House of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Christian Porter MP)

Schedule 1 - Sunsetting review

Acts Interpretation Act 1901

Item 1 - Section 2B

43. Section 2B of the Acts Interpretation Act sets out definitions that are relevant to the operation of the Acts Interpretation Act. This item inserts a new definition of 'sitting day' into section 2B, which will be defined by reference to new section 2M (inserted by item 2 of Schedule 1).

Item 2 - Definition of 'sitting day

44. This item inserts new section 2M into the Acts Interpretation Act to provide a definition of 'sitting day'. This reflects recommendation 45 of the Sunsetting Review Report.

45. New subsection 2M(1) provides that a sitting day, in relation to a House of the Parliament, is a day on which that House actually sits.

46. New subsection 2M(2) provides that, if a House sits without adjourning on a previous day, the period during which the House continues to sit, with or without a suspension, on a later day is taken to be part of that previous day. This includes adjournments in the normal course of the business of each House.

47. In addition to the examples set out under subsection 2M(2), further examples of how new section 2M would operate in practice are set out below.

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The Senate begins sitting at 9 am on Thursday and extends (with or without a suspension of the sitting) until it is adjourned at 3 pm on Saturday. The period from 9 am Thursday to 3 pm Saturday is a single sitting day for the Senate.

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The House of Representatives begins sitting at 9 am on Wednesday and extends (with or without a suspension of the sitting) until it is adjourned at 1 am on Thursday. The House of Representatives then starts sitting again at 10 am on Thursday and adjourns at 3 pm on Thursday. The period from 9 am Wednesday to 1 am Thursday is a single sitting day for the House of Representatives. The period from 10 am Thursday until 3 pm Thursday is a separate sitting day for the House of Representatives.

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The House of Representatives begins sitting at 9 am on Thursday and is adjourned at 1 pm the same day. The House of Representatives then starts sitting again at 3 pm on same day and adjourns again at 6 pm that day. The period from 9 am Thursday to 6 pm Thursday is a single sitting day for the House of Representatives.

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The Senate begins sitting at 9 am on Wednesday and extends (with or without a suspension of the sitting) until it is adjourned at 1 am on Thursday. The Senate then starts sitting again at 10 am on Thursday and adjourns at 1 am on Friday. The period from 9 am Wednesday to 1 am Thursday is a single sitting day for the Senate. The period from 10 am on Thursday until 1 am on Friday is a separate sitting day for the Senate.

48. New subsection 2M(3) provides that for the purposes of this section, a House is taken to have adjourned if the Parliament is prorogued, that House is dissolved, or that House (if it is the House of Representatives) expires. The purpose of new subsection 2M(3) is to clarify the circumstances in which a House is also taken to have adjourned, in addition to the ordinary concept of adjournment.

Item 3 - Subparagraph 46AA(1)(a)(ii)

49. This item omits the word 'or' from subparagraph 46AA(1)(a)(ii) of the Acts Interpretation Act to reflect the insertion of new subparagraph 46AA(1)(a)(iii) by item 4 of Schedule 1.

Item 4 - At the end of paragraph 46AA(1)(a)

50. Section 46AA of the Acts Interpretation Act provides for an instrument, other than a legislative instrument, a notifiable instrument or a rule of court, to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. This section also allows instruments to apply, adopt or incorporate any matter contained in any other material in the form that exists at the time the instrument commences.

51. Section 46AA ensures that only legislation that has been scrutinised by the Parliament can be incorporated in a form that may vary from time to time. Since the Federal Register of Legislation provides an authoritative source of all Acts and legislative instruments, section 46AA is also consistent with the general principle of access to justice that materials incorporated by reference in legislation should be freely accessible to the public.

52. This item inserts new subparagraph 46AA(1)(a)(iii) to clarify that an instrument may apply, adopt or incorporate the provisions of rules of court as in force at a particular time or as in force from time to time.

53. This amendment is consequential to the amendments made by items 6 to 21 of Schedule 1, which provide that rules of court (which are not legislative instruments) are exempt from the sunsetting framework in Part 4 of Chapter 3 of the Legislation Act but remain subject to the other requirements of that Act, including registration, publication and disallowance. This amendment ensures that section 46AA applies to rules of court in the same way as any other disallowable legislative instrument by allowing instruments to incorporate provisions of rules of court in the same way as provisions of a disallowable legislative instrument.

54. The amendment made by this item is consistent with amendments made to section 14 of the Legislation Act by items 23 and 24 of Schedule 1 that deal with incorporation of material in legislative instruments and notifiable instruments.

Item 5 - Application provision

55. This item contains an application provision for item 4 of Schedule 1, with the effect that the amendment to section 46AA of the Acts Interpretation Act applies to instruments made on or after the commencement of this item (even if the enabling provision for the instrument exists at commencement). This ensures the amendment does not apply retrospectively.

Items 6 to 21 - Amendments to the Family Law Act 1975 , the Federal Circuit Court of Australia Act 1999 , the Federal Court of Australia Act 1976 and the Judiciary Act 1903

56. Recommendations 34 and 35 of the Sunsetting Review Report are that rules of court should not be subject to sunsetting, but should be subject to the registration and publication requirements of the Legislation Act.

57. Paragraph 8(8)(d) of the Legislation Act provides that rules of court are not legislative instruments. As such, the default position is that rules of court are not subject to any of the provisions of the Legislation Act.

58. However, certain provisions of the enabling legislation of each federal court (together, the Federal Court Acts) provide that the Legislation Act - other than section 8 (which defines 'legislative instrument'), section 9 (which provides that no inference of legislative character can be drawn from whether an instrument is a legislative instrument), section 10 (which declares certain classes of instruments to be legislative instruments), and section 16 (which requires the First Parliamentary Counsel to cause steps to be taken to promote high drafting standards) - applies to rules made by the federal courts as if they were legislative instruments. These provisions are:

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

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

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

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

59. As such, despite paragraph 8(8)(d) of the Legislation Act, rules made by each of the federal courts are subject to the provisions of the Legislation Act, including the sunsetting framework.

60. Items 6 to 21 of Schedule 1 amend the aforementioned provisions of the Federal Court Acts to ensure that rules made by each of the federal courts are not subject to the sunsetting framework set out in Part 4 of Chapter 3 of the Legislation Act, but continue to be subject to the remaining aspects of the Legislation Act, including the registration and publication requirements in Chapter 2. This reflects recommendations 34 and 35 of the Sunsetting Review Report.

61. The purpose of the sunsetting framework, as set out in section 49 of the Legislation Act, is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed. Rules of court already undergo constant and detailed scrutiny and review by subject area experts, frequently with the benefit of argument by external subject area experts. Decisions about the operation of those rules in individual circumstances are often published publicly and are sometimes subject to judicial review or appeal. As such, it would not be inappropriate to exempt rules of court from the operation of the sunsetting framework, as there are already numerous mechanisms in place to ensure that they remain fit-for-purpose, relevant and required.

62. It is appropriate that rules of court remain subject to the registration and publication requirements of the Legislation Act. This means that rules of court, their accompanying explanatory statements, and any compilations of the rules will continue to be registered and published on the Federal Register of Legislation. This promotes access to justice by ensuring that an authoritative record of rules of court will continue to be freely accessible to the public from a central repository.

63. Details about each of items 6 to 21 of Schedule 1 are set out in the following paragraphs. Family Law Act 1975

Item 6 - Section 26E

64. Section 26E of the Family Law Act provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made under sections 26B and 26C of the Family Law Act.

65. This item amends section 26E to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made under sections 26B and 26C.

Item 7 - Paragraph 26E(a)

66. This item amends paragraph 26E(a) of the Family Law Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made under sections 26B and 26C, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

67. Subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act provide for legislative and notifiable instruments to make provision in relation to a matter by applying, adopting or incorporating the provisions of a disallowable legislative instrument at a particular time or as in force from time to time.

68. The effect of this item is to clarify that a rule of court made under sections 26B and 26C can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time. As legislative instruments are required to be registered and published on the Federal Register of Legislation, this item is consistent with the general principle that materials incorporated by reference should be freely accessible to the public.

Item 8 - Subsection 37A(14)

69. Section 37A of the Family Law Act provides for the Judges to make rules of court delegating to the Registrars all or any of the powers of the Court. Subsection 37A(14) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made under section 37A.

70. This item amends subsection 37A(14) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made under section 37A.

Item 9 - Paragraph 37A(14)(a)

71. This item amends paragraph 37A(14)(a) of the Family Law Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made under section 37A, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

72. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made under section 37A can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 10 - Subsection 123(2)

73. Section 123 of the Family Law Act provides for the Judges to make rules of court relating to the practice and procedure to be followed in the Family Court and any other courts exercising jurisdiction under the Family Law Act. Subsection 123(2) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under section 123 or any other Act.

74. This item amends subsection 123(2) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court.

Item 11 - Paragraph 123(2)(a)

75. This item amends paragraph 123(2)(a) of the Family Law Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made under section 123, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

76. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 12 - Application provision

77. This item contains an application provision for items 6 to 11 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report.

Federal Circuit Court of Australia Act 1999

Item 13 - Subsection 81(3)

78. Section 81 of the FCCA Act provides for the Judges to make rules of court relating to the practice and procedure to be followed in the Court, and prescribing any other matters required or permitted to be prescribed. Subsection 81(3) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under the FCCA Act or another Act.

79. This item amends subsection 81(3) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court under the FCCA Act or another Act.

Item 14 - Paragraph 81(3)(a)

80. This item amends paragraph 81(3)(a) of the FCCA Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made by the Court, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

81. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 15 - Application provision

82. This item contains an application provision for items 13 and 14 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report.

Federal Court of Australia Act 1976

Item 16 - Subsection 59(4)

83. Section 59 of the FCA Act provides for the Judges to make rules of court relating to the practice and procedure to be followed in the Court, and any other matter necessary or convenient to be prescribed for the conduct of any business of the Court. Subsection 59(4) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under the FCA Act or another Act.

84. This item amends subsection 59(4) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court under the FCA Act or another Act.

Item 17 - Paragraph 59(4)(a)

85. This item amends paragraph 59(4)(a) of the FCA Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made by the Court, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

86. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 18 - Application provision

87. This item contains an application provision for items 16 and 17 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report.

Judiciary Act 1903

Item 19 - Subsection 86(2)

88. Section 86 of the Judiciary Act provides for the Justices to make rules of court necessary or convenient to be made for carrying into effect the provisions of the Judiciary Act or so much of the provisions of any other Act as confers jurisdiction on the High Court, or that relate to the practice or procedure of the High Court. Subsection 86(2) provides that the Legislation Act, other than sections 8, 9, 10 and 16 of that Act, applies in relation to rules of court made by the Court under the Judiciary Act or another Act.

89. This item amends subsection 86(2) to exclude the application of Part 4 of Chapter 3 (which deals with sunsetting) of the Legislation Act to rules of court made by the Court under the Judiciary Act or another Act.

Item 20 - Paragraph 86(2)(a)

90. This item amends paragraph 86(2)(a) of the Judiciary Act to clarify that the Legislation Act applies as if a reference to a legislative instrument were a reference to a rule of court made by the Court, except the references to a legislative instrument in subparagraph 14(1)(a)(ii) and subsection 14(3) of the Legislation Act.

91. The effect of this item, similar to that of item 7 of Schedule 1, is to clarify that a rule of court made by the Court can also apply, adopt or incorporate the provisions of a disallowable legislative instrument as in force at a particular time or as in force from time to time.

Item 21 - Application provision

92. This item contains an application provision for items 19 and 20 of Schedule 1, with the effect that the amendments contained in those items apply both to rules of court made on or after, and to rules of court in force immediately before, the commencement of this item. This ensures that the exclusion of rules of court from the sunsetting framework applies to both existing and future rules of court, consistent with recommendation 34 of the Sunsetting Review Report. Legislation Act 2003

Item 22 - Section 3A

93. Section 3A of the Legislation Act sets out a simplified outline of the key elements of the Legislation Act.

94. This item amends section 3A by omitting the phrase 'after their commencement'. This reflects the amendments made to the automatic repeal provisions in Division 1 of Part 3 of Chapter 3 by items 42 to 60 of Schedule 1.

Item 23 - Subparagraph 14(1)(a)(ii)

95. This item omits the word 'or' from subparagraph 14(1)(a)(ii) of the Legislation Act to reflect the insertion of new subparagraph 14(1)(a)(iii) by item 24 of Schedule 1.

Item 24 - At the end of paragraph 14(1)(a)

96. Section 14 of the Legislation Act provides for a legislative instrument or a notifiable instrument to make provision in relation to a matter by applying, adopting or incorporating the provisions of an Act or a disallowable legislative instrument as in force at a particular time or as in force from time to time. This section also allows instruments to apply, adopt or incorporate any matter contained in any other material in the form that exists at the time the instrument commences.

97. Section 14 ensures that only legislation that has been scrutinised by Parliament can be incorporated in a form that may vary from time to time. Since the Federal Register of Legislation provides an authoritative source of all Acts and legislative instruments, section 14 is also consistent with the general principle of access to justice that materials incorporated by reference in legislation should be freely accessible to the public.

98. This item inserts new paragraph 14(1)(a)(iii) to clarify that a legislative or notifiable instrument may apply, adopt or incorporate the provisions of rules of court as in force at a particular time or as in force from time to time.

99. This item is intended to remove any doubt that section 14 applies to rules of court in the same way as it does to any other disallowable legislative instrument by explicitly providing that legislative and notifiable instruments can apply, adopt or incorporate a rule of court or a provision of a rule of court as in force at a particular time or from time to time. This is consequential to the amendments made by items 6 to 21 of Schedule 1, which provide that rules of court are exempt from the sunsetting framework in Part 4 of Chapter 3 of the Legislation Act but remain subject to the other requirements of that Act, including registration, publication and disallowance.

100. The amendment made by this item is consistent with amendments made to section 46AA(1)(b) of the Acts Interpretation Act by items 3 and 4 of Schedule 1 to this Bill that deal with incorporation of material in instruments that are not legislative instruments nor notifiable instruments.

Item 25 - Subsection 38(3)

101. Subsection 38(3) of the Legislation Act provides that a legislative instrument ceases to have effect if it is not laid before each House of the Parliament within six sitting days of registration. This item amends subsection 38(3) by replacing the phrase 'ceases to have effect' with 'is repealed'.

102. This amendment is intended to clarify that legislative instruments that have not been laid before Parliament in accordance with section 38 are removed from the statute book, rather than simply ceasing to have effect. This use of language is consistent with current drafting practice.

Item 26 - Subsection 38(3) (note)

103. This item repeals the Note under subsection 38(3) of the Legislation Act as a consequence of the repeal of subsection 45(1) by item 36 of Schedule 1.

Items 27 to 33 - Amendments to section 4

104. Section 42 of the Legislation Act provides for parliamentary scrutiny of legislative instruments by setting out the process by which a legislative instrument (or a provision thereof) is disallowed or deemed to have been disallowed. Specifically, subsections 42(1) and (2) provide that a legislative instrument is disallowed if:

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a notice of a motion to disallow is moved within 15 sitting days of a House of the Parliament after the instrument was laid before that House, and

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either:

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the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision, within 15 sitting days of the giving of that notice, or

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the notice of motion is not withdrawn or otherwise dealt with at the end of 15 sitting days after it is given.

105. Subsection 42(3) deals with circumstances in which a notice of motion to disallow has been given in a House of the Parliament before the end of the 15 sitting day period, but the House of Representatives is dissolved or expires, or the Parliament is prorogued, before that notice of motion can be dealt with.

106. Items 27, 30 and 33 amend paragraphs 42(1)(a), (2)(b), (2)(a), (2)(b), (3)(a) and (3)(b) to insert the phrase 'beginning on the first sitting day' after each reference to '15 sitting days of that House'. The purpose of these amendments is to put beyond doubt when a 15 sitting day period commences after an instrument is laid before a House of the Parliament. These amendments are consistent with the current practice of the Parliament and the Executive in relation to the calculation of a period of sitting days.

107. Item 28 amends subsection 42(1) to replace the phrase 'then ceases to have effect' with 'is repealed immediately after the passing of that resolution'. This clarifies that a legislative instrument that is disallowed under subsection 42(1) is removed from the statute book immediately at the time the resolution is passed, rather than simply ceasing to have effect. This use of language is consistent with current drafting practice.

108. Item 31 amends subsection 42(2) to replace the phrase 'ceases at that time to have effect' with 'is repealed at that time'. This clarifies that a legislative instrument that is deemed to have been disallowed in accordance with subsection 42(2) is removed from the statute book, rather than simply ceasing to have effect. This use of language is consistent with current drafting practice.

109. Items 29 and 32 repeal the Notes under subsection 42(1) and (2) as a consequence of the repeal of subsection 45(1) by item 36 of Schedule 1.

Item 34 - Paragraph 44(1)(a)

110. Subsection 44(1) of the Legislation Act provides that a legislative instrument is not subject to disallowance if the enabling legislation for the instrument (other than the Corporations Act 2001):

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

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

111. Subsection 44(1) was inserted into the then -Legislative Instruments Act 2003 in recognition of the argument that the Commonwealth Parliament should not be able to unilaterally disallow instruments that have been made for the purposes of a multi-jurisdictional body or scheme and would therefore affect jurisdictions other than the Commonwealth.

112. This item inserts the phrase 'or Territories' into paragraph 44(1)(a) to clarify that subsection 44(1) also applies in relation to intergovernmental bodies or schemes involving the Commonwealth and one or more States or Territories. This reflects recommendation 36 of the Sunsetting Review Report.

113. Subsection 54(1) is set out in similar terms, and item 71 of this Schedule makes corresponding amendments to that provision.

Items 35 to 38 - Amendments to section 45

114. Section 45 of the Legislation Act provides that, where a legislative instrument ('repealing instrument') or provision of a legislative instrument ('repealing provision') wholly or partly repeals another legislative instrument or law ('affected instrument'), but the repealing instrument or repealing provision has itself ceased because of the operation of subsection 38(3) (where the instrument has not been laid before the Parliament as required) or subsections 42(1) or (2) (where the instrument has been disallowed), then the affected instrument or provision revives from the time of cessation.

115. Item 35 replaces the existing heading to section 45 of the Legislation Act with the new heading 'Reviving a legislative instrument, law or provision'. This amendment clarifies the operation of section 45 and is consequential to the amendments made by items 36 to 38 of Schedule 1.

116. Item 36 repeals subsection 45(1), as its effect is already covered by subsection 45(2) (as amended by items 37 and 38 of Schedule 1).

117. Item 37 replaces current paragraph 45(2)(a) with a new paragraph 45(2)(a) to clarify that the effect of the operation of subsections 38(2), 42(1) and 42(2) is that the repealing instrument or repealing provision is repealed and therefore removed from the statute book, rather than merely ceasing to have effect.

118. In addition, the current reference to sections 48A and 48C in subparagraph 45(2)(a)(ii) does not exist in new paragraph 45(2)(a). This is consequential to the amendments of section 48A and 48C by items 42 to 54 of Schedule 1, which will mean that it is generally not possible for a repealing instrument or repealing provision to have already been repealed by sections 48A or 48C before it can be repealed by the operation of subsections 38(3), 42(1) or 42(2).

119. Item 38 amends subsection 45(2) to replace the phrase 'the repealed instrument, law or provision revived from the cessation time' with 'the instrument, law or provision repealed by the repealing instrument or repealing provision revives from the repeal time'. Similarly to item 37, this is intended to clarify that subsections 38(2), 42(1) and 42(2) operate to repeal an instrument or provision and therefore remove it from the statute book.

120. The amendments made by items 36, 37 and 38 are clarifying in nature only and do not change the substantive effect of section 45.

Items 39 and 40 - Section 4

121. Section 47 of the Legislation Act provides that if a notice of motion to disallow an instrument (or a provision thereof) has been given in a House of the Parliament within 15 sitting days after that instrument has been laid before that House, an instrument or provision that is the same in substance must not be remade unless certain conditions are met.

122. These items amend subsection 47(1) and paragraph 47(2)(b) to clarify that the 15 sitting day period commences on the first sitting day of a House after the instrument is laid before that House. As with the amendments made by items 27, 30 and 33 of Schedule 1, the purpose of these amendments is to put beyond doubt when a 15 sitting day period commences after an instrument is laid before a House of the Parliament. These amendments are consistent with the current practice of the Parliament and the Executive in relation to the calculation of a period of sitting days.

Item 41 - Section 48A

123. Section 48AA of the Legislation Act sets out a simplified outline of Part 3 of Chapter 3 of the Legislation Act.

124. This item amends section 48AA by omitting the phrase 'after it has achieved this effect'. This reflects the amendments made to the automatic repeal provisions in Division 1 of Part 3 of Chapter 3 by items 42 to 60 of Schedule 1.

Items 42 to 60 - Amendments to sections 48A, 48C, 48

125. Sections 48A, 48C and 48D of Division 1 of Part 3 of Chapter 3 of the Legislation Act ('the automatic repeal provisions') provide that the following instruments are automatically repealed once the instrument has commenced, the capacity for any further provisions to take effect has been exhausted, or the instrument is registered, whichever occurs later:

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a legislative or notifiable instrument ('amending or repealing instrument') whose only legal effect is to amend or repeal another legislative or notifiable instrument (section 48A)

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a legislative or notifiable instrument that contains a provision ('amending or repealing provision') whose only legal effect is to amend or repeal another legislative or notifiable instrument, or to amend the instrument containing the provision (section 48C), and

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a legislative or notifiable instrument, other than a commencement instrument, that contains a provision ('commencement provision') whose only legal effect is to provide for the commencement of an instrument or an Act (section 48D).

126. The operation of the automatic repeal provisions does not prevent the amending and repealing instrument, or the instrument containing the amending and repealing provision or commencement provision, from being subject to disallowance. As a consequence, these instruments are often automatically repealed before the disallowance period for that instrument has concluded.

127. The Sunsetting Review Report considered that this interaction between the automatic repeal provisions and the disallowance mechanism 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.

128. The amendments made by items 42 to 60 of Schedule 1 reflect recommendation 44 of the Sunsetting Review Report that Division 1 of Part 3 of Chapter 3 be amended 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.

129. These amendments do not affect the ability of another Act to expressly override the Legislation Act by providing for a shorter or longer disallowance period for instruments made under that Act. Should an enabling Act prescribe a shorter or longer disallowance period than that prescribed under section 42 of the Legislation Act, then any instruments falling under sections 48A, 48C or 48D would be automatically repealed at the end of the shorter or longer disallowance period.

130. Details about each of these items are set out in the following paragraphs.

131. Item 42 amends subsection 48A(1) to replace 'This' with 'Subject to subsection (2), this'. This clarifies that the operation of section 48A is subject to subsection 48A(2), as amended by items 43 to 46 of Schedule 1.

132. Item 43 amends subsection 48A(2) to provide that an amending or repealing instrument is automatically repealed in accordance with that subsection unless it is repealed earlier by subsection 38(3) (if the instrument has not been laid before the Parliament as required) or subsection 42(1) or (2) (if the instrument has been disallowed).

133. Item 44 inserts new paragraph 48A(2)(aa) to provide that an amending or repealing instrument that is a disallowable legislative instrument is automatically repealed at either the end of the disallowance period for that instrument, when the instrument has fully commenced, or when the capacity for any further provisions to commence has been exhausted, whichever occurs later.

134. Item 45 amends paragraph 48A(2)(a) to provide that the time of the automatic repeal, as set out in paragraph 48A(2)(a), applies to any legislative or notifiable instrument.

135. Item 46 amends paragraph 48A(2)(b) to provide that an amending or repealing instrument that is a legislative instrument that is exempt from disallowance, or is a notifiable instrument, is automatically repealed when the instrument has fully commenced, the capacity for any further provisions to commence has been exhausted, or the instrument is registered, whichever occurs later.

136. Item 47 repeals subsection 48A(4), as it is made redundant by subsection 48A(2) as amended by item 43 of Schedule 1.

137. Item 48 amends subsection 48C(1) to replace 'This' with 'Subject to subsection (2), this'. This clarifies that the operation of section 48C is subject to subsection 48C(2), as amended by items 49 to 53 of Schedule 1.

138. Item 49 amends subsection 48C(2) to provide that an amending or repealing provision is automatically repealed in accordance with that subsection unless it is repealed earlier by subsection 38(3) (if the instrument containing the amending or repealing provision has not been laid before the Parliament as required) or subsection 42(1) or (2) (if the instrument has been disallowed).

139. Item 50 inserts new paragraph 48C(2)(aa) to provide that an amending or repealing provision is automatically repealed at either the end of the disallowance period for the amending or repealing provision or the disallowable legislative instrument containing the provision, or when the amending or repealing provision has commenced or can no longer commence, whichever occurs later.

140. Item 51 amends paragraph 48C(2)(a) to provide that the time of the automatic repeal, as set out in paragraph 48C(2)(a), applies to any amending or repealing provision that is in a legislative or notifiable instrument.

141. Item 52 amends paragraph 48C(2)(b) to provide that an amending or repealing provision contained in a legislative instrument that is exempt from disallowance, or in a notifiable instrument, is automatically repealed when the amending or repealing provision has commenced or can no longer commence, or when the instrument is registered, whichever occurs later.

142. Item 53 amends paragraph 48C(2)(b) to omit the phrase 'containing the provision', which becomes redundant as a consequence of the amendment made by item 52 of Schedule 1.

143. Item 54 repeals subsection 48C(4), as it is made redundant by subsection 48C(2) as amended by item 49 of Schedule 1.

144. Item 55 amends subsection 48D(1) to replace 'This' with 'Subject to subsection (2), this'. This clarifies that the operation of section 48D is subject to subsection 48D(2), as amended by items 56 to 60 of Schedule 1.

145. Item 56 amends subsection 48D(2) to provide that a commencement provision is automatically repealed in accordance with that subsection unless it is repealed earlier by subsection 38(3) (if the instrument containing the commencement provision has not been laid before the Parliament as required) or subsections 42(1) or (2) (if the instrument has been disallowed).

146. Item 57 inserts new paragraph 48D(2)(aa) to provide that a commencement provision contained in a disallowable legislative instrument is automatically repealed at either the end of the disallowance period for that instrument, or when the commencement provision has taken effect or can no longer take effect, whichever occurs later.

147. Item 58 amends paragraph 48D(2)(a) to provide that time of the automatic repeal, as set out in paragraph 48C(2)(a), applies to any commencement provision that is in a legislative or notifiable instrument.

148. Item 59 amends paragraph 48D(2)(b) to provide that a commencement provision contained in a legislative instrument that is exempt from disallowance, or in a notifiable instrument, is automatically repealed when the commencement provision has taken effect or can no longer take effect, or when the instrument is registered, whichever occurs later.

149. Item 60 amends paragraph 48D(2)(b) to omit the phrase 'containing the commencement provision', which becomes redundant as a consequence of the amendment made by item 59 of Schedule 1.

Items 61 and 63 - Amendments to subsection 51(1

150. Subsection 51(1) of the Legislation Act provides that the Attorney-General may issue a certificate deferring the sunsetting day of a legislative instrument ('certificate of deferral') if she or he is satisfied, on written application by the rule-maker, that:

•

the instrument is 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

•

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)).

151. Paragraph 51(1)(c) provides that the sunsetting day of a legislative instrument may be deferred to a day that is six or 12 months after its original sunsetting day. Item 63 repeals and replaces paragraph 51(1)(c) to provide that the Attorney-General may defer the sunsetting day of a legislative instrument to a day that is six, 12, 18 or 24 months after its original sunsetting day. This item reflects recommendation 10 of the Sunsetting Review Report.

152. Item 61 amends the criterion in subparagraph 51(1)(b)(i) to require the Attorney-General to be satisfied, on application by a rule-maker, that an instrument is likely to cease to be in force within 24 months, rather than 12 months, after its original sunsetting day. This is consequential to the amendment made by item 63. It contemplates that the Attorney-General may be satisfied that the instrument is likely to cease to be in force within six, 12, 18 or 24 months after its original sunsetting day, and to determine the most appropriate period of deferral based on that satisfaction.

153. These amendments confer upon the Attorney-General the discretion to grant a longer deferral in circumstances where delaying the original sunsetting day by 12 months may be insufficient. This often occurs where the remaking of a legislative instrument is contingent upon proposed legislation that is being considered by Parliament or that is intended to be introduced into Parliament within 24 months. In those circumstances, a deferral would avoid the need to remake the instrument in substantially the same form for the short period before it ceases to have effect, or is repealed and replaced, as a consequence of the commencement of new legislation.

Item 62 - At the end of paragraph 51(1)(b)

154. This item inserts new subparagraph 51(1)(b)(iii) in the Legislation Act to provide that the Attorney-General may also defer the sunsetting day of a legislative instrument on the basis that she or he has given approval to exempt that instrument from the sunsetting framework in Part 4 of Chapter 3. This reflects recommendation 13 of the Sunsetting Review Report.

155. This item allows the Attorney-General to prevent the unintended sunsetting of an instrument that she or he considers should be exempt from sunsetting, but where extenuating circumstances may prevent the exemption from coming into force before that instrument would have sunset.

Item 64 - Subsection 51(2)

156. Existing subsection 51(2)(b) of the Legislation Act requires the Attorney-General to cause a copy of the certificate of deferral, which is a legislative instrument, to be laid before each House of the Parliament within six sitting days of the issuing of the certificate. This is different to the tabling requirement for other legislative instruments under subsection 38(1) of the Legislation Act, which requires the instrument to be laid before each House of the Parliament within six sitting days of the registration of the instrument.

157. This item repeals paragraph 51(2)(b) to align the tabling requirements for certificates of deferral with those of other legislative instruments, by requiring certificates of deferral to be laid before each House within six sitting days of registering the certificate in accordance with subsection 38(1) of the Legislation Act. This is appropriate, as deferring the sunsetting day of an instrument is a significant matter of which the Parliament should be advised. This amendment reflects recommendation 16 of the Sunsetting Review Report.

158. This item also repeals paragraph 51(2)(a), which prescribes the requirement for certificates of deferral to include a statement of reasons. This repeal is consequential to the insertion of new subsection 51(5) by item 65 of Schedule 1.

Item 65 - At the end of section 51

159. This item inserts new subsections 51(4) and (5) into the Legislation Act.

Subsection 51(4)

160. Currently, a certificate of deferral issued under paragraph 51(1)(c) of the Legislation Act is a legislative instrument by virtue of subsection 51(3), but is not subject to disallowance by virtue of item 19 of section 10 of the Legislation (Exemptions and Other Matters) Regulation 2015 (LEOMR).

161. New subsection 51(4) provides that a certificate of deferral is exempt from disallowance if it defers the sunsetting day of an instrument by up to 12 months, meaning that a certificate of deferral that defers the sunsetting of a legislative instrument by 18 or 24 months will be subject to disallowance. This is because a certificate purporting to defer the sunsetting of a legislative instrument by 18 or 24 months is a significant matter that should be subject to parliamentary scrutiny. This reflects recommendation 11 of the Sunsetting Review Report.

162. Item 19 of section 10 of the LEOMR becomes redundant upon the commencement of new subsection 51(4) and will be repealed in due course.

Subsection 51(5)

163. Currently, paragraph 51(2)(a) of the Legislation Act requires that the Attorney-General include in certificates of deferral issued under paragraph 51(1)(c) a statement of the reasons for the issue of the certificate.

164. New subsection 51(5) would require the statement of reasons for the issue of the certificate to be contained in the explanatory statement for the certificate, rather than the certificate itself. This reflects recommendation 18 of the Sunsetting Review Report.

165. An explanatory statement is an important aid to interpreting and understanding the purpose and operation of a legislative instrument. As such, it is more appropriate for a statement of the reasons for the issue of the certificate to be contained in the explanatory statement.

Item 66 - Paragraph 51A(1)(b)

166. Section 51A of the Legislation Act provides that the Attorney-General may issue a declaration (a 'sunset-altering instrument') aligning the sunsetting days of two or more legislative instruments to the 1 April or 1 October of a year that is up to five years later. The Attorney-General must be satisfied, on application by the rule-maker, that:

•

the instruments are or will be the subject of a single review (often referred to as a 'thematic review') (paragraph 51A(1)(a)), and

•

the making of the declaration will facilitate the undertaking of the review and the implementation of its findings (paragraph 51A(1)(b)).

167. This item omits 'and' and substitutes 'or' in paragraph 51A(1)(b). This amendment allows the Attorney-General to align the sunsetting days of two or more instruments if she or he is satisfied that to do so would facilitate either the undertaking of a review or the implementation of the findings of a completed review.

168. The objective of section 51A, which was inserted by the Legislative Instruments Amendment (Sunsetting Measures) Act 2012, was to encourage robust reviews of current legislative instruments which might include engagement and consultation with business and other stakeholders. Noting that the participation of business and other stakeholders in consultation processes can be hampered by large volumes of legislative reviews, an alignment of sunsetting dates facilitates the undertaking of a single thematic review of legislation and reduces the burden of multiple consultation processes.

169. The implementation of a review's findings is an essential step in the undertaking of a review of the legislation. The amendment to section 51A made by this item provides flexibility and incentivises the implementation of the findings of a completed review, regardless of whether the review was instigated for reasons other than the sunsetting process. Since the implementation of the findings is an essential step in the process of undertaking a thematic review, this amendment is consistent with the objective of section 51A. It also reflects recommendation 19 of the Sunsetting Review Report.

170. As legislative instruments, sunset-altering instruments are subject to the parliamentary scrutiny mechanisms in Part 2 of Chapter 3 of the Legislation Act, including section 42 (disallowance).

Item 67 - At the end of section 51A

171. This item inserts new subsection 51A(4) in the Legislation Act to require that the explanatory statement for a sunset-altering instrument made under section 51A include a statement of the reasons for the making of the instrument. This reflects recommendation 18 of the Sunsetting Review Report.

172. Unlike certificates issued under paragraph 51(1)(c), there is no current requirement that declarations issued under section 51A must contain include a statement of reasons, either in the declaration itself or in the explanatory statement for the declaration.

173. This amendment would resolve the inconsistency between section 51 and 51A. It would also promote transparency and encourage greater accountability in undertaking robust reviews by publicising the details of proposed thematic reviews.

Items 68 to 70 - Amendments to section 5

174. Section 53 of the Legislation Act allows either House of the Parliament to pass a resolution to defer the sunsetting day of a legislative instrument for a further 10 years (a 'parliamentary roll over'). The resolution must be passed within six months after the instrument is mentioned in either a certificate laid before a House of the Parliament under section 51 ('certificate of deferral') or in a list laid before a House of the Parliament under section 52 ('sunsetting list').

175. The existence of the parliamentary roll over mechanism recognises the Parliament's ultimate authority over delegated legislation, including preventing the sunsetting of delegated legislation.

176. Items 68 and 70 amend subsection 53(1) to remove the requirement that a parliamentary roll over resolution must be passed within six months after the instrument in question is mentioned in a certificate of deferral or a sunsetting list. The effect of the amendments is that the Parliament may 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 and before its sunsetting day. This recognises that the six-month time limit was an inappropriate restriction on Parliament's authority and reflects recommendation 25 of the Sunsetting Review Report.

177. Item 69 amends subparagraph 53(1)(a)(i) to reflect that, as a consequence of the repeal of paragraph 51(2) by item 64, certificates of deferral will be laid before a House of the Parliament in accordance with section 38 (which prescribes tabling requirements for all legislative instruments) rather than under section 51.

Item 71 - Paragraph 54(1)(a)

178. Subsection 54(1) of the Legislation Act provides that the sunsetting framework in Part 4 of Chapter 3 does not apply to a legislative instrument if the enabling legislation for the instrument (other than the Corporations Act 2001):

•

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

•

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

179. Subsection 54(1) was inserted into the then -Legislative Instruments Act 2003 because instruments that are part of a multilateral agreement should not be subject to a unilateral sunsetting process which would cause them to cease to exist in only one of the jurisdictions that are party to the agreement.

180. This item inserts the phrase 'or Territories' into paragraph 54(1)(a) to clarify that subsection 54(1) also applies in relation to intergovernmental bodies or schemes involving the Commonwealth and one or more States or Territories. This reflects recommendation 36 of the Sunsetting Review Report.

181. Subsection 44(1) is set out in similar terms, and item 34 of this Schedule makes corresponding amendments to that provision.

Item 72 - Section 55

182. This item amends the simplified outline in section 55 of the Legislation Act to provide that a review of the sunsetting framework set out under Part 4 of Chapter 3 will be conducted in 2027. This is consequential to the amendments made by item 73 of Schedule 1.

Item 73 - Subsection 60(1) and (4)

183. Section 60 of the Legislation Act requires a review to be undertaken of the operation of Part 4 of Chapter 3 (which deals with sunsetting) in 2017. This item amends section 60 to require a review of the operation of Part 4 of Chapter 3 to be undertaken in 2027. This reflects recommendation 3 of the Sunsetting Review Report.

184. Because the substantive provisions of the then -Legislative Instruments Act 2003 commenced on 1 January 2005, older legislative instruments made before 1 January 2005 were registered in bulk on that day. As such, the operation of the sunsetting framework could not be fully assessed until 1 April 2015 when the first group of legislative instruments began to sunset.

185. In that sense, the sunsetting framework was still in the relatively early stages of operation at the time of the 2017 review into the operation of the sunsetting framework. As such, it is appropriate to undertake a further review of the sunsetting provisions at a later date when more evidence of their operation can be gathered.

Item 74 - Application and saving provisions

186. This item contains application and saving provisions relating to amendments made by Schedule 1.

Subitem 74(1)

187. Subitem 74(1) provides that the amendments of paragraph 14(1)(a) of the Legislation Act, which provide that a legislative or notifiable instrument may apply, adopt or incorporate the provisions of rules of court as in force at a particular time or as in force from time to time, apply to application, adoption or incorporations of provisions by an instrument made on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendments do not have retrospective effect.

Subitem 74(2)

188. This subitem provides that the amendment of section 38 of the Legislation Act, which provides that a legislative instrument is repealed if it is not laid before each House of the Parliament within six sitting days of registration, apply in relation to a legislative instrument that is registered on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendment does not have retrospective effect.

Subitem 74(3)

189. This subitem provides that the amendments of section 42 of the Legislation Act, which clarify the effect of disallowance and the period during which a motion for disallowance can be moved or passed, apply in relation to a legislative instrument that is laid before a House of the Parliament on or after the commencement of item 74. This ensures the amendments do not have retrospective effect.

Subitem 74(4)

190. This subitem provides that the amendment of paragraph 44(1)(a) of the Legislation Act, which clarifies that subsection 44(1) also applies to intergovernmental schemes between the Commonwealth and one or more Territories, applies in relation to a legislative instrument that is made on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendment does not have retrospective effect.

Subitems 74(5), (6) and (7)

191. Subsection 45(1) of the Legislation Act provides that an instrument that ceases to have effect because it was not laid before Parliament within six sitting days of registration (under subsection 38(3)) or because it was disallowed or deemed to be disallowed (under subsections 42(1) or (2)) has the same effect as if that instrument was repealed.

192. Subitem 74(5) provides that subsection 45(1), which is repealed by item 36, nonetheless continues to apply on and after the commencement of this item in relation to a legislative instrument that was registered or was laid before a House of the Parliament before the commencement of item 74.

193. Subitem 74(6) provides that the amendments of subsection 45(2) of the Legislation Act, which clarify that the effect of the operation of subsections 38(2), 42(1) and 42(2) is that the repealing instrument or repealing provision is repealed rather than merely ceasing to be in force, apply in relation to a legislative instrument or a provision of a legislative instrument that is repealed by subsection 38(3) or 42(1) or (2) of that Act on or after the commencement of item 74.

194. Subitem 74(7) provides that subsection 45(2) continues to apply on or after the commencement of this item in relation to a legislative instrument that was registered or was laid before a House of the Parliament before the commencement of item 74.

195. The repeal of subsection 45(1) and the amendments to subsection 45(2) by items 37 and 38 do not change the substance of existing section 45. As such, subitems 74(5), (6) and (7) are merely intended to ensure that there is certainty in relation to instruments to which subsections 45(1) and (2) would have applied before their repeal or amendment.

Subitem 74(8)

196. This subitem provides that the amendments of sections 48A, 48C and 48D of the Legislation Act, which clarify the operation of the provisions relating to automatic repeal of spent instruments, apply in relation to a legislative or notifiable instrument that is made on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendments do not have retrospective effect.

Subitems 74(9) and (10)

197. These subitems provide that the amendments of section 51 of the Legislation Act, which relate to the scope of the Attorney-General's discretion to issue certificates of deferral and impose a requirement for a statement of reasons to be included in the explanatory statement, apply in relation to a certificate issued under section 51 on or after the commencement of item 74 (even if the enabling provision for the certificate exists at commencement). This ensures the amendments do not have retrospective effect.

Subitem 74(11)

198. This subitem provides that the amendments of section 51A of the Legislation Act, which clarifies the circumstances in which section 51A can apply and impose a new requirement for a statement of reasons to be included in the explanatory statement, apply in relation to an instrument made under section 51A on or after the commencement of item 74 (even if the enabling provision for the instrument exists at commencement). This ensures the amendments do not have retrospective effect.

Subitem 74(12)

199. This subitem provides that the amendments of section 53 of the Legislation Act apply in relation to a legislative instrument where the relevant certificate of deferral or sunsetting list is laid before a House of the Parliament before, on or after the commencement of this item.

200. The amendments of section 53 recognise the principle that Parliament should have ultimate authority over delegated legislation by ensuring that Parliament may 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. Consistent with this principle, the effect of subitem 74(12) is that a House of the Parliament will be able to move such a resolution in relation to any instrument that has been mentioned in a certificate of deferral or a sunsetting list that has been laid before that House at any time.

Subitem 74(13)

201. This subitem provides that the amendment of paragraph 54(1)(a) of the Legislation Act, which clarifies that subsection 54(1) also applies to intergovernmental schemes between the Commonwealth and one or more Territories, applies in relation to a legislative instrument that is made on or after the commencement of item 74 and to a legislative instrument in force immediately before the commencement of item 74. This ensures that the Commonwealth does not unilaterally sunset an instrument that is already in force and part of a multilateral agreement with a Territory. It also puts beyond doubt that the amendment of paragraph 54(1)(a) does not operate to re-enliven an instrument that has already sunset.