting of legislative instruments
About the Report
Questions or comments on this report should be sent to:
Sunsetting Review Secretariat
c/- Attorney-General’s Department
3-5 National Circuit
Barton ACT 2600
Abbreviations used in the Report
For the purposes of this report:
2008 Reviewmeans the 2008 Review of the Legislative Instruments Act 2003 (March 2009)
2016 Exemptions Regulation means the Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016
Acts Interpretation Act means the Acts Interpretation Act 1901
AGD means the Attorney-General’s Department
AGD Guide means the Guide to Managing Sunsetting of Legislative Instruments
agency means the government department or body responsible for advising a rule-maker on a particular area of law under the current Administrative Arrangements Order
Committee means the body appointed by the Attorney-General under subsection 60(1) of the Legislation Act
FRL means the Federal Register of Legislation
Legislation Act means the Legislation Act 2003
LEOMR means the Legislation (Exemptions and Other Matters) Regulation 2015
OPC means the Office of Parliamentary Counsel
Review means this review of the operation of Part 4 of Chapter 3 (sunsetting of legislative instruments) of the Legislation Act, as required by section 60 of the Legislation Act
rule-maker means any person who is authorised to make a certain type of instrument or, if the rulemaker is the Governor-General, the responsible minister (see subsection 6(1) of the Legislation Act)
SSCRO means the Senate Standing Committee on Regulations and Ordinances
sunset means to be repealed in accordance with Part 4 of Chapter 3 of the Legislation Act
i
About the Committee
Mr Iain Anderson (Chair)
Mr Iain Anderson is the Chief Operating Officer and Deputy Secretary of the Civil Justice and Corporate Group in AGD. Mr Anderson is responsible for civil justice policy and programmes, including administrative law, legislative frameworks and administration of the Legislation Act, and for the corporate affairs of the department.
Since joining AGD in 1990, Mr Anderson has worked in many areas of the department, including the Australian Government Solicitor, and has led divisions responsible for criminal justice; strategic policy; native title; territories; legal services and classification. He has also led the in-house legal area of the Australian Taxation Office.
Mr Anderson has degrees in Law and Economics from the University of Sydney.
Mr Peter Quiggin PSM
Mr Peter Quiggin is the First Parliamentary Counsel of OPC, which is responsible for drafting all principal legislation, all regulations and a range of legislative instruments for the Australian Government, including taxation legislation. OPC is also responsible for the publication of Commonwealth legislation through the FRL.
Mr Quiggin’s initial seven-year appointment as First Parliamentary Counsel started on 13 May 2004. He has since been reappointed for a further seven years, commencing on 14 May 2011. He has been a drafter with OPC for over 25 years and has drafted legislation covering a wide range of topics including taxation, native title and immigration. Mr Quiggin was awarded a Public Service Medal in the Australia Day 2008 Honours.
Mr Quiggin is an ex officio member of the Board of Taxation.Prior to working at OPC, Mr Quiggin worked for a number of years in the Australian Taxation Office and the Administrative Appeals Tribunal.
Ms Alison Larkins
Ms Alison Larkins is the Chief Operating Officer and Deputy Secretary in the Department of Health. Ms Larkins is responsible for the department’s corporate and enabling areas and the Department’s state networks. Prior to joining the Department of Health, Ms Larkins worked in the Department of the Prime Minister and Cabinet (PM&C) as acting Deputy Secretary, Social Policy. While in PM&C she was responsible for the Social Policy Division, the National Ice Taskforce Secretariat and the Reform of the Federation Taskforce.
Ms Larkins previously led the Refugee, Humanitarian and International Policy; Compliance and Case Management; and People and Governance Divisions in the Department of Immigration and Border Protection.
Ms Larkins was also previously appointed as acting Commonwealth Ombudsman and Deputy Commonwealth Ombudsman.
ii
1.Executive Summary
1.1Purpose of the Review
The purpose of the Review is to ensure that the requirement for rule-makers to periodically review and remake legislative instruments is operating in an efficient and effective manner to maintain an accurate and up-to-date register of legislative instruments.
The Review was conducted12 years after the provisions containing the sunsetting provisions commenced (as opposed to three years for the remainder of the Legislation Act). This timing was in recognition that there is a 10-year sunsetting period and therefore the operation of the sunsetting provisions could not have been assessed after a shorter period.
The Committee’s Terms of Reference are at Appendix A.
1.2Consultation
In preparing this Review, the Committee has consulted with and considered the views of a broad range of stakeholders. A Consultation Paper for public comment was released on 30 May 2017.
At the time of release, the Committee directly notified and invited Commonwealth agencies and a number of major peak bodies to provide submissions. The Consultation Paper was made publicly available at < The Committee received 25 submissions, which are listed in Appendix B. They were primarily from Commonwealth government agencies.
1.3Recommendations
Operation of the sunsetting framework
1.The Committee recommends that AGD continue to promote the use of section 51A of the Legislation Act as a method of reducing the potential workload associated with multiple sunsetting legislative instruments.
2.The Committee recommends that the 10-year sunsetting period be maintained.
3.The Committee recommends that the Legislation Act be amended to require thata second statutory review of the sunsetting provisions be undertaken by 1 October 2027.
Agency processes and responsibilities
4.The Committee recommends that agencies implement robust internal processes for managing the sunsetting of legislative instruments, including taking early action to review and, where necessary, begin the process of remaking the legislative instruments.
5.The Committee recommends that AGD and OPC continue to take, and further pursue, a leadership role in promoting awareness and understanding of sunsetting processes across the Commonwealth through the provision ofmore training opportunities.
6.The Committee recommends that agencies ensure due consideration is given to the requirements of sections 15J and 17 of the Legislation Act.
7.The Committee recommends that AGD, OPC and PM&C review the existing policy guidance material on managing the sunsetting of legislative instruments and continue to work together to ensure that the guidance remains consistent and up to date.
8.The Committee recommends that consideration be given to developing a best practice guide for undertaking fit-for-purpose and thematic reviews of legislative instruments.
Deferral of sunsetting
9.The Committee recommends that AGD give consideration to including additional templates in the AGD Guideto assist agencies to navigate the deferral process.
10.The Committee recommends that section 51 of the Legislation Act be amended to allow the Attorney-General to grant deferrals of sunsetting for up to 24 months.
11.The Committee recommends that section 51 of the Legislation Act should provide that:
- certificates granting deferrals of up to 12 months continue to be non-disallowable legislative instruments, and
- certificates granting deferrals of between 12 and 24 months are disallowable legislative instruments.
12.The Committee recommends that consideration be given to refining the AGD Guide to clarify the circumstances in which a certificate of deferral may be sought.
13.The Committee recommends that section 51 of the Legislation Act be amended to allow the AttorneyGeneral to issue a certificate of deferral for a legislative instrument on the basis that he or she has given policy approval to exempt that instrument from sunsetting.
14.The Committee recommends that the Attorney-General’s power to grant deferrals of sunsetting should remain non-delegable.
15.The Committee recommends that paragraph 51(1)(c) of the Legislation Act should be amended to replace ‘taken to cease to be in force’ with ‘repealed’.
16.The Committee recommends that paragraph 51(2)(b) of the Legislation Act be repealed.
Alignment of sunsetting to facilitate thematic review
17.The Committee recommends that declarations made under section 51A of the Legislation Act should continue to be disallowable.
18.The Committee recommends amending both sections 51 and 51A of the Legislation Act to require that the explanatory statement for the affected instruments must include a statement of reasons for the making of those instruments.
19.The Committee recommends amendingsubsection 51A(b) of the Legislation Act to require that the AttorneyGeneral be satisfied that the making of the declaration will facilitate the undertaking of the review or the implementation of its findings.
20.The Committee recommends that section 51A of the Legislation Act should not be expanded to apply to groups of legislative instruments that already have the same scheduled sunsetting date.
21.The Committee recommends that consideration be given to providing further guidance in the AGD Guide on section 51A of the Legislation Act, including on eligibility criteria, application processes, identifying legislative instruments that are suitable for thematic review, and undertaking a thematic review.
Tabling of sunsetting lists
22.The Committee recommends that OPC consider mechanisms for generating sunsetting alerts through the FRL in addition to the tabling of sunsetting lists.
23.The Committee recommends that departments take steps to ensure sunsetting information is disseminated to all portfolio agencies.
Parliamentary roll over
24.The Committee considers that section 53 of the Legislation Act is still appropriate and recommends that it be retained.
25.The Committee recommends amendingparagraph 53(1)(b) of the Legislation Act to allow Parliament to pass a resolution to roll over a legislative instrument at any time after that instrument is mentioned in a sunsetting list or a certificate of deferral.
Exemptions from sunsetting
26.The Committee recommends that the current exemptions from sunsetting and the policy criteria for granting exemptions from sunsetting be periodically reviewed by AGD every fiveyears.
27.The Committee recommends that, where possible and appropriate, agencies should seek exemptions from sunsetting a number of years before the sunsetting date of the affected legislative instrument.
28.The Committee draws the attention of all responsible agencies to the expectations of the SSCRO that all proposed exemptions from sunsetting should be accompanied by robust and thorough justification.
29.The Committee recommends that all exemptions from sunsetting (other than those set out in section54 of the Legislation Act)should be prescribed in the LEOMR.
30.The Committee recommends that the policy criteria justifying the granting of exemptions from sunsetting should be expanded to include circumstances whereall the following criteria apply:
- the instrument is sufficiently large and complex that the administrative burden associated with remaking the instrument would outweigh any regulatory benefit
- the instrument is subject to regular review,and
- the instrument is subject to regular amendment.
31.The Committee recommends that that the policy criteria justifying the granting of exemptions from sunsetting should be expanded to explicitly include circumstances where a legislative instrument governs a scheme that is applicable to a permanently closed class of persons.
32.The Committee recommends that the policy criteria justifying the granting of exemptions from sunsetting should remain in policy, rather than legislation.
33.The Committee recommends that AGD should review the guidance contained in the AGD Guide on the policy criteria justifying the granting of exemptions from sunsetting.
34.The Committee recommends that rules of court should not be subject to sunsetting.
35.The Committee recommends that rules of court should be subject to the registration and publication requirements of the Legislation Act.
36.The Committee recommends amendingparagraph 54(1)(a) (and paragraph 44(1)(a)) of the Legislation Act to make reference to intergovernmental bodies and schemes involving the Commonwealth and one or more States or Territories.
37.The Committee recommends that the exemption prescribed by subsection 54(1) remain in the Legislation Act.
38.The Committee recommends that agencies continue to treat specific exemptions as the preferred option where it is not clear that a class exemption applies.
Breadth of the sunsetting regime
39.The Committee recommends that the sunsetting framework should not be extended to primary legislation.
40.The Committee recommends that notifiable instruments should not be subject to sunsetting and that further consideration be given to the management of notifiable instruments as part of the next Sunsetting Review.
41.The Committee recommends that notifiable instruments continue to be subject to the same automatic and bulk repeal provisions under the Legislation Act as legislative instruments.
42.The Committee recommends no change to the operation of the FRL as it relates to notifiable instruments.
The Federal Register of Legislation
43.The Committee recommends that agencies continue to liaise with OPC on suggestions for improvements to the FRL.
Division 1 of Part 3 of Chapter 3 (Automatic repeal)
44.The Committee recommends amendingDivision 1 of Part 3 of Chapter 3 of the Legislation Act to provide that a disallowable legislative instrument is automatically repealed at either the end of the disallowance period for that instrument, when the instrument has fully taken effect, or when the capacity for any further provisions to commence has been exhausted;whichever occurs later.
45.The Committee recommends that the Legislation Act and/or the Acts Interpretation Act be amended to define the term ‘sitting day’, and that the form of any amendment should be discussed with the Senate and the House of Representatives.
2.Introduction
Sunsetting provisions in legislation provide that a law is repealed after a specific date unless further legislative action is taken to extend that law. The legislation implementing the Commonwealth sunsetting mechanism was developed over a number of years, in close consultation with Commonwealth agencies. The legislation was informed by the Administrative Review Council’s (ARC) 1992 report Rulemaking by Commonwealth Agencies, which also laid the foundationfor many of the principles incorporated into the Legislation Act.[1] The scheme was initially put before the Parliament as part of the Legislative Instruments Bill 1996 [No.2],but was subsequently revised and simplified in the Legislative Instruments Bill 2003, which ultimately received Royal Assent on 17 December 2003.
Sunsetting is an important mechanism for the Australian Government to implement policies to reduce red tape, deliver clearer laws and align existing legislation with current government policy.The sunsetting framework commenced in 2003. Since then 2,024 legislative instruments have appeared on sunsetting lists tabled by the Attorney-General under section 52 of the Legislation Act. Approximately 60% (1,215) of those listed instrumentswereeither allowed to sunset (413 instruments), were actively repealed (340 instruments), or have been replaced (462 instruments).[2]The sunsetting framework has played a key role in keeping the statute book up to date.
As the use of a sunsetting mechanism to manage the currency of delegated legislation was a relatively novel and untested innovation, the Legislation Actincluded a requirement to review the operation of the mechanism within a few years of it having a substantive effect. The Legislation Act statesthat, unless otherwise provided by another Act, a legislative instrument registered on the FRL on or after 1 January 2005 will sunset on the 1April or 1October falling on or after the tenthanniversary of that instrument’s registration. As such, the sunsetting regime did not come into full operation until 2015, when legislative instruments first began to sunset.
This Review was conducted to meet the requirement in section 60 of the Legislation Act, which provides that a body appointed by the Attorney-General must report on the operation of the sunsetting framework set out in the Legislation Act by 1 October 2017. The Committee considered all aspects of the operation of the sunsetting framework set out in the Legislation Act, including:
- the extent to which the purpose of the sunsetting framework has been realised
- factors that have limited the achievement of this purpose
- the extent to which this purpose is still appropriate, and
- how performance against this purpose might be improved.
The Committee also assessed whether or not: