Explanatory Statement

Issued under the Authority of the Attorney-General

Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016

Legislation Act 2003

OUTLINE

The Legislation Act 2003 establishes a comprehensive regime for the publication of Commonwealth Acts and instruments. It also provides for the registration, tabling, parliamentary scrutiny and sunsetting (automatic repeal) of Commonwealth legislative instruments, and establishes an authoritative, complete and accessible register of those instruments, including compilations and explanatory statements.

Section 62 of the Legislation Act provides the Governor-General with the power to make regulations prescribing matters required or permitted by that Act to be prescribed, or necessary or convenient to be prescribed, for carrying out or giving effect to that Act.

Subsections 44(2) and 54(2) of the Legislation Act provide that instruments prescribed by regulation for the purposes of paragraphs 44(2)(b) and 54(2)(b) are not subject to disallowance and sunsetting respectively. Paragraph 8(6)(b) of the Legislation Act provides that instruments prescribed by regulation for the purposes of that paragraph are not legislative instruments.

The Legislation (Exemptions and Other Matters) Regulation 2015 (the Principal Regulation), made under section 62 of the Legislation Act, sets out exemptions from legislative instrument status, disallowance by the Parliament and sunsetting for instrument classes and particular instruments.

Schedule 1 of this Regulation amends the Principal Regulation to:

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provide for and clarify exemptions from sunsetting for particular instruments

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provide for and clarify exemptions from disallowance for particular instruments, and

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make consequential amendments to update existing exemptions, which make no substantive changes to the law.

The Legislation Act does not specify any conditions that must be fulfilled before the power to make this Regulation may be exercised.

However, there is a long standing principle that sunsetting exemptions should only be granted where the instrument is not suitable for regular review under the Legislation Act. This principle is underpinned by five criteria:

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

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

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commercial certainty would be undermined by sunsetting;

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the instrument is part of an intergovernmental scheme; and

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the instrument is subject to a more rigorous statutory review process.

Each sunsetting exemption made by this Regulation was analysed against the above criteria and found to be not suitable for regular review under Part 4 of Chapter 3 of the Legislation Act.

Each disallowance exemption made by this Regulation has also been found to be not suitable for the disallowance process under Part 2 of Chapter 3 of the Legislation Act.

PROCESSES FOR REVIEW OF THIS REGULATION

The Regulation is subject to tabling and disallowance under Part 2 of Chapter 3 of the Legislation Act, and will cease as if repealed on the day after the last of its provisions commence.

Regulatory impact analysis

Before the Regulation was made, its expected impact was assessed using the Preliminary Assessment tool approved by the Office of Best Practice Regulation (OBPR). That assessment indicated that it will have no or low impact on business, individuals and the economy. This assessment has been confirmed by the OBPR (OBPR reference 17635).

Statement of compatibility with human rights obligations

Before the Regulation was made, its impact on human rights was assessed using tools and guidance published by the Attorney-General's Department. The Regulation will make technical amendments to the Principal Regulation which will have no impact on the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011. This Regulation is compatible with human rights as it does not raise any human rights issues.

Consultation before making

Before this Regulation was made, the Attorney-General considered the general obligation to consult imposed by section 17 of the Legislation Act. The Attorney-General was satisfied that consultation was appropriate and reasonably practicable to be undertaken. Government departments and agencies likely to be affected by this regulation and affected areas within the Attorney-General's Department were given an adequate opportunity to comment on its proposed content. The following Departments were consulted: the Departments of Agriculture and Water Resources, Defence, Education and Training, Environment, Health, Immigration and Border Protection, Infrastructure and Regional Development, and Veterans' Affairs.

OTHER ISSUES

Matter incorporated by reference

The Regulation does not apply, adopt or incorporate other matters by reference.

More information

An explanation of the provisions and the Schedules to the Regulation is provided in Attachment A.

ATTACHMENT A

NOTES ON PROVISIONS AND SCHEDULES

Section 1 Name of Regulation

This section provides that the title of this Regulation is the Legislation (Exemptions and Other Matters) Amendment (Sunsetting and Disallowance Exemptions) Regulation 2016 (the Regulation).

Section 2 Commencement

This section provides for the whole of the Regulation to commence on the day after it is registered on the Federal Register of Legislation.

Section 3 Authority

This section provides that the Regulation is made under the Legislation Act 2003.

Section 4 Schedule(s)

This section provides that each instrument that is specified in a Schedule to the Regulation is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to the Regulation has effect according to its terms.

Schedule 1 Amendments

Schedule 1 of the Regulation amends sections 7, 10 and 12 of the Principal Regulation to insert new exemptions and update existing exemptions. Section 7 provides for particular instruments that are not legislative instruments. Section 10 provides for particular instruments that are not subject to disallowance. Section 12 provides for particular instruments that are not subject to sunsetting.

Item 1 omits "section 9A" from paragraph (a) of item 12 in the table under section 7 of the Principal Regulation and substitutes "section 11". This is consequential to amendments made to the Defence Act 1901. Former section 9A of that Act has been amended to be the new section 11. This aligns paragraph (a) of item 12 in the table under section 7 with the amended Defence Act.

Item 2 repeals item 13 in the table under section 7 of the Principal Regulation. This item refers to a determination made under regulation 14 or 23 of the Defence (Personnel) Regulations 2002. These regulations were repealed on 1 October 2016 and replaced with the new Defence Regulation 2016. Item 13 is therefore no longer needed.

Item 3 inserts new item 23A into the table under section 10 of the Principal Regulation. New item 23A provides disallowance exemptions for the following instruments made under the National Vocational Education and Training Regulator Act 2011:

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a determination made under subsection 7(2), 54(1) or 232(1)

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an instrument made under paragraph 157(1)(p)

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a direction made under subsection 160(1) or 181(1), and

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an instrument made under subsection 185(1), 186(1), 187(1), 188(1) or 189(1).

These instruments are integral to the establishment, facilitation and operation of an intergovernmental scheme for a national framework in the regulation of the vocational education and training sector, establishing accreditation regulations, standards and fees.

For example, a key regulatory mechanism is the Standards for National Vocational Education and Training Regulator Registered Training Organisations, which provide the national standards against which registered training organisations are regulated. The Regulator ensures compliance with the national standards in addition to supporting the continuous improvement of registered training organisations. These standards are set out in the legislative instrument made under subsection 185(1).

A determination made under subsection 7(2) for a State taken not to be a non-referring State also requires the written agreement from the Education Minister of that State with an agreement to introduce into that State legislation which adopts the relevant version of the National Vocational Education and Training Regulator Act. Some of the instruments also require the express agreement of the Ministerial Council (for example, instruments made under subsections 187(1), 188(1) and 189(1)).

Under subsection 44(1) of the Legislation Act, instruments that facilitate the establishment or operation of an intergovernmental scheme and are made for the purposes of the scheme are not subject to disallowance. While the general exemption under subsection 44(1) applies to the above instruments, specific exemptions provided by regulations are appropriate to align the enabling Act with the exemption mechanism under the Legislation Act, as the National Vocational Education and Training Regulator Act refers to the Principal Regulation.

Item 4 repeals and replaces item 5 in the table under section 12 of the Principal Regulation to preserve an existing exemption from sunsetting for a statement made under subsection 8(1) of the Airspace Act 2007. New item 5 provides for an exemption for that instrument, as well as the following instruments:

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a regulation made under the Airspace Act, and

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an instrument relating to aviation safety made under a regulation made under that Act.

Currently, the only regulation made under the Airspace Act is the Airspace Regulations 2007. It provides authority for the Civil Aviation Safety Authority to administer and regulate Australian-administered airspace. The Airspace Regulations gives effect to Chapter 2 of Annex 11 of the Convention on International Civil Aviation (the Chicago Convention), which provides for standards and recommended practices.

Item 1 in the table under section 11 of the Principal Regulation provides for a class exemption from sunsetting for instruments the sole purpose of which, or a primary purpose of which, is to give effect to an international obligation of Australia. While this general exemption applies to the Airspace Regulations, a specific exemption is appropriate due to need for certainty and to ensure Australian airspace is managed safely and effectively.

Instruments relating to aviation safety made under a regulation made under the Airspace Act are subject to an alternative statutory review mechanism under section 15 of the Airspace Regulations. That provision requires the Civil Aviation Safety Authority to review all operationally significant instruments at least once within every five year period after the instrument is made. Such an instrument is therefore appropriately exempted from sunsetting. Further, the Legislative Instruments Regulations 2004, repealed and substantively replaced by the Principal Regulation, provided an exemption for instruments relating to aviation safety made under the Airspace Regulations, which was not captured by the Principal Regulation. This amendment corrects that error.

Item 5 inserts new item 8A into the table under section 12 of the Principal Regulation. New item 8A provides an exemption from sunsetting for a regulation made under the Australian National Registry of Emissions Units Act 2011. Currently, there is one regulation made under the Act, the Australian National Registry of Emissions Units Regulations 2011. The Act and Regulations underpin the operation of the Australian National Registry of Emissions Units, a secure electronic system designed to track the location and ownership of:

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Australian Carbon Credit Units issued under the Emissions Reduction Fund, and

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emissions units issued under the Kyoto Protocol to the United Nations Framework Convention on Climate Change.

The Australian National Registry of Emissions Units Regulations provide instructions for domestic and international transfers of units issued under the Kyoto Protocol and provide a legal framework for enforcing the obligations under the Kyoto Protocol rules. It has the primary purpose of giving effect to Australia's international obligations arising under the Kyoto Protocol that are long-term and enduring, in particular the obligation for Parties to keep a national registry for the purpose of tracking and transferring units issued under the Kyoto Protocol. It is therefore appropriately exempted from sunsetting.

Item 6 inserts new item 9A into the table under section 12 of the Principal Regulation. New item 9A provides exemptions from sunsetting for an instrument and a regulation made under the Australian Participants in British Nuclear Tests (Treatment) Act 2006.

The Australian Participants in British Nuclear Tests (Treatment) Act provides for testing and treatment of cancer for Australian participants in British nuclear tests of ex-service personnel and other participants who were involved in the nuclear tests at Maralinga, Emu Field and the Montebello Islands between 1952 and 1965.

Instruments and regulations made under this Act apply only to a specific and limited number of civilians and former Australian Defence Force employees involved in the tests. This class of beneficiaries will diminish with time; as such, the scheme established by the Act and its subordinate instruments apply only to a "closed class". The instruments need to remain in force for as long as affected persons remain eligible for treatment. It is therefore appropriate to exempt them from sunsetting.

Item 7 inserts new item 10A into the table under section 12 of the Principal Regulation. New item 10A provides an exemption from sunsetting for a regulation made under the Australian War Memorial Act 1980. Regulations made under the Australian War Memorial Act regulate entry and conduct of persons onto any land owned by the Australian War Memorial and set charges for entry into the Memorial. They are designed to be enduring and are intended to remain in effect well beyond the 10-year sunsetting cycle.

Item 8 inserts new item 22A into the table under section 12 of the Principal Regulation. New item 22A provides an exemption from sunsetting for a regulation made under the Defence Service Homes Act 1918. The Defence Service Homes Regulation 2015 made under the Defence Service Homes Act prescribes an "operational area" for the purposes of paragraph 4(2)(b) of that Act. Paragraph 4(2)(b) of the Defence Service Homes Act provides that a person who served on or after 1 September 1957 and before 28 May 1963 in an area prescribed for the purposes of the paragraph is taken to have served during the warlike operations in or in connection with Malaya after 28 June 1950 and is therefore an "Australian soldier" for the purposes of the Defence Service Homes Act. This gives prima facie entitlement to a subsidised loan under the Defence Service Homes Act. The Defence Service Homes Act together with the Defence Service Homes Regulation provides for a "closed class" scheme. It is necessary for the Defence Service Homes Regulation to remain in force for as long as beneficiaries remain eligible for benefits.

Item 9 inserts new item 31A into the table under section 12 of the Principal Regulation. New item 31A provides exemptions from sunsetting for:

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an instrument made under subsection 21(1) of the Gene Technology Act 2000, and

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a determination made under subsection 78(1) of that Act.

These instruments facilitate the operation of an intergovernmental scheme which underpins a national gene technology regulatory scheme. Further, there are also alternative review arrangements for these instruments - Part 6 of the Gene Technology Agreement stipulates a review of the gene technology scheme to be conducted at intervals of no more than five years.

The Gene Technology (Recognition of Designated Areas) Principle 2003 issued under subsection 21(1) of the Gene Technology Act recognises areas designated under a State law for the purposes of preserving the identity of genetically modified crops and/or non-genetically modified crops. This instrument is issued by a Ministerial Council consisting of the Commonwealth and all States and Territories. Various States and Territories have moratoria in place that restrict certain dealings with Genetically Modified Organisms within their respective jurisdictions. It is therefore appropriately exempt from sunsetting.

The determinations made under subsection 78(1) of the Gene Technology Act provide for Genetically Modified Organisms to be included on the Genetically Modified Organisms Register that enables certain dealings to be undertaken without a licence.

These determinations are made by the Gene Technology Regulator, which is a statutory body established under section 26 of the Gene Technology Act. The Regulator has discretion in the performance or exercise of his or her functions or powers.

The determinations also form part of an intergovernmental scheme (the Gene Technology Agreement) and there would be the unintended consequence of creating unauthorised dealings if the determinations were to sunset, which would undermine commercial certainty.

For these reasons, determinations made under subsection 78(1) are appropriately exempted from sunsetting.

Item 10 inserts new item 38A into the table under section 12 of the Principal Regulation. New item 38A provides an exemption from sunsetting for the Migration Regulations 1994.

The object of the Migration Act 1958 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. The Migration Regulations support the Migration Act by prescribing all matters which are required or permitted by the Migration Act to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act. In particular, the Migration Regulations support the legislative object of the Migration Act by prescribing matters in respect of:

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visas permitting non-citizens to enter or remain in Australia, including the criteria and other requirements to be satisfied for the grant of a visa; and

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requirements for persons entering Australia, whether citizens or non-citizens, to identify themselves and to provide specified information.

The Migration Regulations contain an alternative statutory review mechanism inserted by the Migration Amendment (Review of the Regulations) Regulation 2016, which requires the Department of Immigration and Border Protection to conduct periodic reviews of the Migration Regulations, including to:

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commence the initial review within one year after 1 July 2017 and finish it within two years after the day the review begins; and

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commence a subsequent review every 10 years after 1 October 2017 and finish each review within two years after commencement of the review.

For this reason, it is appropriate to provide an exemption from sunsetting for the Migration Regulations.

Item 11 inserts new item 41A into the table under section 12 of the Principal Regulation. New item 41A provides an exemption from sunsetting for a regulation made under the Mutual Assistance in Criminal Matters Act 1987. Regulations made under that Act facilitate Australia's fulfilment of its international obligations to provide mutual assistance requested by other countries under various bilateral mutual assistance treaties. For example, the Mutual Assistance in Criminal Matters Regulations 1988 prescribe, among other things, powers of magistrates in relation to witnesses under the Mutual Assistance in Criminal Matters Act 1987 and offences by persons summonsed by magistrates, and includes a schedule of related forms. Other regulations made under the Mutual Assistance in Criminal Matters Act, such as the Mutual Assistance in Criminal Matters (Brazil) Regulation 2016, implement mutual assistance arrangements with other nations that are of bilateral or multilateral treaty status. As the regulations are intended to maintain enduring obligations under bilateral or multilateral treaties and facilitate the functioning of the mutual assistance scheme in Australia, they are appropriately exempted from sunsetting.

Item 12 inserts new item 42A into the table under section 12 of the Principal Regulation. New item 42A provides exemptions from sunsetting for the following instruments made under the National Greenhouse and Energy Reporting Act 2007:

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a determination made under section 10

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a determination made under section 75

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a rule made under section 22XS

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a regulation made under the Act, and

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an instrument made under a regulation made under the Act.

The National Greenhouse and Energy Reporting Act establishes both a national system for reporting greenhouse and energy information and the Government's Safeguard Mechanism. Importantly, it prescribes the emissions and/or energy thresholds that trigger a corporation's obligation to report annually. Its objectives are designed to directly support compliance with Australia's international obligations, in particular those under the United Nations Framework Convention on Climate Change and the Kyoto Protocol.

Regulations and instruments made under the National Greenhouse and Energy Reporting Act are essential to setting out corporations' reporting requirements and the rules for estimation of reported data. The reported data constitutes the primary data source used to comply with Australia's obligation under the United Nations Framework Convention on Climate Change and the Kyoto Protocol to submit an annual national greenhouse gas account.

Currently the only instrument made under a regulation made under the National Greenhouse and Energy Reporting Act is the National Greenhouse and Energy Reporting (Auditor Registration) Instrument 2012. This instrument sets out the ways in which the requirements in relation to auditing knowledge and experience may be met. This instrument also has an important role in supporting Australia's mitigation and reporting obligations under the United Nations Framework Convention on Climate Change and the Kyoto Protocol.

As all of the above instruments and regulations have a primary purpose of giving effect to international obligations that are long-term and enduring, they are appropriate to exempt from sunsetting.

Item 13 inserts new item 44A into the table under section 12 of the Principal Regulation. New item 44A provides exemptions from sunsetting for the following instruments made under the National Vocational Education and Training Regulator Act 2011:

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

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an instrument made under paragraph 157(1)(p) of that Act

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a direction made under subsection 160(1) or 181(1) of that Act, and

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an instrument made under subsection 185(1), 186(1), 187(1), 188(1) or 189(1) of that Act.

These instruments are integral to the establishment, facilitation and operation of an intergovernmental scheme for a national framework in the regulation of the VET sector, establishing accreditation regulations, standards and fees.

These instruments are covered by the general sunsetting exemption under subsection 54(1) of the Legislation Act, as they are instruments that facilitate the establishment or operation of an intergovernmental scheme and are made for the purposes of the scheme. Specific exemptions provided by regulations are appropriate to align the enabling Act with the exemption mechanism under the Legislation Act.

Item 14 inserts new item 45A into the table under section 12 of the Principal Regulation. New item 45A provides an exemption from sunsetting for a regulation made under the Papua New Guinea (Members of the Forces Benefits) Act 1957. The regulations made under that Act establishes a compensation and treatment scheme for indigenous inhabitants of Papua New Guinea who served in the Australian Defence Force during the Second World War (members). They provide disability pensions and treatment benefits to members for war-caused conditions and other benefits, such as travelling expenses for journeys to treatment locations. Benefits may also be payable to a member's dependants.

Regulations made under the Papua New Guinea (Members of the Forces Benefits) Act apply only to a specific and limited number of beneficiaries. This class of beneficiaries will diminish with time; as such, the scheme applies only to a "closed class". The number of ongoing recipients of benefits is very small but the Regulation needs to remain in force for as long as beneficiaries remain eligible. It is therefore appropriate to exempt the Regulation from sunsetting.

Item 15 inserts new item 56A into the table under section 12 of the Principal Regulation. New item 56A provides an exemption from sunsetting for a regulation made under the Renewable Energy (Electricity) Act 2000.

The Renewable Energy (Electricity) Act and the Renewable Energy (Electricity) Regulations 2001 made under it play an important role in establishing the Renewable Energy Target scheme. The Renewable Energy (Electricity) Regulations underpin the operation of the scheme, which requires wholesale purchasers of electricity to either surrender certificates created by both large-scale and small-scale renewable energy sources or pay a shortfall charge. The aim of the scheme is to increase investment in renewable energy so that it increasingly displaces fossil fuel-based electricity generation, thereby reducing greenhouse gas emissions. The Renewable Energy (Electricity) Regulations therefore facilitate Australia's fulfilment of its international obligations under the United Nations Framework Convention on Climate Change and the Kyoto Protocol, in particular its obligation to reduce emissions of greenhouse gases.

As the regulations made under the Renewable Energy (Electricity) Act have a primary purpose of giving effect to an international obligation that is long-term and enduring, they are therefore appropriately exempted from sunsetting.

Item 16 inserts new item 57A into the table under section 12 of the Principal Regulation. New item 57A provides an exemption from sunsetting for a proclamation made under sections 7, 8, 10B, 12 or 13B of the Seas and Submerged Lands Act 1973.

The Seas and Submerged Lands Act is the domestic law under which Australia declares sovereignty or sovereign rights over its maritime zones and continental shelf, in accordance with the 1982 United Nations Convention on the Law of the Sea. The proclamations made under the Seas and Submerged Lands Act specify the limits of Australia's territorial sea, contiguous zone, exclusive economic zone and continental shelf, and declare certain bays in South Australia to be historic bays. As such, they are designed to be enduring and not subject to regular review. It is therefore appropriate to exempt the proclamations made under the Seas and Submerged Lands Act from sunsetting.

Item 17 repeals and replaces item 65 in the table under section 12 of the Principal Regulation. This item also inserts new items 66 and 67 into the table under section 12 of the Principal Regulation.

The repealed item 65 provides exemptions from sunsetting for the following instruments:

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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

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an instrument made under subsection 69B(6) of that Act, and

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a determination made for the purposes of the definition of hazardous service in subsection 120(7) of that Act.

New item 65 provides exemptions for those instruments, as well as the following instruments:

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an instrument made under section 29, 105 or 117 of the Veterans' Entitlements Act, and

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a regulation made under that Act.

These instruments provide assistance or outline criteria or guidelines that support the benefits and entitlements payable under the Veterans' Entitlements Act. They apply to classes of World War I and World War II veterans and, in some cases, their spouses and dependants. As the number of people affected by the instruments reduces as the veteran population diminishes, the instruments apply only to a "closed class" of beneficiaries. They will, however, need to remain in force while the affected veterans, spouses or dependants continue to obtain assistance under the schemes. They are therefore appropriately exempted from sunsetting.

New item 66 provides an exemption from sunsetting for a regulation made under the War Graves Act 1980. The War Graves Regulations prescribe the allowances payable to the Director of War Graves for the purposes of subsection 6(2) of the War Graves Act. This instrument is intended to remain unaltered and enduring, and is therefore appropriately exempted from sunsetting.

New item 67 provides exemptions from sunsetting for the following instruments:

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a Basin Plan adopted under section 44 of the Water Act 2007

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an amendment of a Basin Plan adopted under section 23B or 48 of that Act

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an amendment of a Basin Plan made under a regulation made under that Act

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a decision to accredit a water resource plan under section 63 of that Act

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a decision to accredit an amendment of a water resource plan under section 65 of the Act

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a rule made under section 92 or 97 of that Act, and

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a regulation made under that Act.

These instruments and regulations made under the Water Act, together with the Water Act, underpin integrated water resource management within the Murray-Darling Basin, which operates, in practice, as an intergovernmental scheme. The establishment of the intergovernmental scheme involved a partial referral of Basin States' constitutional powers under section 51(xxxvii) of the Constitution to the Commonwealth Parliament, supported by the 2008 Agreement on Murray-Darling Basin Reform - Referral between the Commonwealth and the Basin States. The Murray-Darling Basin scheme is facilitated through ongoing cooperation with Basin States and therefore it is appropriate to exempt the instruments from sunsetting.

Some of the instruments also establish commercial certainty for water users and Basin jurisdictions, amongst others, in the Murray-Darling Basin. For example, the water charge rules, made under section 92 of the Water Act, allow the Australian Competition and Consumer Commission to determine water charges for Part 6 operators for a fixed period, which in turn provides certainty to water users of the prices they will face over the business and investment cycle.

For these reasons, it is appropriate to exempt the above instruments and regulations made under the Water Act from sunsetting.