Report on the Operation of the Sunsetting Provisions in the

Legislation Act 2003

Sunsetting Review Committee | September 2017

© Commonwealth of Australia 2017

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ContentsAbout the Report..................................................................................................................................................................... i

About the Committee............................................................................................................................................................. ii

1. Executive Summary.........................................................................................................................................................1

1.1 Purpose of the Review............................................................................................................................................1

1.2 Consultation...........................................................................................................................................................1

1.3 Recommendations..................................................................................................................................................1

2. Introduction....................................................................................................................................................................5

3. Operation of the sunsetting framework.........................................................................................................................7

3.1 Purpose of sunsetting.............................................................................................................................................7

3.2 Staging of sunsetting dates.....................................................................................................................................7

3.3 Reducing the sunsetting period..............................................................................................................................8

3.4 Review of the sunsetting provisions.......................................................................................................................9

4. Agency processes and responsibilities..........................................................................................................................10

4.1 Agency processes for managing sunsetting legislative instruments.....................................................................10

4.2 Administrative burden associated with sunsetting...............................................................................................11

4.3 The need for guidance..........................................................................................................................................12

5. Deferral of sunsetting...................................................................................................................................................14

5.1 Streamlining the process......................................................................................................................................14

5.2 The Attorney-General’s discretion to defer sunsetting.........................................................................................15

5.3 Replacing ‘cease to be in force’ with ‘repealed’...................................................................................................17

5.4 Requirement to table certificates of deferral.......................................................................................................18

6. Alignment of sunsetting to facilitate thematic review..................................................................................................19

6.1 The operation of section 51A of the Legislation Act.............................................................................................19

6.2 Policy guidance on types of thematic review.......................................................................................................21

7. Tabling of sunsetting lists..............................................................................................................................................22

8. Parliamentary roll over.................................................................................................................................................23

8.1 Purpose and role of the parliamentary roll over mechanism...............................................................................23

8.2 Time limit on moving a resolution........................................................................................................................23

9. Exemptions from sunsetting.........................................................................................................................................24

9.1 General observations............................................................................................................................................24

9.2 Policy criteria justifying the granting of an exemption.........................................................................................25

9.3 Application of sunsetting to court rules................................................................................................................28

9.4 Refining the class exemptions..............................................................................................................................30

10. Breadth of the sunsetting regime.............................................................................................................................32

10.1 Primary legislation................................................................................................................................................32

10.2 Notifiable instruments..........................................................................................................................................32

11. The Federal Register of Legislation...........................................................................................................................34

12. Division 1 of Part 3 of Chapter 3 (Automatic repeal)................................................................................................35

12.1 Timing of automatic repeal...................................................................................................................................35

12.2 Meaning of ‘sitting day’........................................................................................................................................35

Appendix A: Terms of Reference...........................................................................................................................................37

Appendix B: Submissions received by the Committee..........................................................................................................38

Appendix C1: Sunsetting provisions of the Legislation Act...................................................................................................39

Appendix C2: Sunsetting provisions of the LEOMR...............................................................................................................43

Appendix D: Automatic repeal provisions of the Legislation Act..........................................................................................49

Appendix E: Statistics on the repeal and sunsetting of legislative instruments....................................................................53

About the ReportQuestions or comments on this report should be sent to:

sunsetting@ag.gov.au

Sunsetting Review Secretariatc/- Attorney-General’s Department3-5 National CircuitBarton ACT 2600

Abbreviations used in the Report

For the purposes of this report:

2008 Review means 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 rule-maker 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

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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.

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1. Executive Summary

1.1 Purpose 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 conducted 12 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.

1.2 Consultation

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 <https://www.ag.gov.au/LegalSystem/AdministrativeLaw/Pages/Review-of-the-sunsetting-framework-under-the-legislation-act-2003.aspx>. The Committee received 25 submissions, which are listed in Appendix B. They were primarily from Commonwealth government agencies.

1.3 Recommendations

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 that a 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 of more training opportunities.

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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 Guide to 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 Attorney-General 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 amending subsection 51A(b) of the Legislation Act to require that the Attorney-General be satisfied that the making of the declaration will facilitate the undertaking of the review or the implementation of its findings.

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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 amending paragraph 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 five years.

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 section 54 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 where all the following criteria apply:

a. the instrument is sufficiently large and complex that the administrative burden associated with remaking the instrument would outweigh any regulatory benefit

b. the instrument is subject to regular review, and

c. 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.

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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 amending paragraph 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 amending Division 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.

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2. IntroductionSunsetting 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 Rule making by Commonwealth Agencies, which also laid the foundation for 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 instruments were either 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 Act included a requirement to review the operation of the mechanism within a few years of it having a substantive effect. The Legislation Act states that, unless otherwise provided by another Act, a legislative instrument registered on the FRL on or after 1 January 2005 will sunset on the 1 April or 1 October falling on or after the tenth anniversary 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:

current practices adequately remind responsible ministers:

of the principle that legislative instruments remain in force for only as long as they are needed

that all legislative instruments be subject to ongoing review and culling, and

of the need to put timely arrangements in place to manage the commencement and ongoing operation of the sunsetting provisions

agencies are taking sufficient and appropriate action to cull spent legislative instruments as soon as practicable and identify legislative instruments that will need to be continued beyond their sunsetting date

1 Recommendation 23 of the 1992 ARC report proposed that all existing principal instruments of a legislative character and all instruments subject to the (then only proposed) Legislative Instruments Act should be sunsetted 10 years after making.2 See Appendix E of this report.

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the present sunsetting period of 10 years remains appropriate, and legislative instruments that are exempt from sunsetting are being periodically reviewed.

The Committee also considered the effectiveness of the staged sunsetting of pre-2005 legislative instruments, the packaging of related regulations for review, and the establishment of clear and transparent processes for implementation of the sunsetting regime.

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3. Operation of the sunsetting frameworkSection 49 of the Legislation Act states that the purpose of the sunsetting framework prescribed in Part 4 of Chapter 3 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.

The Committee has considered:

the extent to which the purpose of the sunsetting framework has been realised

factors that may have limited the achievement of this purpose

the extent to which the purpose of the sunsetting framework is still appropriate, and

how performance against this purpose might be improved.

3.1 Purpose of sunsettingSubmissions to this Review generally agreed that the purpose of the sunsetting framework, as set out in section 49 of the Legislation Act, remains appropriate. Most agencies considered that the sunsetting framework has, to some extent, advanced its purpose by facilitating the regular review of legislative instruments and the repeal of irrelevant and out-of-date legislative instruments. Indeed, statistics provided in the Consultation Paper show that 29% of legislative instruments that have appeared in sunsetting lists have been repealed by section 50.

The ultimate purpose of sunsetting remains to ensure that legislative instruments are kept up to date and continue to be fit-for-purpose, through requiring their regular review. The sunsetting provisions do, however, also offer an opportunity for further parliamentary scrutiny of legislative instruments. This is a product of the sunsetting mechanism rather than its purpose.

3.2 Staging of sunsetting dates

In December 2011, the Productivity Commission noted the large numbers of pre-2005 legislative instruments that were due to sunset in 2016 and 2018, and the resulting risk of poor process (through inadequate review) in the rush to renew regulation.3 To ameliorate this, the Productivity Commission recommended that the (then) Legislative Instruments Act 2003 be amended to:

[…] allow more effective ‘smoothing’ of the number of pre-2005 instruments due to sunset over the 2015 to 2018 period.4

In response to this recommendation, the Legislative Instruments Amendment (Sunsetting Measures) Act 2012 inserted subsection 50(1) into the Legislative Instruments Act 2003 to prescribe a staggered sunsetting regime for legislative instruments registered in bulk on 1 January 2005. The Committee was asked to consider the implementation of this recommendation.

The purpose of this provision was to more evenly distribute sunsetting dates to avoid a situation where all legislative instruments that were automatically registered on the commencement of the (then) Legislative Instruments Act 2003 would sunset on the same day.

3 Productivity Commission, Research Report – Identifying and Evaluating Regulation Reforms (December 2011) 65.4 Ibid 67.

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Nonetheless, a number of agencies noted the significant associated workload where large numbers of legislative instruments sunset within a short period of time. These circumstances include the ‘clumping’ of sunsetting dates in cases where major statutory regimes, with large numbers of associated legislative instruments, are reformed.

A common concern raised in submissions was the difficulties associated with evaluating large volumes of legislative instruments each year. Submissions noted that this may affect agencies’ ability to conduct reviews to the appropriate level of detail and raise the prospect that legislation may be amended or remade without adequate scrutiny. Options put forward to address these concerns included:

structuring sunsetting requirements around regulatory frameworks as a whole, rather than around individual legislative instruments, to facilitate the holistic examination of frameworks

allowing departments and agencies to nominate a programme of regulatory frameworks to review over a period so that they can focus their resources on the regulatory frameworks that would most benefit from assessment. To ensure that departments and agencies put forward a sufficiently ambitious programme of work, the nominations could be approved by portfolio ministers, and the Attorney-General or his or her delegate would have the power to grant approval for agencies to spread out the sunset dates of their legislative instruments.

While both options would allow for increased flexibility in the targeting of resources, each option would only be effective if agencies undertook a stocktake of all existing legislative instruments and developed an implementation plan that would allow the development of an appropriate internal framework. The Committee considers that both options would increase the workload associated with sunsetting without necessarily resulting in a corresponding reduction in administrative burden over time. In particular, structuring sunsetting dates around regulatory frameworks as a whole would, in the Committee’s view, exacerbate the problem of ‘clumping’. The Committee also notes that, to some extent, these objectives can be fulfilled by section 51A of the Legislation Act, which allows rule-makers to seek an alignment of the sunsetting dates of multiple legislative instruments to facilitate a thematic review of those instruments.

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.

3.3 Reducing the sunsetting period

The Committee was asked to consider whether the 10-year sunsetting period remains appropriate, as foreshadowed in Recommendation 39 of the 2008 Review.

Most Australian jurisdictions have 10-year sunsetting regimes for delegated legislation. Only New South Wales has a shorter, five-year sunsetting period and, as noted by the 2008 Review, this results in the sunsetting of many New South Wales statutory rules being postponed.5 Further, the draft report of the 2017 Independent Review of the NSW Regulatory Policy Framework found substantive concerns with the five-year cycle and suggested repeal of the five-year sunsetting regime altogether.6

5 Legislative Instruments Act Review Committee, 2008 Review of the Legislative Instruments Act 2003 (2008) 50.6 NSW Regulatory Policy Framework Review Panel, Independent Review of the NSW Regulatory Policy Framework – Draft report for consultation (2017) 97.

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Almost all submissions supported the retention of a 10-year sunsetting period. Many agencies raised concerns about the workload implications of a shorter sunsetting period, particularly specialised agencies where review of a legislative instrument requires significant expenditure of resources.7

One submission noted that a shorter sunsetting period, particularly one of six years or less, is more likely to result in a government reviewing legislation that it may have introduced within its term of office. Therefore, the legislation is more likely to remain consistent with government policy (and less likely to require remaking).

One submission suggested expanding the sunsetting cycle to 15 or 20 years. The Committee does not consider that there is a compelling argument for this, noting that 10 years should allow sufficient time for agencies to gauge the effect of a legislative instrument.8

Accepting that no default period will ever be appropriate in all cases given the diversity and complexity of subsidiary legislation across the Commonwealth, the Committee agrees that retention of a 10-year sunsetting period strikes the most appropriate balance between ensuring legislative instruments remain up to date and imposing a level of administrative burden that may force agencies to, by default, remake instruments in substantially the same form.

2. The Committee recommends that the 10-year sunsetting period be maintained.

3.4 Review of the sunsetting provisions

The bulk registration of older legislative instruments on 1 January 2005 means that, although the sunsetting framework was introduced in 2003, its operation could not be fully assessed until 1 April 2015 when the first group of legislative instruments began to sunset.

In that sense, the sunsetting framework is still in the relatively early stages of operation. Further, many of the legislative instruments that have been through the sunsetting process were drafted more than three decades ago, leaving more scope for the benefits of updating the legislative instruments to outweigh the costs. However, this analysis may differ in relation to newer legislative instruments.

As such, it may be appropriate to undertake a further review of the sunsetting provisions at a later date when more evidence of their operation can be gathered, noting that the last staged repeal of legislative instruments registered in bulk on 1 January 2005 will occur on 1 April 2020. The Committee considers that 2027 would be an appropriate year in which to undertake a second review of the operation of the sunsetting framework on contemporary legislative instruments.

However, the Committee considers that the sunsetting regime is, in general, fulfilling its stated purpose, and requires only minor refinements in order to improve its operation.

3. The Committee recommends that the Legislation Act be amended to require that a second statutory review of the sunsetting provisions be undertaken by 1 October 2027.

7 For example, the statutory provisions relating to the Repatriation Medical Authority’s responsibilities require each review of a Statement of Principles to consider all new medical-scientific evidence. 8 See also the Administrative Review Council’s comments in Rule making by Commonwealth Agencies, Report No. 35 (1992) 55 [7.7].

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4. Agency processes and responsibilitiesThe Committee was asked to consider whether agencies are taking sufficient and appropriate action to cull spent legislative instruments as soon as practicable, and identify legislative instruments that will need to continue beyond their sunsetting date. The Committee notes the 2008 Review’s finding that agencies were not sufficiently active in this respect.9

4.1 Agency processes for managing sunsetting legislative instruments

Submissions demonstrated varying levels of preparedness for sunsetting amongst agencies.

The Committee sought additional information from the agencies that provided submissions regarding their internal processes for managing the sunsetting of legislative instruments. A number of agencies with responsibility for particularly large numbers of legislative instruments provided evidence of robust and effective internal management of sunsetting, including:

regularly updated internal lists of portfolio legislative instruments subject to sunsetting

intra-agency working groups for sharing knowledge on managing sunsetting legislative instruments

incorporating reporting about sunsetting legislative instruments into general planning documents for the agency’s subordinate legislation programme

a dedicated legislation team to oversee sunsetting tasks and engage with the relevant policy area

weekly legislation updates for ministers’ offices and key agency staff, and

publicly notifying reviews of legislative instruments on a rolling basis to better distribute the workload over the full 10-year period.

There was evidence that some agencies remain ill-prepared for sunsetting. The Committee notes that the joint submission of the Senate Standing Committee for the Scrutiny of Bills, the SSCRO and the Parliamentary Joint Committee on Human Rights raised concerns that in some instances instruments are being remade with substantively the same effect, or in identical form, to maintain the status quo pending the completion of a broader review. The Committee agrees with the view expressed in this submission that this appears to indicate a lack of planning for sunsetting and may undermine the sunsetting framework.

Some agencies also provided case studies indicating that some legislative instruments were being remade less than a week before the sunsetting date. The Committee considers that this further supports the conclusion that in some areas, the importance of active engagement with the sunsetting framework is not sufficiently recognised as integral to the maintenance of each agency’s legislative holdings.

The Committee reminds agencies that the remaking of a legislative instrument, even in substantially the same form, still requires considerable resources and can take a significant amount of time. Legislative instruments can have a significant effect on rights and obligations, and the drafting of such instruments is as important a process as the drafting of primary laws. Agencies should review the effectiveness of their internal processes and commence planning for sunsetting legislative instruments well before the sunsetting date. The Committee considers that it would be useful for AGD and OPC to consider mechanisms for promoting awareness and understanding of sunsetting processes and requirements across the Commonwealth. The Committee suggests that this could be implemented through providing regular information sessions on the sunsetting processes, similar to those that were run jointly by AGD and OPC in early 2017.

9 Legislative Instruments Act Review Committee, 2008 Review of the Legislative Instruments Act 2003 (2008) 48.

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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.

The primary responsibility for managing the sunsetting of a legislative instrument rests with the agency responsible for that instrument. However, the Committee notes that AGD and OPC have an important leadership role, being, respectively, the department with portfolio oversight of the sunsetting framework, and the agency that provides drafting services for all legislative instruments made or approved by the Governor-General10 and a majority of other 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 of more training opportunities.

Some submissions raised concerns about the lack of consultation associated with the reviewing and remaking of legislative instruments that are made by one rule-maker but relate to laws administered by another. The Committee notes that section 17 of the Legislation Act requires rule-makers to be satisfied that appropriate consultation, as is reasonably practicable, has been undertaken in relation to a proposed legislative instrument. Paragraphs 15J(2)(d) and (e) require the explanatory statement for a legislative instrument to either describe the nature of that consultation or to explain why no such consultation was undertaken. The Committee draws the attention of agencies to these requirements.

The Committee stresses that, as part of the sunsetting process, agencies are required to ensure that all relevant stakeholders have been identified, and that the level of consultation undertaken is appropriate.

6. The Committee recommends that agencies ensure due consideration is given to the requirements of sections 15J and 17 of the Legislation Act.

4.2 Administrative burden associated with sunsetting

While there was general agreement that the sunsetting framework provides a timely reminder to monitor and review portfolio legislative instruments, many submissions expressed concerns over resourcing and cost challenges associated with the operation of the sunsetting framework, particularly for agencies responsible for many legislative instruments.

Submissions suggested that examples of the administrative burden associated with sunsetting included:

the modern legal considerations associated with remaking older legislative instruments, such as the need to update civil and criminal penalty provisions, which may require legal advice

the need for each provision of the legislative instrument to be reviewed to ensure consistency with the relevant regulation-making power, particularly where there is both a separate legislative power and a ‘necessary and convenient’ power in the primary law

where a review of a sunsetting legislative instrument determines that there is a need to amend primary legislation, for example to resolve uncertainty about the extent of the regulation-making power

10 Legal Services Directions 2017 (Cth) Appendix A.

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where the technical nature of the legislative instrument requires extensive consideration of complex issues, such as developments in medical science

where the nature of regulatory arrangements means that the sunsetting legislative instrument needs to be remade together with other related instruments

the scale of resources associated with undertaking drafting work, consulting with stakeholders, considering regulatory impacts, and preparing explanatory material, and

where the remaking of the legislative instrument is affected by the timing of other government initiatives.

The Committee is of the view that, while resource-intensive, each of these examples of administrative burden is an aspect of good regulatory reform practice that is essential to ensuring that legislation remains fit-for-purpose, appropriate, and legally sound. The Committee also notes that the process of remaking older legislative instruments will necessarily be a complex and long one. However, the incidence of these issues and the resulting workload will significantly reduce once staged sunsetting of older legislative instruments is complete.

Some agencies noted that the sunsetting framework applies indiscriminately to all legislative instruments without having regard to size, importance, the magnitude of the regulatory burden imposed, or whether the legislative instrument has been reviewed as being fit-for-purpose and requiring no further amendment. The Committee considers that its recommendations for refining the exemptions to the sunsetting regime should address these concerns.

A number of submissions queried whether the broader purpose of reducing red tape has been achieved, in light of the previously mentioned concerns about administrative burden. The Committee’s view is that the sunsetting framework has reduced unnecessary regulation by either repealing or refining the statute book. Data provided by OPC suggests that, of the legislative instruments with sunset dates before 1 October 2017, approximately 54% were either repealed before their sunset date or otherwise allowed to sunset.11

This view is supported by case studies provided by a number of agencies. One agency indicated that over 95% of legislative instruments remade by that agency due to sunsetting resulted in ‘significant change’ to content. Another agency noted that, although the process of remaking was resource-intensive, the remade instrument was a significant improvement and also provided additional flexibility. As part of the review and remaking process, one agency combined three highly prescriptive regulations into one largely principle-based regulation which was much shorter and simpler.

4.3 The need for guidance

Many submissions supported the provision of additional guidance on processes for managing sunsetting legislation and, in particular, on conducting fit-for-purpose reviews and thematic reviews. OPC noted a variance in the depth of fit-for-purpose reviews conducted by agencies. While some agencies conduct detailed analysis, planning and consultation before approaching OPC, others simply conduct a review at the legislative instrument level (rather than examining individual provisions). This often leads to further changes being identified at the drafting stage. The Committee considers that further guidance may be of assistance.

Some submissions recommended that the Legislation Act be amended to insert specific review requirements. The Committee does not consider that this is supported by compelling arguments. Codification of review requirements is overly prescriptive and does not take into account the wide variety of agencies, rule-makers and legislative instruments across the Commonwealth. Prescriptive legislative requirements can also be

11 See Appendix E of this report.

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counter-productive if some rule-makers only do what is necessary to comply with the legislative requirements.

Agencies suggested that further guidance could be provided in relation to:

the process for undertaking the common models of legislative review outlined in Attachment B to the AGD Guide, including by providing templates for common documentation such as explanatory statements, consultation and work plans, and drafting instructions

plain language training material for non-legal staff in relation to the efficient design of legislative instruments, covering issues such as end dates and review points

the administrative processes of remaking and registering legislative instruments

the roles and responsibilities of line agencies and central agencies in relation to the parliamentary process for remaking a sunsetting legislative instrument, including the SSCRO scrutiny principles

the roles and responsibilities of agencies in circumstances where the rule-maker of the legislative instrument is from outside the administering portfolio, and

undertaking assessments of the regulatory impact of legislative instruments.

The Committee commends to all agencies the existing guidance material published by AGD, OPC and PM&C on managing the sunsetting of legislative instruments.12 These guidance documents provide useful information on many of the issues raised above. The Committee recommends that AGD, OPC and PM&C review the existing guidance material and update that guidance where appropriate.

A number of submissions also commented on the need for consistency between the existing guides published by AGD, OPC and PM&C. The Committee agrees that consistency is essential and that, just as legislation needs to be reviewed to ensure it remains fit-for-purpose, so too does the guidance material.

The Committee recognises, however, that it should still be a matter for each responsible agency to determine the most appropriate approach and manner of reviewing its legislative instruments, and considers that any additional guidance should be descriptive rather than prescriptive.

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.

12 AGD’s Guide to Managing Sunsetting of Legislative Instruments, OPC’s Instruments Handbook, and PM&C’s Sunsetting legislative instruments guidance note.

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5. Deferral of sunsettingAs noted in the Consultation Paper, deferral is one of a number of mechanisms that provide the flexibility to ensure that the operation of the Commonwealth sunsetting framework does not impose an unreasonable burden on Commonwealth agencies or result in unintended consequences.

The Committee was asked to give particular consideration to the extent of the Attorney-General’s discretion to defer the sunsetting day of a legislative instrument.

5.1 Streamlining the process

Few agencies commented on the practical operation and effectiveness of the deferral mechanism. One submission noted that, because there is no guarantee that a deferral request will be granted, unnecessary contingency preparations may need to be undertaken during the period that a request is under consideration. The Committee notes that the Explanatory Memorandum to the Legislative Instruments Bill 2003 stated:

The rule-maker seeking a certificate from the Attorney-General must clearly indicate the steps that the rule-maker has taken to deal with the ceasing to be in force of the sunsetting instrument.

As such, the Committee is of the view that, regardless of whether an application for deferral is on foot, the rule-maker and his or her agency should nonetheless be actively managing the sunsetting of the legislative instrument. The Attorney-General’s consideration of a deferral application should be incorporated into agencies’ timeframes as a necessary and expected part of ministerial approval processes. The Committee also reminds agencies that section 51 of the Legislation Act does not prescribe a specific period in which a rule-maker may make an application for deferral. Agencies should, where possible, commence the process of seeking a deferral sufficiently in advance of the legislative instrument’s sunsetting date to account for the significant demands on drafting resources, and the timeframes required for ministerial consideration. However, the Committee acknowledges there can be circumstances where this is not possible.

In acknowledging that the deferral process is technical and can be difficult to navigate, the Committee recommends that AGD update its guidance material to provide forms and templates as appropriate.

9. The Committee recommends that AGD give consideration to including additional templates in the AGD Guide to assist agencies to navigate the deferral process.

One submission raised concerns that, where a certificate of deferral for a legislative instrument is issued in circumstances where the section 51 criteria may not have been adequately met, the validity of that instrument could be called into question. The Committee is not aware of any such challenge having been made, and notes that there is little evidence to support this being a significant issue. Further, the Committee notes that legislative amendment purporting to conclusively establish the validity of a section 51 certificate is unlikely to have the desired effect.13

5.2 The Attorney-General’s discretion to defer sunsetting

As at 15 September 2017, the Attorney-General had granted 24 deferrals of sunsetting.14

13 See section 9.4.2 of this report.14 See Appendix E of this report.

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Section 51 of the Legislation Act provides for the Attorney-General to issue a certificate to defer the sunsetting day for a legislative instrument for a period of six or 12 months. The Attorney-General must be satisfied that one or more of the following criteria is met:

the instrument would be likely to cease to be in force within 12 months after the sunsetting day (subparagraph 51(1)(b)(i))

an instrument proposed to be made in substitution for the instrument will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen and avoided (subparagraph 51(1)(b)(ii)), or

an instrument proposed to be made in substitution for the instrument will not be able to be completed before the sunsetting day because the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed (subparagraph 51(1)(b)(ii)).

Paragraph 51(2)(a) of the Legislation Act provides that certificates of deferral must include a statement of reasons for the issue of the certificate.

As at 15 September 2017, only one deferral has been granted under subparagraph 51(1)(b)(ii).15 The remaining 23 have been granted under the criterion in subparagraph 51(1)(b)(i).

The majority of submissions supported the expansion of section 51 of the Legislation Act to account for a broader range of circumstances in which a deferral may be necessary. Suggestions for expansion included:

allowing the Attorney-General to grant deferrals for a longer period of time

allowing multiple deferrals to be granted for the same legislative instrument, and

expanding the criteria to explicitly allow deferrals to be granted where the process of remaking the legislative instrument is complex.

It is important that a balance is struck between allowing deferrals to be granted in all cases where one is warranted, and preventing use of the deferral provisions as a contingency measure where an agency has failed to adequately prepare for the sunsetting of a legislative instrument.

A number of agencies noted that delaying sunsetting by 12 months is often insufficient. A common example is where the remaking of a legislative instrument is contingent upon proposed legislation that is being considered by Parliament and a 12 month deferral would not allow for the full disallowance period to conclude before the new sunset date.

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.

The Committee considers that a certificate purporting to defer the sunsetting of a legislative instrument by 24 months is a significant matter that should be subject to parliamentary scrutiny. There would otherwise be an inconsistency where declarations of alignment issued under section 51A of the Legislation Act are disallowable legislative instruments but certificates deferring sunsetting by 24 months are not.16

15 See the Legislation (Deferral of Sunsetting—Commerce Imports) Certificate 2016, where the Attorney-General was satisfied that the substitute instrument could not be completed before the scheduled sunsetting day for reasons that the rule-maker could not have foreseen and avoided. No deferral has been granted on the basis that the dissolution or expiration of the House of Representatives or the prorogation of the Parliament rendered it inappropriate to make a replacement instrument before a new government is formed.16 Paragraph 51A(2)(b) provides that a declaration can delay sunsetting by any period up to five years. The Legislation (ACT Self-Government Instruments) Sunset-altering Declaration 2017, for example, only delayed the sunsetting of the affected instruments by a maximum of 24 months.

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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

certificates granting deferrals of between 12 and 24 months are disallowable legislative instruments.

5.2.1 Criteria for deferral

It was apparent from the submissions that there is some confusion amongst agencies regarding the purpose of the deferral provisions. Agencies noted that section 51 of the Legislation Act does not take account of changes in government policy, changes in responsible ministers, longer than anticipated processes associated with sunsetting, or delays in remaking a legislative instrument arising from parliamentary consideration of proposed changes to the enabling legislation.

Subparagraph 51(1)(b)(i), which sets out one of the criteria for deferral, requires the Attorney-General to be satisfied that the relevant legislative instrument is likely to cease to be in force within 12 months. The Committee considers that this is broad enough to encompass each of the circumstances described above.

It is the Committee’s view that the deferral provisions should be used sparingly and should not be considered as a mechanism for continually delaying the review and remaking of a legislative instrument. Any expansion of the already broad criteria in section 51 could increase the risk of less meritorious claims for deferrals being brought forward. Nonetheless, additional guidance on the interpretation of section 51 would be helpful.

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.

The 2016 Exemptions Regulation was the subject of a disallowance motion moved by the Chair of the SSCRO on 31 March 2017, which was withdrawn on 15 August 2017. The potential disallowance of that regulation has illustrated a gap in the deferral provisions. If the 2016 Exemptions Regulation had been disallowed in August 2017, all of the legislative instruments affected by that regulation would no longer have been exempt from sunsetting. Some of the legislative instruments covered by the 2016 Exemptions Regulation would therefore have sunset on 1 April 2017, resulting in a four-month gap in the law that may have required the making of retrospective legislation.

As such, the Committee considers that it is appropriate that the Legislation Act be amended to clarify that a deferral may be granted in circumstances where the Attorney-General has given policy approval to exempt a legislative instrument from sunsetting, but where extenuating circumstances may prevent that exemption from coming into force before that instrument would have sunset.

13. The Committee recommends that section 51 of the Legislation Act be amended to allow the Attorney-General 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.

5.2.2 Prorogation of Parliament as a reason for deferral

Subparagraph 51(1)(b)(ii) of the Legislation Act allows the Attorney-General to defer the sunsetting of a legislative instrument if satisfied:

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that an instrument proposed to be made in substitution for the instrument will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen and avoided or because the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed.

Most stakeholders supported the retention of the prorogation of Parliament as a reason for deferral. An unexpected prorogation could substantially delay a replacement legislative instrument being tabled or, by virtue of subsection 42(3) of the Legislation Act, the resolution of a notice to disallow a replacement legislative instrument.

The Committee accepts the view that the reference in subparagraph 51(1)(b)(ii) to ‘before a new government is formed’ suggests that this provision was only intended to cover circumstances in which the prorogation was a precursor to an election.17

5.2.3 Delegation of power to grant deferral

The Committee did not receive many submissions on this issue. The Committee considers that any delegation of the Attorney-General’s powers to grant a deferral of sunsetting would be inappropriate, particularly if the Committee’s recommendation to allow deferrals of up to 24 months is implemented.

As deferrals are not subject to disallowance, it is appropriate that this power be exercised at a ministerial level. Further, given the low number of deferrals granted by the Attorney-General to date, there does not appear to be a sufficiently high level of administrative burden to justify the delegation of this power. Further, there is no evidence that the process would be significantly expedited if an application for deferral were to be considered by a Senior Executive Service delegate rather than the Attorney-General personally.

14. The Committee recommends that the Attorney-General’s power to grant deferrals of sunsetting should remain non-delegable.

5.3 Replacing ‘cease to be in force’ with ‘repealed’

Few agencies provided input on whether section 51 of the Legislation Act should be amended to ensure consistency in the use of the term ‘repealed’ and to encourage agencies to actively clean up the statute book. Of those that did respond, most agreed that a single term should be used consistently throughout the Legislation Act.

The Committee notes the advice of OPC that drafting practice is to use the term ‘repeal’ to indicate that a law or provision should be removed from the statute book. As such, the Committee considers that the phrase ‘cease to be in force’ should be retained in subparagraph 51(1)(b)(i) to ensure that deferrals can be granted in circumstances where, due to specific legislative requirements, a legislative instrument will cease to be in force within 12 months but will not necessarily be repealed. However, the Committee considers that the reference to ‘taken to cease to be in force’ in paragraph 51(1)(c) should be replaced with ‘repealed’ to more accurately reflect the effect of a certificate of deferral.

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’.

17 Office of Parliamentary Counsel, Submission to the Sunsetting Review Committee, Review of the Sunsetting Framework under the Legislation Act 2003, 27 June 2017, 4 [29].

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5.4 Requirement to table certificates of deferral

The Committee considers that deferral of sunsetting is an important matter and that it is appropriate that Parliament continue to be advised when deferrals are granted.

The tabling requirement in subparagraph 51(2)(b) of the Legislation Act requires the Attorney-General to (emphasis added):

cause a copy of the certificate to be laid before each House of the Parliament not later than 6 sitting days of that House after the issue of the certificate.

The Committee notes that this conflicts with the tabling requirements for legislative instruments under subsection 38(1) of the Legislation Act, which requires OPC to (emphasis added):

arrange for a copy of each registered legislative instrument to be delivered to each House of the Parliament to be laid before each House within 6 sitting days of that House after the registration of the instrument.

The Committee’s view is that there is no reason for certificates of deferral, as legislative instruments, to have a slightly different tabling requirement.

16. The Committee recommends that paragraph 51(2)(b) of the Legislation Act be repealed.

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6. Alignment of sunsetting to facilitate thematic reviewThe Productivity Commission recommended in its Research Report – Identifying and Evaluating Regulation Reforms (December 2011) that the (then) Legislative Instruments Act 2003 should be amended to:

provide flexibility and incentives to package related regulations for review, by enabling regulations to extend beyond their sunset date if they are scheduled to be reviewed as part of a package of related regulation within a reasonable period.18

Consistent with this recommendation, the Legislative Instruments Amendment (Sunsetting Measures) Act 2012 inserted section 51A into the then Legislative Instruments Act 2003. The citation of this provision subsequently became section 51A of the Legislation Act, following the commencement of the Acts and Instruments (Framework Reform) Act 2015. The objective of section 51A is to encourage thematic reviews of groups of related legislative instruments by allowing the Attorney-General to declare, by legislative instrument, a common sunsetting date for those instruments (a ‘section 51A declaration’).

The Committee considered the outcomes of the implementation of the Productivity Commission’s recommendations by the Legislative Instruments Amendment (Sunsetting Measures) Act 2012, and other policy and procedural developments and guides.

There was broad support from agencies regarding the operation of section 51A of the Legislation Act, with one submission noting that although (at the date of that submission) only seven thematic reviews had commenced following a section 51A declaration, these have covered a total of over 120 legislative instruments.19 The Committee is of the view that this demonstrates that section 51A has fulfilled its purpose, if only in a limited number of cases.

6.1 The operation of section 51A of the Legislation Act

6.1.1 Subjecting section 51A declarations to disallowance

Submissions provided mixed responses on this issue. Some agencies raised concerns that subjecting section 51A declarations to the disallowance process creates uncertainty and could potentially delay the commencement of the thematic review for the entirety of the disallowance period. Other agencies noted that, because it can involve the delay of a legislative instrument’s sunsetting date for up to five years, a section 51A declaration is an important matter that should be subject to parliamentary oversight.

On balance, the Committee considers that the latter view is preferable. The normal operation of parliamentary processes, including the running of disallowance periods, is not an appropriate reason to override parliamentary scrutiny, particularly as section 51A declarations can provide up to an additional five years to undertake a thematic review. The Committee notes that agencies should factor disallowance processes into their timeframes when planning for thematic reviews.

17. The Committee recommends that declarations made under section 51A of the Legislation Act should continue to be disallowable.

18 Productivity Commission, Research Report – Identifying and Evaluating Regulation Reforms (December 2011) 67.19 The Attorney-General has made an eighth declaration of alignment since that submission was made. See Appendix E of this report for further details.

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6.1.2 Requirement for statement of reasons

The proposal that a statement of reasons should be required to be included in section 51A declarations, similar to the requirement for certificates of deferral under paragraph 51(2)(a), received general support from agencies. The Committee considers that the inconsistency between section 51 certificates of deferral and section 51A declarations in relation to whether a statement of reasons is required is anomalous. As such, the Committee supports the preparation of statements of reasons for section 51A declarations, as it would improve transparency and encourage agency accountability in undertaking robust thematic reviews.

OPC suggested that the explanatory statement, rather than the instrument itself, is the most appropriate place for a statement of reasons to be located. The Committee agrees with this suggestion in relation to both certificates of deferral and section 51A declarations.

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.

6.1.3 Alignment to facilitate the implementation of a completed thematic review

All agencies that responded to this question agreed that section 51A should allow the Attorney-General to align the sunsetting dates of legislative instruments that are the subject of a completed thematic review in order to facilitate the implementation of the findings of that review. The Committee considers that, as the implementation of findings is an essential step in the process of undertaking a thematic review, this proposal would not be inconsistent with the objective of section 51A. Such an amendment would also allow alignment to facilitate the implementation of findings reached by completed reviews that were instigated for reasons other than the sunsetting process.

19. The Committee recommends amending subsection 51A(b) of the Legislation Act to require that the Attorney-General be satisfied that the making of the declaration will facilitate the undertaking of the review or the implementation of its findings.

6.1.4 Application to legislative instruments with the same sunsetting dates

A number of submissions supported expanding section 51A to apply to groups of legislative instruments that will be subject to a thematic review but that already have the same sunsetting dates. One submission noted that the existence of different sunsetting dates for legislative instruments that are related by theme may often be a matter of mere happenstance. Another submission suggested that legislative instruments having the same sunsetting date does not necessarily result in a less complex or time-consuming review and that expanding section 51A to include such circumstances may allow for a more thorough review.

The Committee does not consider that there is a compelling argument for expanding section 51A in this way. Agencies should take early action to prepare for the sunsetting of their legislative instruments, particularly those related by theme and due to sunset on the same day and for which review is expected to be time consuming and complex. Section 51A is a mechanism to align the sunsetting dates of legislative instruments for the purposes of review, rather than a contingency measure to preserve multiple legislative instruments that would otherwise sunset.

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Allowing the sunsetting of legislative instruments to be delayed by up to five years whenever a review was to occur could, in the Committee’s view, leave greater scope for perfunctory reviews being undertaken purely as a preservation measure.

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.

6.2 Policy guidance on types of thematic review

Of the few agencies that provided input on this question, most indicated that more detailed policy guidance and/or training on, firstly, identifying legislative instruments suitable for thematic review and, secondly, on conducting a thematic review would be helpful. The Committee notes the diversity of legislative instruments across government portfolios and considers that any policy guidance should be broad and descriptive, rather than prescriptive.

In general, submissions indicated some level of confusion about the operation of section 51A, particularly in relation to the meaning of ‘facilitate the undertaking of the review and the implementation of its findings’ and the process of applying for a declaration. The Committee considers that this is an area in which additional guidance may be helpful.

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.

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7. Tabling of sunsetting listsThe 2008 Review recommended that:

[…] the Attorney-General remind responsible Ministers: […]c) of the need to put timely arrangements in place to manage the commencement and ongoing operation of the sunsetting provisions.20

The Committee considered whether current practices satisfy that recommendation.

Section 52 of the Legislation Act requires the Attorney-General to table in both Houses of Parliament a list of legislative instruments which are due to sunset in 18 months. Section 52 also requires OPC to arrange for a copy of that list to be provided to the rule-maker responsible for each legislative instrument appearing on the list; this is done by providing the list to portfolio departments and instructing them to provide it to the relevant rule-makers. This operates as an administrative mechanism only and has no legal effect on the sunsetting of legislative instruments. It is the primary mechanism by which responsible ministers, the Parliament and agencies are reminded to take action on legislative instruments of continuing relevance.

In general, agencies commended the tabling of sunsetting lists as an excellent formal trigger for an agency to engage with policy areas within their portfolio and commence fit-for-purpose reviews and risk assessments. A number of agencies queried whether 18 months was sufficient for notification purposes, particularly as action would often need to be taken prior to the 18 months before sunsetting. Those agencies suggested amending section 52 to require notification of legislative instruments that will sunset in 24 months. Others proposed additional formal notifications of legislative instruments due to sunset in the next six or nine months.

The Committee considers that there is little utility in extending section 52 to include legislative instruments sunsetting in 24 months, as agencies generally already receive more than 18 months’ notification by way of consultation on draft sunsetting lists prior to tabling. The Committee considers that 18 months strikes the best balance between allowing sufficient time for agencies to take action and avoiding an excessive notification period that may not encourage early action. The Committee does, however, agree that notification of legislative instruments due to sunset within the next six or nine months could be provided through the FRL to the Legislation Liaison Officers of each agency. This may serve as a useful reminder for agencies that have not yet taken action.

Submissions also raised concerns about the burden on departments to disseminate information to smaller portfolio agencies. The Committee considers that it is the role of each responsible department to ensure that all its portfolio agencies are aware of their sunsetting obligations.

The Committee reminds all agencies that the tabling of sunsetting lists and other formal notifications does not replace the responsibility of agencies to monitor the sunsetting dates of their own legislative instruments.

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.

20 Legislative Instruments Act Review Committee, 2008 Review of the Legislative Instruments Act 2003 (2008) 49.

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8. Parliamentary roll overUnder section 53 of the Legislation Act, either House of Parliament can pass a resolution to defer the sunsetting date of a legislative instrument for a further 10 years (a parliamentary roll over). Since the commencement of the Legislative Instruments Act 2003, no resolution of Parliament under section 53 has ever been sought.

The Committee was asked to consider the purpose of section 53 of the Legislation Act and the extent to which that provision is still appropriate.

8.1 Purpose and role of the parliamentary roll over mechanism

Parliamentary roll over recognises the ability of the Parliament to prevent the sunsetting of a legislative instrument. It was during the debate on the Legislative Instruments Bill 1996 that Senator Andrew Murray, on behalf of the Australian Democrats, first raised concerns about the lack of a mechanism for preventing ‘the government of the day turfing out a series of regulations which were very helpful on social and employment matters, for instance, or community or environment matters, which the community as a whole valued and the government of the day might not’.21 During the debate on the Legislative Instruments Bill 1996 [No.2], Senator Murray again sought an amendment to the Bill to prescribe a parliamentary roll over-type provision, stating that ‘it is the place of parliament to have the opportunity to reject the intention of government to sunset a particular regulation’.22 This amendment was supported by the Opposition, but rejected by the government of the day. When a parliamentary roll over provision was finally introduced in the Legislative Instruments Bill 2003, it was done to ‘[address] a concern previously expressed by the Opposition’.23

There was broad support from agencies for retaining this mechanism, in recognition of Parliament’s ultimate authority over delegated legislation.

24. The Committee considers that section 53 of the Legislation Act is still appropriate and recommends that it be retained.

8.2 Time limit on moving a resolution

Most agencies agreed that it is an inappropriate restriction on Parliament to require that a resolution to roll over a legislative instrument must be passed within six months after that instrument is mentioned in a sunsetting list or a certificate of deferral. Agencies were concerned that the six-month time limit was unnecessarily restrictive and may not allow sufficient time for an agency to initiate the roll over process, particularly for large and complex legislative instruments where preparations for managing sunsetting may need to commence earlier.

25. The Committee recommends amending paragraph 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.

21 Commonwealth, Parliamentary Debates, Senate, 3 December 1997, 10295 (Andrew Murray).22 Commonwealth, Parliamentary Debates, Senate, 14 May 1998, 2826 (Andrew Murray).23 Commonwealth, Parliamentary Debates, Senate, 9 September 2003, 14640 (Ian Campbell). See also Commonwealth, Parliamentary Debates, Senate, 2 December 2003, 18628 (Brian Greig) and Commonwealth, Parliamentary Debates, Senate, 2 December 2003, 18625 (Joseph Ludwig).

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9. Exemptions from sunsetting

9.1 General observations

The majority of submissions were critical of the scope of the current sunsetting exemptions, with many agencies of the view that the existing scope of exemptions is too narrow. The Committee has made a number of recommendations to address these concerns in a way that is consistent with the objectives of the sunsetting framework. However, given the potentially significant impact that sunsetting exemptions have on agencies, the Committee also considers that it would be desirable to subject the exemptions framework to regular review.

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 five years.

If, in designing a new, or reviewing an existing legislative instrument, agencies consider that an exemption may be appropriate, then planning for seeking an exemption should occur as part of the design or review process. This was a matter of substantial concern in relation to the 2016 Exemptions Regulation; if it had been disallowed, a number of legislative instruments covered by that Regulation would have already sunset, and there would have been insufficient time to remake a number of other affected legislative instruments before their sunsetting date. The Committee reminds agencies that an exemption from sunsetting for a legislative instrument may be sought at any time in the life of the instrument, and recommends that agencies begin the process of seeking an exemption from sunsetting well in advance of the sunsetting date of the legislative instrument in question.

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.

The Committee considered whether additional exemptions should be provided under subsection 54(1) of the Legislation Act and sections 11 and 12 of the LEOMR. Submissions provided a number of compelling arguments for broadening the scope of the exemptions framework. However, the Committee notes that the outcome of seeking an exemption from sunsetting is not always assured until the conclusion of parliamentary scrutiny processes and the disallowance period.24

The SSCRO has raised concerns about the absence of sufficiently strong justification being provided in the explanatory materials supporting new exemptions from sunsetting. The Committee particularly notes the SSCRO’s comments in relation to the 2016 Exemptions Regulation:

Notwithstanding the [SSCRO’s] resolution to withdraw its protective notice of motion on this occasion, the [SSCRO] remains concerned about the executive use of delegated legislative power to exempt significant pieces of delegated legislation from the sunsetting framework of the Legislation Act.

The [SSCRO] expressly notes its view that an exemption from the sunsetting requirements of the Legislation Act is a significant matter. The [SSCRO’s] position in relation to the exemption of the Migration Regulations from sunsetting is based on the circumstances in this particular case, and should not be seen to constitute a general acceptance of exemptions from the sunsetting framework. The [SSCRO] considers that the

24 See for example the disallowance motion on the Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016.

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circumstances in which an exemption will be appropriate are limited, and will continue to analyse any such proposal carefully.

If future exemptions from sunsetting are proposed in delegated legislation, the [SSCRO] will expect the accompanying justification to take its expectations into account and to provide a detailed justification of the need for an exemption from the existing sunsetting requirements of the Legislation Act. In particular, this should address how Parliament will retain oversight of the review process of such delegated legislation.25

Accordingly, agencies should note that Parliament expects future proposed exemptions to be accompanied by robust and thorough justification that adequately acknowledges the significance of exempting a legislative instrument from sunsetting.

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.

Some agencies suggested that all sunsetting exemptions should be prescribed in primary legislation. This would, however, reduce the effectiveness of the LEOMR as a comprehensive record of current sunsetting exemptions. The Committee’s view is that allowing rule-makers to prescribe exemptions in their own enabling legislation removes both AGD and SSCRO oversight of proposed new exemptions.

29. The Committee recommends that all exemptions from sunsetting (other than those set out in section 54 of the Legislation Act) should be prescribed in the LEOMR.

9.2 Policy criteria justifying the granting of an exemption

There are five long-standing criteria that can justify granting an exemption from sunsetting:

the rule-maker has been given a statutory role independent of government, or is operating in competition with the private sector

the instrument is designed to be enduring and not subject to regular review

commercial certainty would be undermined by sunsetting

the instrument is part of an intergovernmental scheme, and/or

the instrument is subject to a more stringent statutory review process than is set out in the Legislation Act, and preserving that process is important.

One submission noted that the existence of policy criteria such as the need for commercial certainty and the existence of intergovernmental arrangements meant that, in practice, it was likely that many of the legislative instruments that are exempt from sunsetting are larger and more complex instruments, which may have a greater potential to benefit from regular review.

The Committee considers that, while this is a valid concern, it is a necessary consequence of the need to promote commercial certainty and to avoid the unilateral sunsetting of legislative instruments that affect multiple jurisdictions.

25 Senate Standing Committee on Regulations and Ordinances, Parliament of Australia, Delegated Legislation Monitor 9 of 2017 (2017) 19.

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9.2.1 Large and complex legislative instruments already subject to regular amendment

A key concern raised in submissions was that the existing exemptions did not adequately balance the purposes of sunsetting with the significant cost and administrative burden associated with reviewing and remaking large, complex legislative instruments that are already subject to regular review. Submissions noted that there is no need for the sunsetting framework to apply to legislative instruments that are already subject to regular review and amendment, as in most cases those instruments are fit to be remade without substantial policy changes at the point of sunsetting.

The Committee recognises that there is a very substantial amount of work associated with the remaking of large legislative instruments. Even when the instrument is being remade in largely the same form, there are still significant drafting and other costs and burdens associated with the need for extensive transitional provisions.

The Committee acknowledges that there are circumstances in which the nature of the legislative instrument, and the level of transitional provisions required, means that the administrative burden arising from a 10-year review and remaking cycle would outweigh any regulatory benefit brought by the operation of the sunsetting framework.

30. The Committee recommends that the policy criteria justifying the granting of exemptions from sunsetting should be expanded to include circumstances where all the following criteria apply:

a. the instrument is sufficiently large and complex that the administrative burden associated with remaking the instrument would outweigh any regulatory benefit

b. the instrument is subject to regular review, and

c. the instrument is subject to regular amendment.

9.2.2 Legislative instruments governing frozen ‘closed class’ schemes

There was broad support for inserting a new item into section 11 of the LEOMR to prescribe a new class of exemption from sunsetting for legislative instruments governing frozen ‘closed class’ schemes. Agencies suggested, and the Committee agrees, that as these schemes only apply to a closed class of persons, regular review of the governing legislative instruments is inappropriate.

In any case, it is likely that such instruments would fall under one of the five existing long-standing policy criteria justifying the granting of an exemption, namely that the instrument is designed to be enduring and not subject to regular review. This criterion is intended to cover circumstances where the nature of the legislative instrument makes it unnecessary for it to be reviewed and remade every 10 years.26 The Committee recommends taking action to explicitly recognise that it is not appropriate for instruments governing closed class schemes to be subject to the sunsetting framework.

It was suggested that, rather than introducing a new class exemption into the LEOMR, a specific exclusion for each scheme could be put in place at the time that the scheme becomes closed.27 The Committee considers that this would require an excessively onerous level of active monitoring of existing schemes.

26 For example, item 20 of section 12 of the LEOMR prescribes an exemption for ‘a determination made solely for the purposes of either or both of sections 13 and 13A of the Currency Act 1965’. Such determinations prescribe the standard composition, weight, design and dimension of the coins, and are not appropriate to be reviewed and remade every 10 years.27 Office of Parliamentary Counsel, Submission to the Sunsetting Review Committee, Review of the Sunsetting Framework under the Legislation Act 2003, 27 June 2017, 9-10.

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However, noting the problems associated with potentially vague or unclear class exemptions, the Committee considers that it would be appropriate for the policy criteria justifying the granting of exemptions to be updated to explicitly cover legislative instruments governing closed class schemes.

31. The Committee recommends 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.

9.2.3 Legislative instruments governing time-limited schemes

One agency also suggested that exemptions from sunsetting should be extended to legislative instruments implementing schemes that are inherently time-limited but may extend beyond the 10-year sunsetting period. The Committee does not see a compelling argument for exempting such instruments from sunsetting. It is not inconceivable that a legislative instrument governing a fixed-term scheme would still benefit from periodic review and remaking.

9.2.4 Parliamentary oversight of review processes

While regular parliamentary review of delegated legislation is not a purpose of the framework, the Senate Standing Committee for the Scrutiny of Bills, the SSCRO and the Parliamentary Joint Committee on Human Rights consider that the 10-year sunsetting framework provides an essential opportunity for Parliament to ensure the content of legislative instruments is current. The joint submission of these committees emphasises that this ensures Parliament maintains effective and regular oversight of the legislative power it has delegated, including the opportunity to consider disallowance of legislative instruments that have been remade due to sunsetting.

The SSCRO reiterated this position in the context of its comments on the 2016 Exemptions Regulation, which amended the LEOMR to insert new exemptions from the sunsetting and disallowance regimes under the Legislation Act. The 2016 Exemptions Regulation prescribed a new exemption from sunsetting for the Migration Regulations 1994 on the basis that those Regulations had been amended to prescribe a new statutory review requirement.28

The Legislation Act provides that the primary purpose of the sunsetting framework is to ensure that legislative instruments are regularly reviewed to ensure that they remain fit-for-purpose and that unnecessary legislative instruments are repealed.

However the Committee notes the SSCRO’s statement that:

[It] accepts that the [2016 Exemptions Regulation] has been made in accordance with statute. However, the [SSCRO’s] focus where an exemption from sunsetting is proposed is to ensure that Parliament maintains effective and regular oversight of the power it has delegated (including an opportunity to consider the disallowance of an instrument as a whole, which is the process that applies when disallowable legislative instruments are remade due to sunsetting).29

The SSCRO also noted that it:

28 Migration Amendment (Review of the Regulations) Regulation 2016.29 Senate Standing Committee on Regulations and Ordinances, Parliament of Australia, Delegated Legislation Monitor 9 of 2017 (2017) 18.

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[…] considers that it is essential for Parliament to retain direct oversight of the outcomes of the review process of significant pieces of delegated legislation […]30

The sunsetting framework recognises that there are countervailing policy considerations that justify the exemption of certain legislative instruments from the requirements of the 10-year cycle of review and remaking. The Committee notes that the remaking of legislative instruments provides an opportunity for Parliament to reconsider the appropriateness of legislative instruments and acknowledges the importance of Parliament retaining oversight of the power it has delegated to the Executive.

In relation to the exemption of the Migration Regulations from sunsetting, the SSCRO was concerned that the requirement to review the Migration Regulations did not include that they be remade. The SSCRO requested that the outcomes of the review process be tabled in Parliament.

The Committee notes the SSCRO’s concerns and considers that it is a matter for the responsible minister to determine, in prescribing a statutory review requirement, whether it is appropriate for the outcomes of those reviews to be tabled in Parliament.

9.2.5 Policy or legislative criteria

Most submissions agreed that the policy criteria justifying the granting of an exemption should remain in policy, rather than legislation. Some agencies raised concerns about the difficulty in understanding the policy intention behind the criteria and suggested that a legislative basis for the criteria will provide greater certainty.

Given that the operation of the sunsetting framework is still in its early stages, the Committee sees the benefit of policy, rather than legislative, criteria in providing greater flexibility to adapt to new sunsetting issues that may arise over time. Further, specifying criteria in the legislation could be counterproductive, as it could create significant uncertainty regarding the legality of an exemption rule. At the same time, listing the criteria in policy does not shield them from parliamentary oversight, as all new exemptions will be subject to parliamentary scrutiny through the disallowance process.

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.

9.3 Application of sunsetting to court rules

The Committee notes that the application of the sunsetting framework to rules of court is a matter of some concern to the federal courts. As noted in their joint submission, rules of court are exempt from the Legislation Act under paragraph 8(8)(d), which specifies that ‘rules of court or a compilation of rules of court’ are not legislative instruments, and cannot become legislative instruments through registration as legislative instruments.

However, the following Acts specifically reapply the Legislation Act to the respective rules of court:

subsection 86(2) of the Judiciary Act 1903 – for rules made by the High Court

subsection 59(4) of the Federal Court of Australia Act 1976 – for rules made by the Federal Court

30 Ibid.

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sections 26E and subsections 37A(14) and 123(2) of the Family Law Act 1975 – for rules made by the Family Court, and

subsection 81(3) of the Federal Circuit Court of Australia Act 1999 – for rules made by the Federal Circuit Court.

These Acts authorise the four major rules of court and subject them to the registration, sunsetting and disallowance provisions of the Legislation Act.

The Committee is aware that there are other rules which could be rules of court, but to which the Legislation Act has not been reapplied:

Admiralty Rules 1988

Court Martial and Defence Force Magistrate Rules 2009, and

Summary Authority Rules 2009.

The policy rationale for including certain rules of court within the sunsetting regime has not been set out in the explanatory material for the relevant Acts. It is also unclear why the Legislation Act has been reapplied to certain rules of court but not others.

The Committee notes that rules of court undergo ‘constant and detailed scrutiny and review by subject area experts, frequently with the benefit of argument by external subject area experts, and with decisions about the operation of those rules in individual circumstances often published publically and sometimes subject to judicial review or appeal’.31

Additionally, separation of powers considerations support the conclusion that rules of court should be exempted from sunsetting and disallowance. Rules of court are made by the judges of the relevant court. It would, therefore, be preferable to minimise the extent to which the legislature prescribes how these rules are developed or maintained.

The Committee considers that these are compelling arguments for exempting rules of court 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 under the Legislation Act.

9.4 Refining the class exemptions

9.4.1 The ‘intergovernmental scheme’ exemption

The Committee considered the appropriateness of the scope of subsection 54(1) of the Legislation Act, which provides that the sunsetting provisions do not apply:

in relation to a legislative instrument if the enabling legislation for the instrument (not being the Corporations Act 2001):

(a) facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States; and

31 High Court, the Federal Court, the Family Court and the Federal Circuit Court, Joint submission to the Sunsetting Review Committee, Review of the Sunsetting Framework under the Legislation Act 2003, 6 July 2017, 4.

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(b) authorises the instrument to be made by the body or for the purposes of the body or scheme.

Agencies generally agreed that subsection 54(1) remains appropriate and that, for clarity, paragraph 54(1)(a) should be amended to explicitly provide for intergovernmental bodies and schemes involving the Commonwealth and one or more States or Territories. The Committee agrees with this proposal and considers that, for consistency, a similar amendment should also be made to paragraph 44(1)(a) of the Legislation Act.

36. The Committee recommends amending paragraph 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.

A number of submissions agreed that it would be preferable for all exemptions to be located in one instrument. However, one submission noted that, because subsection 54(1) deals with the relationship between the States and the Commonwealth, it may be more appropriate for this particular exemption to remain in primary legislation. The Committee considers that this is the preferable view.

37. The Committee recommends that the exemption prescribed by subsection 54(1) remain in the Legislation Act.

9.4.2 Ambiguity of class exemptions

A number of submissions raised concerns about the perceived ambiguity of the class exemptions prescribed under subsection 54(1) of the Legislation Act and section 11 of the LEOMR, and suggested that there was a level of uncertainty around determining whether a legislative instrument falls within one of the classes. There was also concern that the explanatory statement to the LEOMR may not provide sufficient information in relation to the existing classes of legislative instruments that (under section 11) are not subject to sunsetting.

Currently, it is the responsible agency that must determine whether a class exemption applies to their legislative instrument. AGD generally recommends that agencies seek legal advice, as there could be significant consequences if an agency relied on a class exemption and a court subsequently determined that no exemption applied, and as such the legislative instrument had already sunset. In order to provide certainty, some agencies choose to seek a specific exemption under section 12 of the LEOMR for a legislative instrument that may already be subject to a class exemption. The Committee acknowledges that this imposes a considerable administrative burden.

Subsection 54(1) of the Legislation Act prescribes an exemption from sunsetting for a legislative instrument where its enabling legislation ‘facilitates the establishment or operation of an intergovernmental body or scheme’. Submissions noted that the wording of this provision has caused reluctance to rely on this exemption. There is a lack of clarity, for example, as to whether subsection 54(1) would apply in relation to legislation that facilitated several intergovernmental schemes, or to legislation where only part of that legislation established an intergovernmental body.

Submissions expressed concern about item 1 of section 11 of the LEOMR, which exempts ‘instrument[s] the sole purpose of which, or a primary purpose of which, is to give effect to an international obligation of Australia’. Submissions noted that a significant proportion of matters dealt with in legislation have arisen directly or indirectly from an international obligation of Australia and that it is unclear how close the nexus needs to be between the international obligation and the enabling domestic legislation. Similarly, one submission noted the lack of clarity around the breadth of legislative instruments covered by item 6 of section 11 of the LEOMR, which exempts ‘instruments (other than a regulation) relating to superannuation’.

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The Committee’s view is that the scope of subsection 54(1) of the Legislation Act and section 11 of the LEOMR are appropriate and should continue to operate as a safety net for legislative instruments that clearly fall within their scope. The Committee considers that it is preferable for the majority of sunsetting exemptions to be specified under section 11 of the LEOMR, and that agencies should continue to treat specific exemptions as the preferred option where it is not clear that a class exemption applies. Other suggestions for addressing this uncertainty included publishing a list of legislative instruments claiming a class exemption on the AGD website or on the FRL, or implementing a mechanism by which the Attorney-General could issue a conclusive certificate to the effect that a legislative instrument falls within a class exemption. The Committee considers that neither option would provide the requisite level of legal certainty.

A similar conclusive certificate regime was included in a previous version of the Legislation Act (then the Legislative Instruments Act 2003). Section 10 (since repealed and replaced) provided a power for the Attorney-General to certify whether an instrument was a legislative instrument. That provision was subsequently repealed by the Acts and Instruments (Framework Reform) Act 2015 on the following basis:

The section was enacted to provide certainty in relation to particular instruments, if needed. However, the Attorney-General’s decision would be judicially reviewable, which means that the certificate is unable to provide the certainty it purports to provide.32

The Committee’s view is that similar issues would apply to a proposed conclusive certificate power in relation to legislative instruments purported to be covered by a class exemption.

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.

32 Explanatory Memorandum, Acts and Instruments (Framework Reform) Bill 2014 (Cth) 30.

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10. Breadth of the sunsetting regime

10.1 Primary legislation

The Committee considered the appropriate breadth of the sunsetting regime in terms of its scope of application. In full consideration of this aspect of the Terms of Reference, the Committee has given consideration to whether the scope of the sunsetting framework should be extended to primary legislation. The Committee is firmly of the view that it would be inappropriate to impose any form of a sunsetting regime on primary legislation; any regulatory benefits arising from regular review would be significantly outweighed by the considerable burden this would impose on parliamentary processes and legislative drafting workloads. The Committee also notes that there would be considerable compliance costs associated with the transitional requirements of re-enacted legislation.

The Committee considers that it should be a matter for the responsible ministers and agencies to determine whether it would be appropriate to implement statutory review provisions in primary legislation, rather than subjecting them to automatic sunsetting.

39. The Committee recommends that the sunsetting framework should not be extended to primary legislation.

10.2 Notifiable instruments

Submissions provided mixed responses on whether notifiable instruments should be subject to sunsetting, or alternatively, a modified automatic repeal or bulk repeal process.

The objective of the sunsetting framework is to encourage periodic reviews of legislation to ensure that it remains fit-for-purpose and relevant, and appropriately reflects modern drafting practices. This is particularly important for older legislative instruments, which were made prior to the disciplines imposed by modern administrative law principles on the way rules are drafted33 and are therefore more likely to contain provisions that are now considered inappropriate for delegated legislation.

Notifiable instruments, by nature, do not determine the content of the law in any way, and do not affect privileges, interests, obligations or rights. Many notifiable instruments are replacements for instruments that were previously published in the Commonwealth Gazette. As such, the Committee sees no compelling argument for requiring regular review of notifiable instruments and considers that extending the sunsetting framework to notifiable instruments is unnecessary.

The notifiable instruments regime is relatively new (having been established in 2016 following commencement of the Acts and Instruments (Framework Reform) Act 2015), and few notifiable instruments are registered on the FRL. In addition, notifiable instruments are already subject to the automatic repeal and bulk repeal processes set out in Part 3 of Chapter 3 of the Legislation Act. The Committee considers that there are benefits in the same process applying to both legislative and notifiable instruments and that no additional power to amend or repeal notifiable instruments is required.

33 Administrative Review Council, Rule making by Commonwealth Agencies, Report No. 35 (1992) 56.

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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.

A number of submissions noted that the FRL is a permanent and authoritative repository of both historical information and current information. As such, no instrument is ever entirely removed from the FRL; rather, repealed instruments are simply moved to the ‘No longer in force’ category on the FRL. The accumulation of spent, redundant or superseded notifiable instruments is an accepted and necessary function of the FRL.

42. The Committee recommends no change to the operation of the FRL as it relates to notifiable instruments.

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11. The Federal Register of LegislationSubmissions generally provided positive feedback on the operation and utility of the FRL.

The Committee is aware that OPC is currently in the process of redeveloping the FRL and, as part of that process, will seek input from agencies on a range of user-related design considerations.

43. The Committee recommends that agencies continue to liaise with OPC on suggestions for improvements to the FRL.

The Committee received a number of suggestions for additional functions to be added to the FRL. The publishing area of OPC has provided the following advice in response to those suggestions, as set out in the table below.

AGENCY SUGGESTION OFFICE OF PARLIAMENTARY COUNSEL ADVICEAllow the option to view legislative instruments in order of sunsetting date.

The Sunsetting Instruments Report, which can be downloaded by registered users from the lodgement page, can be exported to Excel and sorted by sunsetting date.

Personalised alert systems for agencies in relation to their sunsetting legislative instruments, including allowing agencies and key stakeholders to track the progress of thematic reviews.

This suggestion will be considered as part of the redevelopment of the FRL.

Provide proactive updates of changes to portfolio owners of legislative instruments arising from Machinery of Government changes.

Machinery of Government changes are applied to the FRL by staff proactively and generally without consultation with an affected agency unless confirmation on problematic matters requires it.

Capability to run reports by portfolio on legislative instruments which have a sunsetting exemption applied to them from the time of registration.

This suggestion will be considered as part of the redevelopment of the FRL.

Allow information provided on the FRL to be more easily searchable by rule-maker.

The names of rule-makers have not been captured as metadata in the system. To enable this specific type of search, a cost-benefit analysis would need to be undertaken concerning the capturing and inputting of this metadata. This suggestion will be considered as part of the redevelopment of the FRL.The current advanced search function on the public website allows searching the full text of documents and would return a rule-maker’s name.

Enable users to download search data in Excel format.

This suggestion will be considered as part of the redevelopment of the FRL.

Consider whether provisions that have been automatically repealed should be incorporated in the text of endnotes in compilations, or whether the table in the ‘Legislation History’ endnote is sufficient.

If a provision is removed from the text of legislation, it is annotated in the amendment history.

The usefulness of endnotes in compilations would be greatly enhanced if FRL numbers and the Year/Act number were hyperlinked.

This suggestion has been noted and will be considered in future.

Specify the sunsetting date in the details section of each legislative instrument’s entry on the FRL, in the same place where the registration and start date are currently listed.

That information is currently available in the details section under the expandable link titled ‘Sunset information’.

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Sunsetting information should appear in the FRL entry of a legislative instrument’s most recent compilation in addition to the entry for the principal legislative instrument.

At present, sunsetting information appears on the series page as well as the entry for the principal legislative instrument. This suggestion will be considered as part of the redevelopment of the FRL.

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12. Division 1 of Part 3 of Chapter 3 (Automatic repeal)The automatic repeal provisions of the Legislation Act state that a legislative or notifiable instrument that only repeals or amends another legislative or notifiable instrument, or provides for its commencement, is itself automatically repealed after it has achieved this effect. This means that an amending or repealing instrument may be automatically repealed before the disallowance period for that instrument has concluded.

12.1 Timing of automatic repeal

Agencies agreed that the interaction of the automatic repeal provisions with the disallowance provisions has been the subject of some confusion. Suggestions for addressing this included increasing the period of time before the automatic repeal comes into effect, and amending the information provided on the FRL to clarify that automatically repealed instruments may still be subject to disallowance.

The Committee is of the view that it creates unnecessary confusion when members or senators are considering possible disallowance of such an instrument, as it may seem counter-intuitive that an automatically repealed instrument can still be disallowed.

In its submission to the Committee, OPC suggested that:

the timing of the automatic repeal of a disallowable legislative instrument be the start of the day after the later of the following events, unless the instrument has been repealed earlier under subsection 38(3) or 42(1) or (2):

(a) end of the period during which the instrument or a provision of the instrument may be disallowed in either House of the Parliament;

(b) whichever of the following is applicable:(i) the commencement of the instrument or of the last of the instrument’s

provisions to commence;(ii) if the last of the instrument's provisions that have not commenced are

repealed, or cannot commence because of the occurrence of an event – the repeal of those provisions or the occurrence of that event.34

The Committee agrees with this suggestion.

44. The Committee recommends amending Division 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.

12.2 Meaning of ‘sitting day’

Some agencies commented on the uncertainty around the meaning of the term ‘sitting day’ as it applies to the disallowance provisions in the Legislation Act. Difficulties in calculating sitting days have arisen in circumstances where a House has suspended (rather than adjourned) a sitting on a day and resumed the

34 Office of Parliamentary Counsel, Submission to the Sunsetting Review Committee, Review of the Sunsetting Framework under the Legislation Act 2003, 27 June 2017, 12 [98].

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following calendar day (when it is not a scheduled sitting day). The Committee notes that each House of Parliament appears to have a different approach to this.

The House of Representatives appears to treat the two calendar days as a single sitting day:

A sitting may extend beyond a calendar day but constitute only one sitting day. Similarly, a sitting which is suspended and resumed on a later day constitutes only one sitting day.35

The Senate, however, seems to prefer to treat the two calendar days as two separate sitting days:

Where one sitting extends over two or more full days, without the intervention of an adjournment, but by the process of suspension of the sitting, the view taken is that, while it may be argued that there has been only one sitting day, it should for safety be assumed that each of those days is a sitting day.36

The Committee’s view is that, given the differing approaches to this issue and the potential consequences,37 it is desirable to put the matter beyond doubt by explicitly defining the term ‘sitting day’ in either the Legislation Act or the Acts Interpretation Act. The Committee considers that the form of any proposed amendment should be discussed with the Clerks of the Senate and the House of Representatives.

45. The Committee recommends that the Legislation Act and/or the Acts Interpretation Act be amended to define the term ‘sitting day’.

35 B C Wright and P E Fowler (eds), House of Representatives Practice (Department of the House of Representatives, 6th edition, 2012) 415.36 Rosemary Laing and Harry Evans (eds), Odgers’ Australian Senate Practice (Department of the Senate, 14th edition, 2016) 447.37 For example, if an instrument was incorrectly taken to have been successfully disallowed, but the disallowance period for either giving notice of the motion (subsections 42(1) and 42(3) of the Legislation Act) or acting on that motion (subsection 42(2)), had in fact ended.

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Appendix A: Terms of ReferenceThe 2017 Review of Sunsetting (the 2017 Review) is to consider and report on all aspects of the operation of the sunsetting framework set out in Part 4 of Chapter 3 of the Legislation Act 2003, including:

the extent to which the purpose of the sunsetting framework, as specified in section 49, has been realised

factors, if any, that have limited the achievement of this purpose the extent to which the purpose of the sunsetting framework is still appropriate, and how performance against this purpose might be improved.

The 2017 Review should assess the implementation and continuing relevance of recommendations 37, 38, 39 and 40 of the report of the 2008 Review of the Legislative Instruments Act 2003. This assessment should include consideration of:

whether current practices satisfy recommendation 37, that the Attorney-General remind responsible ministers:

of the principle that legislative instruments remain in force for only as long as they are needed

that all legislative instruments be subject to ongoing review and culling, and of the need to put timely arrangements in place to manage the commencement and

ongoing operation of the sunsetting provisions whether agencies are taking sufficient and appropriate action to satisfy recommendation 38, that

they should cull spent legislative instruments as soon as practicable and identify instruments that will need to be continued beyond their sunsetting date

whether the present sunsetting period of 10 years remains appropriate and should be maintained (as foreshadowed in recommendation 39)

whether legislative instruments that are exempt from sunsetting are being periodically reviewed as proposed by recommendation 40.

The review should consider the effectiveness of the implementation of recommendations 4.1 and 4.2 of the Productivity Commission’s 2011 report Identifying and Evaluating Regulation Reforms, which sought to stagger the sunsetting of pre-2005 instruments, enable the packaging of related regulations for review, and establish clear and transparent processes for implementation of the sunsetting regime. In particular, the review should consider the implementation of those recommendations by the Legislative Instruments Amendment (Sunsetting Measures) Act 2012 and other policy and procedural developments and guides.

Having regard to the first two years of the practical operation of the sunsetting framework, the Committee should give particular consideration to:

the operation of Division 1 (Automatic repeal) of Part 3 of Chapter 3 of the Legislation Act, in particular the timing of the automatic repeal of provisions under that Division

the extent of the Attorney-General’s discretion to defer the sunsetting day of an instrument under section 51(1)(c) of the Legislation Act

the purpose of section 53 of the Legislation Act (Parliament may resolve that an instrument should continue in force for another 10-year period) and the extent to which that provision is still appropriate

the scope of the existing exemptions from sunsetting provided for under section 54(1) of the Legislation Act and sections 11 and 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Exemptions Regulation)

whether additional exemptions should be provided for under section 54(1) of the Legislation Act and sections 11 and 12 of the Exemptions Regulation, and

the appropriate breadth of the sunsetting regime in terms of its scope of application.

The Sunsetting Review Committee will report by 1 October 2017.

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Appendix B: Submissions received by the Committee1. Attorney-General’s Department – Family Law Branch 2. AUSTRAC3. Australian Communications and Media Authority (confidential)4. Australian Research Council 5. Australian Securities and Investments Commission 6. Civil Aviation Safety Authority 7. Department of Agriculture and Water Resources 8. Department of Communications and the Arts 9. Department of Defence 10. Department of Education and Training11. Department of the Environment and Energy 12. Department of Finance 13. Department of Immigration and Border Protection 14. Department of Infrastructure and Regional Development15. Department of the Prime Minister and Cabinet (confidential)16. Department of Social Services 17. Department of the House of Representatives 18. Department of Veterans' Affairs 19. High Court of Australia, Federal Court of Australia, Family Court of Australia, and Federal Circuit

Court of Australia (joint submission) 20. National Health and Medical Research Council 21. Office of Parliamentary Counsel 22. Repatriation Medical Authority23. Reserve Bank of Australia 24. Standing Committee for the Scrutiny of Bills, Standing Committee on Regulations and Ordinances,

and Parliamentary Joint Committee on Human Rights (joint submission)25. The Treasury

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Appendix C1: Sunsetting provisions of the Legislation Act

Chapter 3—Legislative instruments and notifiable instruments

Part 4—Sunsetting of legislative instruments

48F Simplified outline of this Part

Legislative instruments are automatically repealed after a fixed period of time (subject to some exceptions). The automatic repeal is called sunsetting.

Generally, legislative instruments sunset on the first 1 April or 1 October on or after the tenth anniversary of their registration. The Attorney-General may (by legislative instrument) defer sunsetting in some circumstances.

The Attorney-General must arrange for the tabling in each House of Parliament of a list of legislative instruments that are due for sunsetting on the same day. The Office of Parliamentary Counsel must then arrange for each rule-maker to be given a copy of the list.

Either House of Parliament may resolve to continue in force a legislative instrument that would otherwise sunset.

A legislative instrument does not sunset if this Act or a regulation under this Act, or another Act, provides or has the effect that this Part does not apply to the instrument.

49 The purpose of the Part

The purpose of this Part is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed.Note: Section 54 provides that certain instruments are exempted from the operation of this Part.

50 Sunsetting

(1) This subsection repeals a legislative instrument on the first 1 April or 1 October falling on or after the tenth anniversary of registration of the instrument, unless the instrument was registered on 1 January 2005.

(2) This subsection repeals a legislative instrument on the day worked out using the table if the instrument was registered on 1 January 2005.

Day of repeal of legislative instrument registered on 1 January 2005Year the instrument was made Day of repeal

1 A year before 1930 1 April 20152 A year in the decade starting on 1 January 1930 1 October 20153 A year in the decade starting on 1 January 1940 1 April 2016

Legislation Act 2003

Compilation No. 35 Compilation date: 22 June 2017 Registered: 29 June 2017

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Day of repeal of legislative instrument registered on 1 January 2005Year the instrument was made Day of repeal

4 A year in the decade starting on 1 January 1950 1 October 20165 A year in the decade starting on 1 January 1960 1 April 20176 A year in the decade starting on 1 January 1970 1 October 20177 A year in the decade starting on 1 January 1980 1 April 20188 1990, 1991, 1992, 1993 or 1994 1 October 20189 1995, 1996, 1997, 1998 or 1999 1 April 201910 2000, 2001 or 2002 1 October 201911 2003 or 2004 1 April 2020

Relationship with other provisions

(3) This section has effect subject to Part 3 (repeal of spent legislative instruments, notifiable instruments and provisions) and sections 51, 51A, 53 and 54.Note: A legislative instrument may be repealed under Part 3 before it could be repealed by this section. Section 51 or

51A may repeal a legislative instrument at a time different from the time when it would be repealed by this section. Sections 53 and 54 may prevent a legislative instrument from being repealed by this section.

51 Attorney-General may defer sunsetting in certain circumstances

(1) If:(a) a legislative instrument would (apart from this section) be repealed by section 50 or 51A on a

particular day (the sunsetting day); and(b) the Attorney-General is satisfied, on written application by the rule-maker:

(i) that the instrument would (apart from the operation of this Part) be likely to cease to be in force within 12 months after the sunsetting day; or

(ii) that an instrument proposed to be made in substitution for the instrument will not be able to be completed before the sunsetting day for reasons that the rule-maker could not have foreseen and avoided or because the dissolution or expiration of the House of Representatives or the prorogation of the Parliament renders it inappropriate to make a replacement instrument before a new government is formed;

then:(c) the Attorney-General may issue a certificate providing that the first-mentioned instrument is

taken to cease to be in force under this section on whichever of the 1 April and 1 October next following the sunsetting day the Attorney-General specifies as the more appropriate; and

(d) if the Attorney-General issues the certificate, the first-mentioned instrument is repealed by this section on the specified day instead of the sunsetting day, unless the instrument has been repealed earlier.

(2) If the Attorney-General issues a certificate under paragraph (1)(c), he or she must:(a) include in the certificate a statement of the reasons for the issue of a certificate; and(b) cause a copy of the certificate to be laid before each House of the Parliament not later than 6

sitting days of that House after the issue of the certificate.

(3) A certificate issued under paragraph (1)(c) is a legislative instrument.

51A Attorney-General may align sunsetting of instruments to be reviewed together

(1) The Attorney-General may by legislative instrument (the sunset-altering instrument) declare that 2 or more other legislative instruments (the instruments to be reviewed) are repealed by this section

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on a single specified day, if he or she is satisfied, on application by the rule-maker of the instruments to be reviewed, that:

(a) all the instruments to be reviewed:(i) would, apart from this section, be repealed by section 50 or 51; and

(ii) are or will be the subject of a single review; and(b) the making of the declaration will facilitate the undertaking of the review and the

implementation of its findings.

(2) The day specified in the sunset-altering instrument:(a) must be 1 April or 1 October of a year; and(b) must be not more than 5 years after the earliest day on which any of the instruments to be

reviewed would be repealed by section 50 or 51 apart from this section; and(c) may be the same as, or different from, any of the days on which any of the instruments to be

reviewed would be repealed by section 50 or 51 apart from this section.

(3) The sunset-altering instrument has effect according to its terms (subject to Part 2 (parliamentary scrutiny of legislative instruments), and to section 53 operating on the instruments to be reviewed).

52 Attorney-General must lay lists of instruments due for sunsetting before each House of the Parliament

(1) In this section:

list tabling day, in relation to a sunsetting day and to a House of the Parliament, means the first sitting day of that House occurring within 18 months before that sunsetting day.

sunsetting day means the first possible day on which any legislative instrument will be repealed by this Partand each 1 April and 1 October occurring after that day.

(2) The Attorney-General must arrange for the laying before each House of the Parliament, on each list tabling day in relation to that House, of a list of legislative instruments that will be repealed by section 50, 51 or 51A on the sunsetting day to which that list tabling day relates.

(3) As soon as practicable after the laying before either House of the Parliament of a list in accordance with subsection (2), the Office of Parliamentary Counsel must arrange for a copy of that list to be provided to the rule-maker responsible for each legislative instrument appearing on the list.

(4) If subsection (2) requires the Attorney-General to arrange for the laying of a list of the kind referred to in that subsection before the Houses of the Parliament on different days, subsection (3) need only be complied with in relation to the earlier of those days.

53 Resolution that instrument continue in force

(1) A legislative instrument that would otherwise be repealed on a day by section 50, 51 or 51A continues in force, despite those sections, if:

(a) the instrument is mentioned in:(i) a copy of a certificate laid before a House of the Parliament under section 51; or

(ii) a list laid before a House of the Parliament under section 52; and(b) the House indicates, by resolution passed within 6 months after the copy or list is laid before

the House, that the instrument should continue in force.

(2) The legislative instrument continues in force, subject to:

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(a) sections 50, 51 and 51A, which apply to it after the passage of the resolution as if it were registered on the day on which it would have been repealed by section 50, 51 or 51A apart from this section; and

(b) any later instrument amending or repealing it.Note: The legislative instrument is not required to be tabled again, and is not liable to disallowance again.

54 Instruments to which this Part does not apply

(1) This Part does not apply in relation to a legislative instrument if the enabling legislation for the instrument (not being the Corporations Act 2001):

(a) facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States; and

(b) authorises the instrument to be made by the body or for the purposes of the body or scheme.

(2) This Part does not apply in relation to a legislative instrument if:(a) an Act provides, or has the effect, that this Part does not apply in relation to the instrument; or(b) the legislative instrument is prescribed by regulation for the purposes of this paragraph; or(c) the legislative instrument is a regulation made for the purposes of:

(i) paragraph 8(6)(b) (which covers instruments that are not legislative instruments); or(ii) paragraph 10(1)(c) (which covers instruments that are legislative instruments); or

(iii) paragraph 11(2)(b) (which covers instruments that are notifiable instruments); or(iv) paragraph 44(2)(b) (which covers instruments that are not subject to disallowance); or(v) paragraph (b) of this subsection.

(3) Prescribing a kind of instrument by regulation for the purposes of paragraph (2)(b) does not imply that every instrument of that kind is a legislative instrument.

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Appendix C2: Sunsetting provisions of the LEOMR

Part 5—Legislative instruments that are not subject to sunsetting

11 Classes of legislative instruments that are not subject to sunsetting

For paragraph 54(2)(b) of the Act, Part 4 of Chapter 3 of the Act (sunsetting of legislative instruments) does not apply to a legislative instrument in a class of legislative instruments referred to in an item of the following table.Note: The inclusion of a kind of instrument in the table does not imply that every instrument of that kind is a

legislative instrument (see subsection 54(3) of the Act).

Classes of legislative instruments that are not subject to sunsettingItem Legislative instrument

1 An instrument the sole purpose of which, or a primary purpose of which, is to give effect to an international obligation of Australia

2 An instrument that establishes a body having power to enter into contracts for the purposes of the body’s functions

3 An instrument that is a direction by a Minister to any person or body4 An instrument the sole purpose of which, or a primary purpose of which, is to confer power on a

self-governing Territory5 An Ordinance made under a power delegated by the Parliament in an Act providing for the government of

a non-self-governing Territory6 An instrument (other than a regulation) relating to superannuation7 An instrument made under an annual Appropriation Act

12 Particular legislative instruments that are not subject to sunsetting

For paragraph 54(2)(b) of the Act, Part 4 of Chapter 3 of the Act (sunsetting of legislative instruments) does not apply to a legislative instrument referred to in the following table.Note: The inclusion of a kind of instrument in the table does not imply that every instrument of that kind is a

legislative instrument (see subsection 54(3) of the Act).

Particular legislative instruments that are not subject to sunsettingItem Legislative instrument

1 A substituted reference order made under section 19B of the Acts Interpretation Act 19012 An instrument made under section 8 or 9 of the Aboriginal Land Grant (Jervis Bay Territory) Act 19863 A regulation made under the Aboriginal Land Rights (Northern Territory) Act 19764 Each of the following:

(a) an instrument relating to aviation safety made under the Air Services Act 1995;(b) an instrument made under a regulation made under that Act

5 Each of the following:(a) a statement made under subsection 8(1) of the Airspace Act 2007;(b) a regulation made under that Act;(c) an instrument relating to aviation safety made under a regulation made under that Act

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Particular legislative instruments that are not subject to sunsettingItem Legislative instrument6 A rule made under section 229 of the Anti-Money Laundering and Counter-Terrorism Financing Act 20067 A national capital plan made under the Australian Capital Territory (Planning and Land Management) Act

19888 A determination specifying drugs, made under section 4A of the Australian Federal Police Act 19798A A regulation made under the Australian National Registry of Emissions Units Act 20119 Each of the following:

(a) a statute made under the Australian National University Act 1991;(b) a rule or order made under such a statute

9A Each of the following:(a) an instrument made under the Australian Participants in British Nuclear Tests and British

Commonwealth Occupation Force (Treatment) Act 2006;(b) a regulation made under that Act

9B A regulation made under the Australian Securities and Investments Commission Act 200110 A statement made under subsection 34C(1) of the Australian Security Intelligence Organisation Act 197910A A regulation made under the Australian War Memorial Act 198011 A regulation made under the Aviation Transport Security Act 200412 Each of the following:

(a) an instrument made under subsection 5(8) of the Banking Act 1959;(b) an instrument made under section 16AD of that Act;(c) an instrument made under section 70C of that Act

13 An instrument made under section 26 of the Broadcasting Services Act 199213A Each of the following:

(a) a rule made under section 26 of the Business Names Registration Act 2011;(b) a determination made under section 27 or 28 of that Act;(c) a regulation made under that Act

14 A determination made under subsection 70A(4) of the Cheques Act 198615 An instrument relating to aviation safety made under the Civil Aviation Act 1988, the Civil Aviation

Regulations 1988 or the Civil Aviation Safety Regulations 199816 Each of the following:

(a) an instrument made under section 104 or 105 of Schedule 2 to the Competition and Consumer Act 2010 (including a prescribed consumer product safety standard made under section 65C of the Trade Practices Act 1974 that was in force immediately before the commencement of item 4 of Schedule 7 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010);

(b) an instrument made under section 114 of Schedule 2 to the Competition and Consumer Act 2010 (including a notice given under subsection 65C(7) of the Trade Practices Act 1974 that was in force immediately before the commencement of item 3 of Schedule 7 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010);

(c) an instrument made under section 134 or 135 of Schedule 2 to the Competition and Consumer Act 2010 (including a prescribed consumer product information standard made under section 65D of the Trade Practices Act 1974 that was in force immediately before the commencement of item 5 of Schedule 7 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010);

(d) the Australian Competition and Consumer Commission (Allowances) Regulations;(e) the Competition and Consumer Regulations 2010;(f) the Trade Practices (Removal of Exceptions) Regulations

17 A Proclamation made under section 3A or 3B of the Control of Naval Waters Act 1918

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Particular legislative instruments that are not subject to sunsettingItem Legislative instrument18 Each of the following:

(a) a standard made under section 334 or 336 of the Corporations Act 2001;(b) a rule made under section 798G of that Act;(c) an instrument made under section 827D of that Act;(d) the Corporations Regulations 2001

18A A regulation made under the Corporations (Fees) Act 200118B A regulation made under the Corporations (Review Fees) Act 200319 A regulation made under the Cross-Border Insolvency Act 200820 Each of the following:

(a) a determination made solely for the purposes of either or both of sections 13 and 13A of the Currency Act 1965;

(b) a regulation made under that Act21 Each of the following:

(a) a regulation made solely for the purposes of section 50 or 112 of the Customs Act 1901;(b) a determination made under paragraph 153L(1)(c), 153P(2)(c) or 153Q(1)(c) or subsection 153ZIH(2)

of that Act;(c) a tariff concession order made under Part XVA of that Act

22 A determination made under subsection 6(4) of the Defence Housing Australia Act 198722A A regulation made under the Defence Service Homes Act 191822B A regulation made under the Designs Act 200323 A disability standard made under section 31 of the Disability Discrimination Act 199224 An instrument made under section 178, 181, 183, 207A, 248, 270B, 303CA, 303DB, 303EB, 303FG,

324G, 341G, 344 or 517 of the Environment Protection and Biodiversity Conservation Act 199925 Each of the following made under section 165 of the Excise Act 1901:

(a) Excise By-law No. 75;(b) Excise By-law No. 114;(c) Excise By-law No. 127;(d) Excise By-law No. 129;(e) Excise By-law No. 151;(f) Excise By-law No. 154

26 A regulation made under the Extradition Act 198827 An instrument made under subsection 14(4) of the Fair Work Act 200928 A Proclamation made under any of the following provisions of the Family Law Act 1975:

(a) subsection 39(7);(b) subsection 39(7A);(c) subsection 40(3);(d) subsection 41(2);(e) subsection 60E(6) as in force before its repeal by the Family Law Reform Act 1995 (see

subsection 69ZF(3) of the Family Law Act 1975);(f) subsection 69J(3);(g) subsection 69J(6);(h) subsection 69ZF(1);(i) subsection 96(3)

29 A plan of management made under section 17 of the Fisheries Management Act 1991

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Particular legislative instruments that are not subject to sunsettingItem Legislative instrument30 Each of the following:

(a) a Proclamation made under section 5 of the Flags Act 1953;(b) a warrant made under section 6 of that Act;(c) a rule made under section 7 of that Act

31 A regulation made under the Foreign Acquisitions and Takeovers Act 197531A Each of the following:

(a) an instrument made under subsection 21(1) of the Gene Technology Act 2000;(b) a determination made under subsection 78(1) of that Act

32 Each of the following:(a) a Proclamation made under section 31 of the Great Barrier Reef Marine Park Act 1975;(b) a zoning plan prepared in accordance with Division 2 of Part V of that Act;(c) a plan of management prepared in accordance with Part VB of that Act

33 Each of the following:(a) an approval given under subsection 16-25(1) of the Higher Education Support Act 2003;(b) an approval given under subclause 6(1) or (1A) of Schedule 1A to that Act

34 Each of the following:(a) an instrument made under section 62ZZC of the Insurance Act 1973;(b) an instrument made under section 131A of that Act

34A A regulation made under item 84 of Schedule 4 to the Intellectual Property Laws Amendment Act 201535 A regulation made under the International Transfer of Prisoners Act 199736 A regulation made under the Judges’ Pensions Act 196837 An instrument made under section 251A of the Life Insurance Act 199538 A regulation made under the Maritime Transport and Offshore Facilities Security Act 200338A The Migration Regulations 199439 A determination made under section 6 or 8 of the Military Rehabilitation and Compensation Act 200440 An instrument made under section 7 or 9 of the Motor Vehicle Standards Act 198941 A regulation made under the Mutual Assistance in Business Regulation Act 199241A A regulation made under the Mutual Assistance in Criminal Matters Act 198742 A declaration made under section 32 of the Mutual Recognition Act 199242AA A regulation made under the National Consumer Credit Protection Act 200942AB A regulation made under the National Consumer Credit Protection (Fees) Act 200942A Each of the following:

(a) a determination made under section 10 or 75 of the National Greenhouse and Energy Reporting Act 2007;

(b) a rule made under section 22XS of that Act;(c) a regulation made under that Act;(d) an instrument made under a regulation made under that Act

43 Each of the following:(a) a determination of the National Land Transport Network made under subsection 5(1) of the National

Land Transport Act 2014;(b) an instrument determining conditions made under section 27, 44, 86 or 90 of that Act

44 A regulation made solely for the purposes of section 7 of the National Transport Commission Act 200344A Each of the following:

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Particular legislative instruments that are not subject to sunsettingItem Legislative instrument

(a) a determination made under subsection 54(1) or 232(1) of the National Vocational Education and Training Regulator Act 2011;

(b) an instrument made under paragraph 157(1)(p) of that Act;(c) a direction made under subsection 160(1) or 181(1) of that Act;(d) an instrument made under subsection 185(1), 186(1), 187(1), 188(1) or 189(1) of that Act

45 Each of the following:(a) a determination made under paragraph 26(3)(b) of the Native Title Act 1993 as in force immediately

before 30 September 1998;(b) an instrument made under subparagraph 26(1)(c)(iv), subsection 26A(1), 26B(1) or 26C(2),

paragraph 43(1)(b) or 43A(1)(b), subsection 207A(1), 207B(3), 245(4) or 251C(4) or (5), or paragraph (i) of the definition of infrastructure facility in section 253, of that Act;

(c) a regulation made solely for the purposes of Division 6 or 7 of Part 2 of that Act45AA A regulation made under the Olympic Insignia Protection Act 198745A A regulation made under the Papua New Guinea (Members of the Forces Benefits) Act 195746 A regulation made under the Papua New Guinea (Staffing Assistance) Act 197347 A regulation made under the Parliamentary Contributory Superannuation Act 194848 Each of the following:

(a) a direction made under section 20 of the Parliamentary Service Act 1999;(b) an instrument made under section 23 or subsection 24(3) of that Act

48A A regulation made under the Patents Act 199049 Each of the following:

(a) a regulation made under the Payment Systems and Netting Act 1998;(b) an approval given under section 9 of that Act

50 Each of the following:(a) a declaration made under subsection 9(3) of the Payment Systems (Regulation) Act 1998;(b) an instrument made under Subdivision A of Division 3 of Part 3 of that Act;(c) an instrument made under section 18 of that Act;(d) an instrument made under section 25 of that Act;(e) a regulation made under that Act

50A A regulation made under the Plant Breeder’s Rights Act 199451 A regulation made under section 23 of the Protection of the Sea (Powers of Intervention) Act 198152 Each of the following:

(a) a regulation made under subsection 33(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983;

(b) an order made under subsection 34(1) of that Act53 A regulation made under the Protection of Word “Anzac” Act 192054 Each of the following:

(a) a direction issued under section 21 of the Public Service Act 1999;(b) an instrument made under section 23 or subsection 24(3) of that Act

55 Each of the following:(a) a notice given under section 36 of the Radiocommunications Act 1992;(aa) an instrument prepared under subsection 44A(1), or a variation under subsection 44A(6), of that Act;(b) a declaration made under section 153B of that Act

56 An instrument required to be laid before the Parliament under subsection 7(7) of the Remuneration

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Particular legislative instruments that are not subject to sunsettingItem Legislative instrument

Tribunal Act 197356A A regulation made under the Renewable Energy (Electricity) Act 200057 Each of the following:

(a) a declaration made under subparagraph (c)(iii) of the definition of Commonwealth authority in subsection 4(1) of the Safety, Rehabilitation and Compensation Act 1988;

(b) a declaration made under section 4A of that Act;(c) an instrument made under subsection 5(6) of that Act;(d) a declaration made under subparagraph 6(1)(h)(ii), or (i)(ii), of that Act;(e) a declaration made under section 100 of that Act

57A A Proclamation made under section 7, 8, 10B, 12 or 13B of the Seas and Submerged Lands Act 197358 A regulation made under the Superannuation Act 192259 A regulation made under the Superannuation Act 1976 (other than a regulation made solely for the

purposes of section 153AN or subsection 160(1) of that Act)60 A regulation made under the Superannuation (Productivity Benefit) Act 198861 Each of the following:

(a) a code made under subclause 37(1) of Schedule 1 to the Telecommunications Act 1997;(b) a declaration made under subclause 4(1) of Schedule 3A to that Act

62 A declaration made under subsection 6N(2) or section 34 of the Telecommunications (Interception and Access) Act 1979

63 Each of the following:(a) a declaration made under section 6 of the Terrorism Insurance Act 2003;(b) a regulation made under that Act

63A A regulation made under the Trade Marks Act 199564 A declaration made under section 31 of the Trans-Tasman Mutual Recognition Act 199765 Each of the following:

(a) a determination made for the purposes of the definition of non-warlike service or warlike service in subsection 5C(1) of the Veterans’ Entitlements Act 1986;

(b) an instrument made under section 29, 69B, 105 or 117 of that Act;(c) a determination made for the purposes of the definition of hazardous service in subsection 120(7) of

that Act;(d) a regulation made under that Act

66 A regulation made under the War Graves Act 198067 Each of the following:

(a) a Basin Plan adopted under section 44 of the Water Act 2007;(b) an amendment of a Basin Plan adopted under section 23B or 48 of that Act;(c) an amendment of a Basin Plan made under a regulation made under that Act;(d) a decision to accredit a water resource plan under section 63 of that Act;(e) a decision to accredit an amendment of a water resource plan under section 65 of that Act;(f) a rule made under section 92 or 97 of that Act;(g) a regulation made under that Act

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Appendix D: Automatic repeal provisions of the Legislation Act

Chapter 3—Legislative instruments and notifiable instruments

Part 3—Repeal of spent legislative instruments, notifiable instruments and provisions

Division 1A—Simplified outline of this Part

48AA Simplified outline of this Part

A legislative instrument or notifiable instrument (or provision) that only repeals or amends another instrument, or provides for its commencement, is itself automatically repealed after it has achieved this effect.

Regulations made under this Act may repeal a legislative instrument or notifiable instrument (or provision) if the Attorney-General is satisfied that the instrument (or provision) to be repealed is spent or is no longer required.

Division 1—Automatic repeal

Subdivision A—Repeal of amending and repealing instruments

48A Automatic repeal of amending and repealing instruments

(1) This section repeals a legislative instrument or notifiable instrument whose only legal effect is to amend or repeal one or more other legislative instruments or notifiable instruments, without making any application, saving or transitional provisions relating to the amendment or repeal.

(1A) For the purposes of subsection (1), a legislative instrument or notifiable instrument is not taken to make an application, saving or transitional provision mentioned in that subsection merely because the instrument amends another such instrument to make an application, saving or transitional provision relating to the amendment or repeal.

Time of repeal

(2) The repeal of the instrument by this section happens on the day after the later of the following events occurs:

(a) whichever of the following is applicable:(i) the commencement of the instrument, or of the last of its provisions to commence;

(ii) if the last of its provisions that have not commenced are repealed, or cannot commence because of the occurrence of an event—that repeal, or the occurrence of that event;

(b) the registration of the instrument.

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Effect of repeal

(3) The repeal of the instrument by this section does not affect any amendment or repeal made by the instrument. This does not limit the effect of section 7 of the Acts Interpretation Act 1901 as it applies in relation to the repeal of the instrument by this section because of section 13 of this Act.

(4) The repeal of the instrument by this section does not prevent section 38 or 42 from applying to the instrument after the repeal. That application does not delay the repeal of the instrument by this section.Note: See also subsection 45(2).

Subdivision B—Repeal of commencement instruments

48B Automatic repeal of commencement instruments

(1) This section repeals a commencement instrument that provides for the commencement of one of the following (a primary law) or a provision (a primary provision) of one of the following:

(a) an Act;(b) a legislative instrument or notifiable instrument.

Time of repeal

(2) The repeal of the commencement instrument by this section happens on the day after the later of the following events occurs:

(a) whichever of the following is applicable:(i) the commencement (or the last commencement) the commencement instrument provides

for;(ii) if the commencement instrument provides for the commencement of a primary law, and

the last of the provisions of the primary law that have not commenced are repealed—that repeal;

(iii) if the commencement instrument provides for the commencement of a primary law, and the primary law (or the last of the provisions of the primary law) cannot commence because of the occurrence of an event—the occurrence of that event;

(iv) if the commencement instrument provides for the commencement of a primary provision or primary provisions, and the primary provision (or the last of those primary provisions) is repealed, or cannot commence because of the occurrence of an event—that repeal, or the occurrence of that event;

(b) the registration of the commencement instrument.

Effect of repeal

(3) The repeal of the instrument by this section does not affect any commencement the instrument provides for. This does not limit the effect of section 7 of the Acts Interpretation Act 1901 as it applies in relation to the repeal of the instrument by this section because of section 13 of this Act.

Subdivision C—Repeal of amending or repealing provisions of instruments containing other matter

48C Automatic repeal of amending and repealing provisions

(1) This section repeals a provision of a legislative instrument or notifiable instrument if:(a) the instrument is not an instrument described in subsection 48A(1); and

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(b) the only legal effect of the provision (alone or in conjunction with other provisions of the instrument) is:

(i) to amend or repeal one or more other legislative instruments or notifiable instruments; or(ii) to amend the instrument containing the provision.

Time of repeal

(2) The repeal of the provision by this section happens immediately after the later of the following events occurs:

(a) whichever of the following is applicable:(i) the commencement of the provision;

(ii) if the provision cannot commence because of the occurrence of an event—the occurrence of that event;

(b) the registration of the legislative instrument or notifiable instrument containing the provision.

Effect of repeal

(3) The repeal of the provision by this section does not affect any amendment or repeal made by the provision. This does not limit the effect of section 7 of the Acts Interpretation Act 1901 as it applies in relation to the repeal of the provision by this section because of section 13 of this Act.

(4) The repeal of the provision by this section does not prevent:(a) section 38 from applying after the repeal to the instrument containing the provision; or(b) section 42 from applying after the repeal to the provision or to the instrument containing the

provision.Neither of those applications delays the repeal of the provision by this section.

Repeal of associated provisions

(5) If subsection (1) repeals a provision of a legislative instrument or notifiable instrument, this section also repeals the following provisions:

(a) any other provision (for example, a Schedule) of the instrument that only identifies another instrument or provision that is amended or repealed;

(b) any other provision (for example, a Part heading) of the instrument that only identifies (or groups) provisions that are amended or repealed.

Note: See also subsection 45(2).

Subdivision D—Repeal of commencement provisions of instruments containing other matter

48D Automatic repeal of commencement provisions

(1) This section repeals a provision (a commencement provision) of a legislative instrument or notifiable instrument, other than a commencement instrument, if the commencement provision provides solely for the commencement of one of the following (a primary law) or a provision (a primary provision) of one of the following:

(a) the instrument;(b) an Act;(c) another instrument that is a legislative instrument or notifiable instrument.

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Time of repeal

(2) The repeal of the commencement provision by this section happens immediately after the later of the following events occurs:

(a) whichever of the following is applicable:(i) the commencement (or the last commencement) the commencement provision provides

for;(ii) if the commencement provision provides for the commencement of a primary law, and

the last of the provisions of the primary law that have not commenced are repealed—that repeal;

(iii) if the commencement provision provides for the commencement of a primary law, and the primary law (or the last of the provisions of the primary law) cannot commence because of the occurrence of an event—the occurrence of that event;

(iv) if the commencement provision provides for the commencement of a primary provision, and the primary provision is repealed, or cannot commence because of the occurrence of an event—that repeal, or the occurrence of that event;

(b) the registration of the legislative instrument or notifiable instrument containing the commencement provision.

Effect of repeal

(3) The repeal of the provision by this section does not affect any commencement the provision provides for. This does not limit the effect of section 7 of the Acts Interpretation Act 1901 as it applies in relation to the repeal of the provision by this section because of section 13 of this Act.

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Appendix E: Statistics on the repeal and sunsetting of legislative instrumentsThis report is based on data from the FRL at 15 May 2017.

The following statistics relate to the operation of Parts 3 and 4 of Chapter 3 of the Legislation Act, which provide for the repeal of legislative instruments through sunsetting and other means.

All legislative references are to the Legislation Act unless indicated otherwise. All statistics relate to the repeal of whole instruments (not provisions within an instrument).

Contents Bulk repeal under section 48E................................................................................................................................................................................................ 54

Automatic repeal under sections 48A or 48B..........................................................................................................................................................................54

Sunsetting lists under section 52............................................................................................................................................................................................ 57

Sunset date changes under section 51 (exceptional circumstances).......................................................................................................................................59

Sunset date changes under section 51A (thematic review)....................................................................................................................................................61

Exemptions from sunsetting................................................................................................................................................................................................... 62

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1. Bulk repeal under section 48E

In 2011, it became obvious that initial sunsetting lists were likely to be very large. There were over 40,000 legislative instruments classed as ‘current’ (not repealed) on the FRL at that time, and as many as 40% of these were thought to be spent or redundant. Section 48E was enacted to ‘clear the decks’ and commenced on 22 September 2012. It empowers the Governor-General to make regulations to repeal a legislative instrument or notifiable instrument in whole or in part. Bulk repeal regulations made under section 48E account for almost one half of all legislative instrument repeals since 2005.

Table 1: Bulk repeal regulations made under section 48E --- Instruments repealed ---Item Portfolio / theme Date of

making*Solely

commencing*Solely

amending or repealing

Amending or repealing

with other matter

Other e.g. principal instruments

TOTAL More information

1 Agriculture, Fisheries and Forestry 11 July 2013 5 785 44 115 949 F2013L014042 Attorney-General’s 28 Mar 2013 28 932 29 16 1,005 F2013L006043 Broadband, Communications and the Digital Economy 5 Aug 2013 6 533 7 202 748 F2013L015304 Civil Aviation 13 Mar 2014 2 431 50 2,844 3,327 F2014L002795 Customs and Border Protection 11 Jul 2013 5 1,221 40 895 2,161 F2013L014016 Defence (not including Veterans’ Affairs) 13 Mar 2014 1 898 200 4 1,103 F2014L002737 Education 13 Mar 2014 3 45 9 4 61 F2014L002768 Employment 13 Mar 2014 12 91 8 7 118 F2014L002719 Environment 13 Mar 2014 6 836 8 16 866 F2014L0027510 Finance 13 Mar 2014 13 647 21 487 1,168 F2014L0027811 Foreign Affairs and Trade 13 Mar 2014 4 148 2 2 156 F2014L0026612 Health 13 Mar 2014 17 1,098 33 44 1,192 F2014L0027713 Human Services 11 Jul 2013 1 48 3 1 53 F2013L0140214 Immigration and Border Protection 13 Mar 2014 15 106 130 19 270 F2014L0026715 Industry, Innovation, Climate Change, Science,

Research and Tertiary Education5 Aug 2013 11 207 41 23 282 F2013L01531

16 Infrastructure and Regional Development 13 Mar 2014 11 689 30 44 774 F2014L0026817 Prime Minister and Cabinet 5 Aug 2013 1 210 11 5 227 F2013L0152818 Resources, Energy and Tourism 11 July 2013 6 27 3 1 37 F2013L0140319 Social Services 13 Mar 2014 11 231 10 35 287 F2014L0026920 Treasury 5 Aug 2013 24 1,511 140 591 2,266 F2013L0153521 Veterans’ Affairs 13 Mar 2014 - 141 153 42 336 F2014L00270

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Table 1: Bulk repeal regulations made under section 48E --- Instruments repealed ---Item Portfolio / theme Date of

making*Solely

commencing*Solely

amending or repealing

Amending or repealing

with other matter

Other e.g. principal instruments

TOTAL More information

22 Omnibus repeal 2014 No. 1 13 Mar 2014 8 124 8 80 220 F2014L0027423 Omnibus repeal 2014 No. 2 16 Oct 2014 - 46 24 209 279 F2014L0135824 Omnibus repeal 2015 12 Mar 2015 - 26 2 132 160 F2015L00297

ALL PORTFOLIOS ALL DATES 190 11,031 1,006 5,818 18,045 n/a

* These instruments would be subject to automatic repeal if made today

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2. Automatic repeal under sections 48A or 48B

When sections 48A and 48B commenced on 22 September 2012, they provided for the automatic repeal of solely commencing, amending or repealing instruments made after that date. Their scope was later expanded to older instruments and to notifiable instruments on 5 March 2016. Automatic repeal applies to all registered instruments that serve no ongoing purpose, including instruments that are exempt from sunsetting. The automatic repeal provisions operate independently of the disallowance process.

Table 2: Effect of automatic repeal under sections 48A or 48B‘Ons’ --- ‘Offs’ ---

New instruments registered

Automatic repeal(s 48A or 48B)A

Bulk repeal(s 48E)B

Sunsetting (s 50)C

Another form of repeal

Total repeals

Before 2005 D 22,337 n/a n/a n/a 284 284

2005 3,353 n/a n/a - 449 449

2006 4,523 n/a n/a - 960 960

2007 4,642 n/a n/a - 1,241 1,241

2008 4,510 n/a n/a - 2,049 2,049

2009 4,368 n/a n/a - 1,945 1,945

2010 3,182 n/a n/a - 1,227 1,227

2011 2,784 n/a n/a - 970 970

2012 (year s 48A, 48B and 48E enacted) E 2,591 199 - 1 929 1,129

2013 2,198 852 7,722 - 1,355 9,929

2014 E 1,851 734 10,151 1 1,053 11,939

2015 2,139 782 157 130 1,186 2,255

2016 2,037 832 0 190 988 2,010

2017 (part year up to and including 15 May) 531 264 0 121 227 612

TOTAL INSTRUMENTS REPEALED 61,046 3,663 18,030 443 14,863 36,999

Notes to table above A. Automatic repeal data for 2015 includes seven pre-2012 legislative instruments that were repealed when the scope of key provisions were expanded to older instruments. B. Bulk repeal outcomes shown here take into account subsequent digitisation work and research, which established that 15 instruments had been repealed at an earlier date.C. Sunsetting outcomes shown here include instruments that were not listed for sunsetting because of changes in their status advised after list preparation, and may include some instruments that were repealed and replaced on their sunset day. D. Data for instruments registered before 2005 refers to legislative instruments that were made before 2005 and then registered under the ‘backcapture’ provisions of the Legislation Act. Some of these instruments were subsequently found to have been repealed before 2005. E. Instruments that sunset in these years did so because of historic or special sunsetting provisions.

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3. Sunsetting lists under section 52

1 The Attorney-General is required to table a list of all the legislative instruments due to sunset on each sunset date. The list is to be tabled on the first sitting day of each House within 18 months of the sunset date.

2 To ensure that lists are accurate and that nothing sunsets ‘without knowing’, lists are prepared in consultation with portfolios and once a list is tabled, a copy of the list is sent to each portfolio Secretary by OPC for distribution to rule-makers (and administering line areas) in accordance with subsection 52(3).

3 Lists are subject to change and an up-to-date list of all instruments due to sunset soon is available on the FRL website. There is no requirement to table updates and it would be onerous to table updates each time an instrument’s status changes.

4 For sunset dates that are in the past, the outcomes for listed instruments have been as follows:

(a) 33% of listed instruments were explicitly repealed and replaced by another principal instrument before their sunset date;

(b) 25% were repealed before their sunset date without an obvious replacement;

(c) 29% were allowed to sunset (the default outcome if no action is taken to preserve an instrument);

(d) 6% had their sunset date deferred after listing;

(e) 7% were ‘other’ which generally means that an exemption from sunsetting was created or claimed after an instrument has been listed for sunsetting.

5 For sunset dates that are in the future, the outcome of listing is not yet known for:

(a) 75% of the instruments listed for 1 October 2017; and

(b) 90% of the instruments listed for 1 April 2018; and

(c) 97% of the instruments listed for 1 October 2018.

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Table 3: Sunsetting lists under section 52--- Listed tabled date --- Instruments --- Outcome of listing ---

List List for sunset date

House of Reps

Senate listed Rollover (s 53)

Deferral (s 51)A

Deferral (s 51A)A

Sunsetted (s 50)

Repealed earlier

Replaced B

OtherC

Pending

1 1 Apr 2012 D 18 Oct 2010 18 Oct 2010    4 - - - - 3 - 1 -2 1 Oct 2012 D 10 May 2011 10 May 2011 1 - - - 1 - - - -3 1 Apr 2014 E 9 Oct 2012 9 Oct 2012 1 - - - 1 - - - -4 1 Apr 2015 12 Nov 2013 12 Nov 2013 156 - 6 3 15 63 61 8 -5 1 Oct 2015 13 May 2014 14 May 2014 358 - 3 5 107 77 152 14 -

6 1 Apr 2016 1 Oct 2014 1 Oct 2014 352 - 3 3 118 44 108 76 -7 1 Oct 2016 12 May 2015 11 May 2015 214 - 13 10 61 71 56 3 -8 1 Apr 2017 12 Oct 2015 13 Oct 2015 324 - 17 25 110 82 85 5 -9 1 Oct 2017 18 Apr 2016 19 Apr 2016 207 - - - - 35 14 2 15610 1 Apr 2018 10 Oct 2016 10 Oct 2016 215 - - - - 12 6 3 19411 1 Oct 2018 9 May 2017 9 May 2017 199 - - 3 - 2 1 - 193

ALL LISTS 2,024 - 42 49 413 340 462 107 543

Notes to table above This data focuses on the immediate action taken once an instrument is listed for sunsetting. Data in shaded cells is subject to change as the sunset date has not occurred.

A. Data on deferrals does not include instruments that were not listed for sunsetting e.g. because they were deferred before the list for a particular sunset date was prepared.B. Data on replacements relies on rule-makers expressly repealing an instrument that would otherwise sunset.C. The outcome ‘other’ generally means that an exemption from sunsetting has been created or claimed after an instrument has been listed for sunsetting. D. These lists were accurate when published but do not reflect current rules for calculating sunset dates as amended in 2011 and 2012.E. This list reflects section 103 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006, which requires two-yearly rather than 10-yearly sunsetting of certain instruments.

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4. Deferral of sunsetting under section 51

The Attorney-General may defer an instrument’s sunset date by either six or 12 months if certain statutory conditions are met.

Table 4: Sunset date changes under section 51 (exceptional circumstances)Item Scope of deferral

(Instrument title, or description if >1)Date of making Existing

sunset date/sNew

sunset date/sReason for deferral including changes to related Acts

More information

1 ACMA instruments made under the Radiocommunications Act 1992 A:- group 1 (2 instruments)- group 2 (8 instruments) B

15 Jan 2014 Group 1:1 Apr 2015

Group 2:1 Oct 2015

Both groups:1 Apr 2016

Not required beyond 12 months (not to be replaced)

F2014L00080

2 Legislative Instruments Regulations 2004 4 Feb 2015 1 Apr 2015 1 Apr 2016 To be replaced within 6/12 months, related Bill before the Parliament

F2015L00151

3 Biosecurity instruments made under the Quarantine Act 1908 A:- group 1 (2 instruments)- group 2 (1 instrument)

4 Feb 2015 Group 1:1 Apr 2015

Group 2:1 Oct 2015

Group 1:1 Apr 2016

Group 2:1 Oct 2016

To be replaced within 6/12 months, related Bill before the Parliament

F2015L00157

4 Dispensation Guidelines (No. M35/96) made under the Sydney Airport Curfew Act 1995

26 Mar 2015 1 Apr 2015 1 Apr 2016 To be replaced within 12 months F2015L00380

5 Instruments made under the Public Lending Right Act 1985 (2 instruments) A

30 Sep 2015 1 Oct 2015 1 Oct 2016 To be replaced within 12 months, related Bill to be introduced soon

F2015L01598

6 Legal Services Directions 2005 11 Feb 2016 1 Apr 2016 1 Apr 2017 To be replaced within 12 months F2016L001247 Instruments made under the Motor Vehicle

Standards Act 1989 (5 instruments) A23 Feb 2016 1 Oct 2016 1 Oct 2017 To be replaced within 12 months,

related Bill to be introduced soonF2016L00194

8 Commerce (Imports) Regulations 1940 16 Mar 2016 1 Apr 2016 1 Apr 2017 To be replaced within 12 months,affected by change in deadline for other legislative reforms

F2016L00359

9 Residential Tenancies Regulations 1989 (WA) (CKI) Amendment Regulations 2003 (No. 1)

23 Mar 2016 1 Apr 2016 1 Apr 2017 If required—to be replaced within12 months (review underway)

F2016L00437

10 Health Insurance (Accredited Pathology Laboratories — Approval) Principles 2002

31 Aug 2016 1 Oct 2016 1 Oct 2017 To be replaced with in 12 months F2016L01401

11 Child care benefit instruments made under various Acts A:- group 1 (7 instruments)- group 2 (8 instruments)

14 Sep 2016 Group 1:1 Oct 2016

Group 2:1 Apr 2017

Both groups:1 Oct 2017

To be replaced within 6/12 months. related Bill before the Parliament

F2016L01467

12 Marriage Regulations 1963 15 Sep 2016 1 Apr 2017 1 Apr 2018 To be replaced within 12 months F2016L01465

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Table 4: Sunset date changes under section 51 (exceptional circumstances)Item Scope of deferral

(Instrument title, or description if >1)Date of making Existing

sunset date/sNew

sunset date/sReason for deferral including changes to related Acts

More information

13 Approved Occupational Clothing Guidelines 2006 8 Feb 2017 1 Apr 2017 1 Oct 2017 If required—to be replaced within 6 months (review underway)

F2017L00119

14 Code of Practice for Notification of Reviewable Decisions and Rights of Review, determined under subsection 27B(1) of the Administrative Appeals Tribunal Act 1975

14 Feb 2017 1 Apr 2017 1 Apr 2018 To be replaced within 12 months F2017L00133

15 Honey Levy (No. 1) (Certificate of Intention to Export) Regulations

1 Mar 2017 1 Apr 2017 1 Apr 2018 If required—to be replaced within 12 months (review underway)

F2017L00195

16 Threat Abatement Plans made under the Environment Protection and Biodiversity Conservation Act 1999 (2 instruments) A, C

20 Mar 2017 1 Apr 2017 1 Apr 2018 To be replaced within 12 months F2017L00293

17 Regulations made under the Copyright Act 1968 (2 instruments)

21 Mar 2017 1 Apr 2017 1 Apr 2018 To be replaced within 12 months, related Bill to be introduced soon

F2017L00291

18 Financial Management and Accountability (Establishment of Special Account) Determination 2002/06 D

21 Mar 2017 1 Apr 2017 1 Apr 2018 To be replaced within 12 months,related Bill before the Parliament

F2017L00292

19 International Air Services Policy Statement No. 5 made under the International Air Services Commission Act 1992

21 Mar 2017 1 Apr 2017 1 Apr 1018 To be replaced within 12 months F2017L00289

20 Maintenance Orders (Commonwealth Officers) Regulations 1969

21 Mar 2017 1 Apr 2017 1 Apr 2018 To be replaced within 12 months F2017L00290

21 Historic Shipwrecks Regulations 1978 19 Apr 2017 1 Oct 2017 1 Oct 2018 To be replaced within 12 months, related Bill to be introduced soon (announced 2015)

F2017L00472

22 Australian Federal Police Regulations 1979 5 Sep 2017 1 Oct 2017 1 Oct 2018 To be replaced within 12 months F2017L0115823 Health Insurance Regulations 1975 5 Sep 2017 1 Oct 2017 1 Oct 2018 To be replaced within 12 months F2017L0115524 Safety, Rehabilitation and Compensation Act 1988

- Declaration under subsection 5(6A) - Persons taken to be employed by the Commonwealth

5 Sep 2017 1 Oct 2017 1 Oct 2018 To be replaced within 12 months, related Bill before the Parliament

F2017L01156

TOTAL INSTRUMENTS AFFECTED: 56 instruments

Notes to table aboveA. Only some of the legislative instruments made under these Acts have had their sunset date deferred.B. These instruments had their sunset date deferred before the sunset list for that date was prepared (eight instruments in all).

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C. These instruments were considered to be exempt from sunsetting at the time the relevant sunset list was prepared (three instruments in all). D. This special account determination relates to the Seafarers’ Safety, Rehabilitation and Compensation Authority.

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5. Sunset date changes under section 51A (thematic review)

The Attorney-General may align the sunset dates for a group of instruments to facilitate their review together (a thematic review). This process may involve may involve bringing forward some dates, and deferring others back by no more than five years.

Table 5: Sunset date changes under section 51A (thematic review)Item Theme Scope

(instruments)Date of

declarationEarliest

sunset dateLatest

sunset dateNew

sunset dateOutcome of review

More information

1 Agricultural export (control) instruments made under various Acts

40 13 Nov 2014 1 Apr 2015 1 Apr 2022 1 Apr 2020 Pending F2014L01592

2 Instruments made under the Hearing Services Administration Act 1997

5 10 Sep 2015 1 Apr 2016 1 Oct 2022 1 Oct 2019 Pending F2015L01516

3 Instruments made under the Fuel Quality Standards Act 2000

8 11 Feb 2016 1 Oct 2016 1 Oct 2022 1 Oct 2019 Pending F2016L00125

4 Medical indemnity instruments made under various Acts 15 11 Feb 2016 1 Apr 2016 1 Apr 2020 1 Oct 2019 Pending F2016L001265 Instruments made under the Hearing Services Act 1991 2 7 Nov 2016 1 Apr 2017 1 Oct 2018 1 Oct 2019 Pending F2016L017506 Agricultural levies instruments made under various Acts 25 7 Nov 2016 1 Apr 2017 1 Oct 2022 1 Apr 2023 Pending F2016L017417 Recovery plans made under the Environment Protection and

Biodiversity Conservation Act 199939 20 Mar 2017 1 Apr 2017 1 Apr 2021 1 Apr 2022 Pending F2017L00282

8 Instruments made under the Motor Vehicle Standards Act 1989

5 5 Sep 2017 1 Oct 2017 1 Apr 2018 1 Oct 2022 Pending F2017L01157

TOTAL INSTRUMENTS AFFECTED (EACH INSTRUMENT COUNTED ONCE ONLY): 131

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6. Exemptions from sunsetting

All legislative instruments are subject to sunsetting unless they are exempt from sunsetting. Exemptions are set out in section 54 of the Legislation Act 2003, the LEOMR and in other Acts. Most exemptions are set out in the LEOMR.

Agencies are asked to nominate whether an instrument is subject to sunsetting at time of lodgement, and provide details of the authority for this. Agencies may also lodge written requests to update this information e.g. because a new exemption has been created for a class of instrument.

There are currently nine generic exemptions and more than 80 specific exemptions as detailed in tables 6B and 6C respectively. Many cover only a few instruments but others are very large. The largest categories of instrument on the FRL that are exempt from sunsetting are as follows:

Table 6A: Extent of exemptions from sunsettingCategories of legislative instrument Instruments

registeredInstruments

repealedInstruments not repealed

(likely to be in force)

Double exemption

(sunsetting and disallowance)

Legislative instruments exempt from sunsetting:- Airworthiness Directives 15,223 6,116 9,107 YES- Tariff Concession Orders 8,597 2,024 6,573 YES- Food Standards 425 317 108 YES- Vehicle Standards 248 116 132 YES- Other exempt instruments 6,933 5,365 1,568 SomeLegislative instruments subject to sunsetting (not exempt) 29,620 23,061 6,559 NO

All legislative instruments 61,046 36,999 24,047

Most exempt instruments have a double exemption, in that they are exempt from both sunsetting and disallowance (although this may not be obvious as the exemption from disallowance is often located in enabling legislation while exemptions from sunsetting are usually located in LEOMR).

More information about individual classes of instrument may be obtained by using the links to relevant Acts in the table below.

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Table 6B: Detail of generic exemptions from sunsettingItem Scope of exemption from sunsetting Location of exemption Double

exemption (sunsetting and disallowance)

1 A legislative instrument if the enabling legislation for the instrument (not being the Corporations Act 2001): (a)  facilitates the establishment or operation of an intergovernmental body or scheme involving the Commonwealth and one or more States; and(b)  authorises the instrument to be made by the body or for the purposes of the body or scheme.

Legislation Act 2003 s 54(1) RegulationsNO

OtherwiseYES

2 A legislative instrument that prescribed by regulation made under section 54(2)(b) Legislation Act 2003 s 54(2)(b)3 An instrument the sole purpose of which, or a primary purpose of which, is to give effect to an international

obligation of AustraliaLEOMR section 11 item 1

4 An instrument that establishes a body having power to enter into contracts for the purposes of the body’s functions

LEOMR section 11 item 2

5 An instrument that is a direction by a Minister to any person or body LEOMR section 11 item 3 YES6 An instrument the sole purpose of which, or a primary purpose of which, is to confer power on a

self-governing TerritoryLEOMR section 11 item 4

7 An Ordinance made under a power delegated by the Parliament in an Act providing for the government of a non-self-governing Territory

LEOMR section 11 item 5

8 An instrument (other than a regulation) relating to superannuation LEOMR section 11 item 6 Some but not all9 An instrument made under an annual Appropriation Act LEOMR section 11 item 7 YES

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Table 6C: Detail of specific exemptions from sunsetting (that specify an instrument or its enabling legislation)Item Scope of exemption Location of exemption Double

exemption (sunsetting and disallowance)

1 A legislative instrument that is a regulation made for the purposes of specified provisions within the Legislation Act 2003

Legislation Act 2003 s 54(2)(c)

2 An instrument made under section 8 or 9 of the Aboriginal Land Grant (Jervis Bay Territory) Act 1986 LEOMR section 12 item 23 A regulation made under the Aboriginal Land Rights (Northern Territory) Act 1976 LEOMR section 12 item 34 A substituted reference order made under section 19B of the Acts Interpretation Act 1901 LEOMR section 12 item 1 YES5 Each of the following:

(a) an instrument relating to aviation safety made under the Air Services Act 1995;(b) an instrument made under a regulation made under that Act

LEOMR section 12 item 4

6 Each of the following:(a) a statement made under subsection 8(1) of the Airspace Act 2007;(b) a regulation made under that Act;(c) an instrument relating to aviation safety made under a regulation made under that Act

LEOMR section 12 item 5 YES

7 A rule made under section 229 of the Anti - Money Laundering and Counter - Terrorism Financing Act 2006 LEOMR section 12 item 68 An instrument made under an annual Appropriation Act LEOMR section 11 item 79 A national capital plan made under the Australian Capital Territory (Planning and Land Management) Act

1988LEOMR section 12 item 7

10 A determination specifying drugs, made under section 4A of the Australian Federal Police Act 1979 LEOMR section 12 item 811 A declaration of an international agreements made under section 47 of the Australian Human Rights

Commission Act 1986Australian Human Rights Commission Act 1986, s 47(3)

12 A regulation made under the Australian National Registry of Emissions Units Act 2011 LEOMR section 12 item 8A13 Each of the following:

(a) a statute made under the Australian National University Act 1991;(b) a rule or order made under such a statute

LEOMR section 12 item 9

14 Each of the following:(a) an instrument made under the Australian Participants in British Nuclear Tests (Treatment) Act 2006;(b) a regulation made under that Act

LEOMR section 12 item 9A

15 A statement made under subsection 34C(1) of the Australian Security Intelligence Organisation Act 1979 LEOMR section 12 item 10 YES16 A regulation made under the Australian War Memorial Act 1980 LEOMR section 12 item 10A17 A regulation made under the Aviation Transport Security Act 2004 LEOMR section 12 item 11

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Table 6C: Detail of specific exemptions from sunsetting (that specify an instrument or its enabling legislation)Item Scope of exemption Location of exemption Double

exemption (sunsetting and disallowance)

18 Each of the following:(a) an instrument made under subsection 5(8) of the Banking Act 1959;(b) an instrument made under section 16AD of that Act;(c) an instrument made under section 70C of that Act

LEOMR section 12 item 12 YES

19 An instrument made under section 26 of the Broadcasting Services Act 1992 LEOMR section 12 item 1320 A determination made under subsection 70A(4) of the Cheques Act 1986 LEOMR section 12 item 1421 An instrument relating to aviation safety made under the Civil Aviation Act 1988, the Civil Aviation

Regulations   1988 or the Civil Aviation Safety Regulations   1998 LEOMR section 12 item 15

22 Each of the following:(a) an instrument made under section 104 or 105 of Schedule 2 to the Competition and Consumer Act 2010 (including a prescribed consumer product safety standard made under section 65C of the Trade Practices Act 1974 that was in force immediately before the commencement of item 4 of Schedule 7 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010);(b) an instrument made under section 114 of Schedule 2 to the Competition and Consumer Act 2010 (including a notice given under subsection 65C(7) of the Trade Practices Act 1974 that was in force immediately before the commencement of item 3 of Schedule 7 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010);(c) an instrument made under section 134 or 135 of Schedule 2 to the Competition and Consumer Act 2010 (including a prescribed consumer product information standard made under section 65D of the Trade Practices Act 1974 that was in force immediately before the commencement of item 5 of Schedule 7 to the Trade Practices Amendment (Australian Consumer Law) Act (No. 2) 2010)

LEOMR section 12 item 16

23 A Proclamation made under section 3A or 3B of the Control of Naval Waters Act 1918 LEOMR section 12 item 17 YES24 Each of the following:

(a) a standard made under section 334 or 336 of the Corporations Act 2001;(b) a rule made under section 798G of that Act;(c) an instrument made under section 827D of that Act

LEOMR section 12 item 18

25 A regulation made under the Cross - Border Insolvency Act 2008 LEOMR section 12 item 1926 Each of the following:

(a) a determination made solely for the purposes of either or both of sections 13 and 13A of the Currency Act 1965;(b) a regulation made under that Act

LEOMR section 12 item 20

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Table 6C: Detail of specific exemptions from sunsetting (that specify an instrument or its enabling legislation)Item Scope of exemption Location of exemption Double

exemption (sunsetting and disallowance)

27 Each of the following:(a) a regulation made solely for the purposes of section 50 or 112 of the Customs Act 1901;(b) a determination made under paragraph 153L(1)(c), 153P(2)(c) or 153Q(1)(c) or subsection 153ZIH(2) of that Act;(c) a tariff concession order made under Part XVA of that Act

LEOMR section 12 item 21 RegulationsNO

OtherwiseYES

28 A determination made under subsection 6(4) of the Defence Housing Australia Act 1987 LEOMR section 12 item 22 YES29 A regulation made under the Defence Service Homes Act 1918 LEOMR section 12 item 22A30 A disability standard made under section 31 of the Disability Discrimination Act 1992 LEOMR section 12 item 2331 An instrument made under section 178, 181, 183, 207A, 248, 303CA, 303DB, 303EB, 303FG, 324G, 341G

or 344 of the Environment Protection and Biodiversity Conservation Act 1999 38LEOMR section 12 item 24 In many cases

YES32 Each of the following made under section 165 of the Excise Act 1901:

(a) Excise By-law No. 75;(b) Excise By-law No. 114;(c) Excise By-law No. 127;(d) Excise By-law No. 129;(e) Excise By-law No. 151;(f) Excise By-law No. 154

LEOMR section 12 item 25 Not applicable (instruments

already made) but other bylawsYES

33 A regulation made under the Extradition Act 1988 LEOMR section 12 item 2634 An instrument made under subsection 14(4) of the Fair Work Act 2009 LEOMR section 12 item 27 YES

38 Note: this Act contains notes indicating that instruments made under sections 194C, 209, 324G and 341G may also be exempt from sunsetting by regulations made under the Legislation Act 2003, but there does not appear to be any corresponding provision in the LEOMR. Instruments made under these provisions are all exempt from disallowance.

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Table 6C: Detail of specific exemptions from sunsetting (that specify an instrument or its enabling legislation)Item Scope of exemption Location of exemption Double

exemption (sunsetting and disallowance)

35 A Proclamation made under any of the following provisions of the Family Law Act 1975:(a) subsection 39(7);(b) subsection 39(7A);(c) subsection 40(3);(d) subsection 41(2);(e) subsection 60E(6) as in force before its repeal by the Family Law Reform Act 1995 (see subsection 69ZF(3) of the Family Law Act 1975);(f) subsection 69J(3);(g) subsection 69J(6);(h) subsection 69ZF(1);(i) subsection 96(3)

LEOMR section 12 item 28

36 A plan of management made under section 17 of the Fisheries Management Act 1991 LEOMR section 12 item 2937 Each of the following:

(a) a Proclamation made under section 5 of the Flags Act 1953;(b) a warrant made under section 6 of that Act;(c) a rule made under section 7 of that Act

LEOMR section 12 item 30 YES

38 Standards and certain other instruments made under the Food Standards Australia New Zealand Act 1991 Food Standards Australia New Zealand Act 1991, s 6(4), 23(4), 82(2), 94, 97(6), or 106(6)

YES

39 A regulation made under the Foreign Acquisitions and Takeovers Act 1975 LEOMR section 12 item 3140 A determination made under Schedule 1, subsection 2 of the Future Fund Act 2006 Future Fund Act 2006, Schedule 1 s

2(3)YES

41 Each of the following:(a) an instrument made under subsection 21(1) of the Gene Technology Act 2000;(b) a determination made under subsection 78(1) of that Act

LEOMR section 12 item 31A

42 Each of the following:(a) a Proclamation made under section 31 of the Great Barrier Reef Marine Park Act 1975;(b) a zoning plan prepared in accordance with Division 2 of Part V of that Act;(c) a plan of management prepared in accordance with Part VB of that Act

LEOMR section 12 item 32 YES

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Table 6C: Detail of specific exemptions from sunsetting (that specify an instrument or its enabling legislation)Item Scope of exemption Location of exemption Double

exemption (sunsetting and disallowance)

43 Each of the following:(a) an approval given under subsection 16-25(1) of the Higher Education Support Act 2003;(b) an approval given under subclause 6(1) or (1A) of Schedule 1A to that Act

LEOMR section 12 item 33

44 Each of the following:(a) an instrument made under section 62ZZC of the Insurance Act 1973;(b) an instrument made under section 131A of that Act

LEOMR section 12 item 34

45 A regulation made under the International Transfer of Prisoners Act 1997 LEOMR section 12 item 3546 A regulation made under the Judges’ Pensions Act 1968 LEOMR section 12 item 3647 An instrument made under section 251A of the Life Insurance Act 1995 LEOMR section 12 item 3748 A regulation made under the Maritime Transport and Offshore Facilities Security Act 2003 LEOMR section 12 item 3849 The Migration Regulations 1994 LEOMR section 12 item 38A50 A determination made under section 6 or 8 of the Military Rehabilitation and Compensation Act 2004 LEOMR section 12 item 39 YES51 An instrument made under section 7 or 9 of the Motor Vehicle Standards Act 1989 LEOMR section 12 item 4052 A regulation made under the Mutual Assistance in Business Regulation Act 1992 LEOMR section 12 item 4153 A regulation made under the Mutual Assistance in Criminal Matters Act 1987 LEOMR section 12 item 41A54 A declaration made under section 32 of the Mutual Recognition Act 1992 LEOMR section 12 item 42 YES55 Each of the following:

(a) a determination made under section 10 or 75 of the National Greenhouse and Energy Reporting Act 2007;(b) a rule made under section 22XS of that Act;(c) a regulation made under that Act;(d) an instrument made under a regulation made under that Act

LEOMR section 12 item 42A

56 Each of the following:(a) a determination of the National Land Transport Network made under subsection 5(1) of the National Land Transport Act 2014;(b) an instrument determining conditions made under section 27, 44, 86 or 90 of that Act

LEOMR section 12 item 43 Determinations under s 5(1)

NOOtherwise

YES57 A regulation made solely for the purposes of section 7 of the National Transport Commission Act 2003 LEOMR section 12 item 44 YES

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Table 6C: Detail of specific exemptions from sunsetting (that specify an instrument or its enabling legislation)Item Scope of exemption Location of exemption Double

exemption (sunsetting and disallowance)

58 Each of the following:(a) a determination made under subsection 54(1) or 232(1) of the National Vocational Education and Training Regulator Act 2011;(b) an instrument made under paragraph 157(1)(p) of that Act;(c) a direction made under subsection 160(1) or 181(1) of that Act;(d) an instrument made under subsection 185(1), 186(1), 187(1), 188(1) or 189(1) of that Act

LEOMR section 12 item 44A YES

59 Each of the following:(a) a determination made under paragraph 26(3)(b) of the Native Title Act 1993 as in force immediately before 30 September 1998;(b) an instrument made under subparagraph 26(1)(c)(iv), subsection 26A(1), 26B(1) or 26C(2), paragraph 43(1)(b) or 43A(1)(b), subsection 207A(1), 207B(3), 245(4) or 251C(4) or (5), or paragraph (i) of the definition of infrastructure facility in section 253, of that Act;(c) a regulation made solely for the purposes of Division 6 or 7 of Part 2 of that Act

LEOMR section 12 item 45

60 A regulation made under the Papua New Guinea (Members of the Forces Benefits) Act 1957 LEOMR section 12 item 45A61 A regulation made under the Papua New Guinea (Staffing Assistance) Act 1973 LEOMR section 12 item 4662 A regulation made under the Parliamentary Contributory Superannuation Act 1948 LEOMR section 12 item 4763 Each of the following:

(a) a direction made under section 20 of the Parliamentary Service Act 1999;(b) an instrument made under section 23 or subsection 24(3) of that Act

LEOMR section 12 item 48 YES

64 Each of the following:(a) a regulation made under the Payment Systems and Netting Act 1998;(b) an approval given under section 9 of that Act

LEOMR section 12 item 49

65 Each of the following:(a) a declaration made under subsection 9(3) of the Payment Systems (Regulation) Act 1998;(b) an instrument made under Subdivision A of Division 3 of Part 3 of that Act;(c) an instrument made under section 18 of that Act;(d) an instrument made under section 25 of that Act;(e) a regulation made under that Act

LEOMR section 12 item 50 Declarations under s 9(3)

NOOtherwise

YES

66 A regulation made under section 23 of the Protection of the Sea (Powers of Intervention) Act 1981 LEOMR section 12 item 51

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Table 6C: Detail of specific exemptions from sunsetting (that specify an instrument or its enabling legislation)Item Scope of exemption Location of exemption Double

exemption (sunsetting and disallowance)

67 Each of the following:(a) a regulation made under subsection 33(1) of the Protection of the Sea (Prevention of Pollution from Ships) Act 1983;(b) an order made under subsection 34(1) of that Act

LEOMR section 12 item 52

68 A regulation made under the Protection of Word “Anzac” Act 1920 LEOMR section 12 item 5369 Each of the following:

(a) a direction issued under section 21 of the Public Service Act 1999;(b) an instrument made under section 23 or subsection 24(3) of that Act

LEOMR section 12 item 54 YES

70 Each of the following:(a) a notice given under section 36 of the Radiocommunications Act 1992;(b) a declaration made under section 153B of that Act

LEOMR section 12 item 55

71 An instrument required to be laid before the Parliament under subsection 7(7) of the Remuneration Tribunal Act 1973

LEOMR section 12 item 56

72 A regulation made under the Renewable Energy (Electricity) Act 2000 LEOMR section 12 item 56A73 Each of the following:

(a) a declaration made under subparagraph (c)(iii) of the definition of Commonwealth authority in subsection 4(1) of the Safety, Rehabilitation and Compensation Act 1988;(b) a declaration made under section 4A of that Act;(c) an instrument made under subsection 5(6) of that Act;(d) a declaration made under subparagraph 6(1)(h)(ii), or (i)(ii), of that Act;(e) a declaration made under section 100 of that Act

LEOMR section 12 item 57

74 A Proclamation made under section 7, 8, 10B, 12 or 13B of the Seas and Submerged Lands Act 1973 LEOMR section 12 item 57A75 A regulation made under the Superannuation Act 1922 LEOMR section 12 item 5876 A regulation made under the Superannuation Act 1976 (other than a regulation made solely for the purposes

of section 153AN or subsection 160(1) of that Act)LEOMR section 12 item 59

77 A regulation made under the Superannuation (Productivity Benefit) Act 1988 LEOMR section 12 item 6078 Each of the following:

(a) a code made under subclause 37(1) of Schedule 1 to the Telecommunications Act 1997;(b) a declaration made under subclause 4(1) of Schedule 3A to that Act

LEOMR section 12 item 61

79 A declaration made under subsection 6N(2) or section 34 of the Telecommunications (Interception and Access) Act 1979

LEOMR section 12 item 62

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Table 6C: Detail of specific exemptions from sunsetting (that specify an instrument or its enabling legislation)Item Scope of exemption Location of exemption Double

exemption (sunsetting and disallowance)

80 Each of the following:(a) a declaration made under section 6 of the Terrorism Insurance Act 2003;(b) a regulation made under that Act

LEOMR section 12 item 63 RegulationsNO

OtherwiseYES

81 A declaration made under section 31 of the Trans - Tasman Mutual Recognition Act 1997 LEOMR section 12 item 64 YES82 Each of the following:

(a) a determination made for the purposes of the definition of non-warlike service or warlike service in subsection 5C(1) of the Veterans’ Entitlements Act 1986;(b) an instrument made under section 29, 69B, 105 or 117 of that Act;(c) a determination made for the purposes of the definition of hazardous service in subsection 120(7) of that Act;(d) a regulation made under that Act

LEOMR section 12 item 65 Determinations under s 5C(1)

YESOtherwise

NO

83 A regulation made under the War Graves Act 1980 LEOMR section 12 item 6684 Each of the following:

(a) a Basin Plan adopted under section 44 of the Water Act 2007;(b) an amendment of a Basin Plan adopted under section 23B or 48 of that Act;(c) an amendment of a Basin Plan made under a regulation made under that Act;(d) a decision to accredit a water resource plan under section 63 of that Act;(e) a decision to accredit an amendment of a water resource plan under section 65 of that Act;(f) a rule made under section 92 or 97 of that Act;(g) a regulation made under that Act

LEOMR section 12 item 67 Varies

85 Other instruments made under the Water Act 2007 including:(a) a regulation made under section 18C of that Act;(b) a protocol made by the Murray-Darling Basin Authority under a schedule to the Agreement(b) a direction made by the Minister under section 135 or 175 of that Act

Water Act 2007 s 18C, 18D, 135 and 175

YES

86 Each of the following:(a) a declaration made under section 12 of the Water Efficiency Labelling and Standards Act 2005;(b) a determination made under section 18 of that Act

Water Efficiency Labelling and Standards Act 2005, s 12 and s 18

DeclarationsYES

DeterminationsNO

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