Explanatory Memorandum(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)
General outline and financial impact
1. This Bill makes amendments to various Acts, including the Legislation Act 2003 ('Legislation Act') and the Acts Interpretation Act 1901 ('Acts Interpretation Act'), to implement those recommendations of the Report on the Operation of the Sunsetting Provisions in the Legislation Act 2003 ('Sunsetting Review Report') that require legislative action.
2. This Bill also makes other minor and technical amendments to the Legislation Act and the Acts Interpretation Act to clarify their operation and resolve inconsistencies between provisions.
3. The purpose of the sunsetting framework, as provided under section 49 of the Legislation Act, is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed. Its operation ensures that legislative instruments (subject to some exceptions) are reviewed at least every 10 years to determine whether they are fit-for-purpose and should be remade, or are redundant and can be repealed. Sunsetting is an important mechanism for reducing red tape, delivering clearer laws and aligning existing legislation with current government policy.
4. The Sunsetting Review Report was the outcome of a review undertaken in accordance with section 60 of the Legislation Act, which requires the Attorney-General to appoint persons to a body to review the operation of the sunsetting framework set out in Part 4 of Chapter 3 of that Act. In March 2017, the then Attorney-General appointed three senior Commonwealth officials to a Committee to conduct that review ('Committee').
5. The Committee found that the sunsetting framework is, in general, fulfilling its stated purpose, and recommended that the framework should not be extended to primary legislation and that the 10-year sunsetting period should be maintained. The Committee made 45 recommendations, which are set out in the Sunsetting Review Report, aimed at improving and streamlining the operation of the sunsetting framework and related provisions of the Legislation Act. The Sunsetting Review Report was tabled in the House of Representatives on 23 October 2017 and in the Senate on 13 November 2017.
6. In preparing the Sunsetting Review Report, the Committee consulted with and considered the views of a broad range of stakeholders. A Consultation Paper was made publicly available and the Committee invited both government and non-government stakeholders to provide submissions. In total, the Committee received 25 submissions to the Consultation Paper.
7. A number of stakeholders were also consulted in the development of this Bill. The Office of Parliamentary Counsel was consulted on all aspects of this Bill. The Department of the Prime Minister and Cabinet and the Clerks of the House of Representatives and of the Senate were consulted on the definition of 'sitting day' for the purposes of the disallowance provisions of the Legislation Act and provisions relating to parliamentary scrutiny including the First Parliamentary Counsel's rectification power. The Criminal Law Section and the Human Rights Unit of the Attorney-General's Department were also consulted on the Statement of Compatibility with Human Rights.
8. Schedule 1 makes amendments to various Acts to, primarily, implement the recommendations of the Sunsetting Review Report that can only be achieved by legislative change. These amendments:
- broaden the scope of the Attorney-General's discretion to issue certificates of deferral of sunsetting and declarations of alignment of sunsetting, and provide for greater parliamentary scrutiny of the exercise of these discretions
- remove the time restriction on Parliament's power to roll over the sunsetting date of a legislative instrument
- provide that rules of court are not subject to the sunsetting framework
- clarify that references to 'intergovernmental bodies or schemes' include those involving the Commonwealth and one or more Territories
- define the meaning of 'sitting day' as it applies to the disallowance provisions of the Legislation Act and in any other Act
- clarify the interaction between the disallowance, tabling and automatic repeal provisions of the Legislation Act, and
- makes minor amendments to a number of provisions to better reflect current drafting practice.
9. Schedule 2 makes minor and technical amendments to the Legislation Act and Acts Interpretation Act to clarify the operation of those Acts, resolve inconsistencies between provisions, and simplify language. In particular, these amendments clarify:
- that a legislative or notifiable instrument can commence before the instrument is registered despite any rule or principle of common law
- that a legislative or notifiable instrument may apply, adopt or incorporate a version of another instrument or writing that may not be the version that is actually in force when the legislative or notifiable instrument commences, but was in force at some time prior to that commencement
- the limits of the First Parliamentary Counsel's power to rectify an error on the Federal Register of Legislation and the application of the parliamentary scrutiny mechanisms to instruments that have been rectified under this power, and
- that, where an Act refers to a provision of another Act or State or Territory law, and that provision is repealed and re-enacted, a reference to the repealed provision extends to the re-enacted provision even if it is differently numbered.
10. This Bill does not have a financial impact.