Thursday, 28 June 2018
Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018; Second Reading
That this bill be now read a second time.
The Legislation Amendment (Sunsetting Review and Other Measures) Bill 2018 seeks to improve and streamline the operation of legislative frameworks for Commonwealth acts and instruments by making amendments to various acts, primarily the Legislation Act 2003 and the Acts Interpretation Act 1901.
The key purpose of the bill is to implement those recommendations of the Report on the operation of the sunsetting provisions in the Legislation Act 2003 that can only be addressed by legislative action.
Last year, a review of the sunsetting provisions in the Legislation Act was conducted by a committee comprised of three senior Commonwealth public servants.
The sunsetting provisions provide that a legislative instrument is automatically repealed approximately 10 years after commencement. Sunsetting ensures that legislative instruments are kept up to date and only remain in force for so long as they are needed.
The committee did find that the sunsetting framework is, in general, fulfilling its stated purpose. As at 1 October 2017, over 2,000 legislative instruments have appeared on sunsetting lists tabled in parliament under section 52 of the Legislation Act. Of those instruments, approximately 20 per cent were allowed to sunset, 19 per cent were actively repealed, and 24 per cent were replaced (comprising approximately 63 per cent of the listed instruments in total). These statistics indicate that the sunsetting framework has substantially contributed to keeping the statute book up to date.
The sunsetting of older legislative instruments is also an important mechanism for the Australian government to reduce red tape, deliver clearer laws and align existing legislation with current government policy.
The Attorney-General's Department has made enhancements to administrative processes and internal guidance to assist Commonwealth rule-makers and agencies to manage the sunsetting of their legislative instruments efficiently, effectively and in accordance with the law.
However, some legislative action was necessary to further streamline and improve the operation of the scheme. This bill seeks to include more flexibility in the sunsetting framework by broadening the scope of the Attorney-General's power to issue certificates of deferral of sunsetting and declarations of alignment of sunsetting. It also provides for greater parliamentary scrutiny of the exercise of these powers.
The time restriction on the parliament's power to roll over the sunsetting date of a legislative instrument will also be removed.
The bill will provide that rules made by each of the federal courts are not subject to the sunsetting framework, as there are already numerous mechanisms in place to ensure that rules of court remain fit for purpose, relevant and required.
Further, this bill provides a definition of 'sitting day' as it applies to the disallowance provisions of the Legislation Act. This definition is consistent with current practice, but will provide greater legal clarity about the status of legislative instruments in circumstances where the parliament has sat on an unscheduled sitting day.
This bill will also make minor changes to a number of provisions to clarify their operation, in particular the interaction between the disallowance, tabling and automatic repeal provisions of the Legislation Act. In addition to the amendments resulting from the recommendations of the committee, this bill will make other minor and technical amendments to the Legislation Act and the Acts Interpretation Act to clarify their operation, resolve inconsistencies between provisions and simplify language.
In particular, it will clarify that a provision in the Legislation Act allowing a legislative or notifiable instrument to commence before the instrument is registered operates despite any rule or principle of common law. Any retrospective commencement of a legislative or notifiable instrument, however, is displaced to the extent that the retrospective commencement adversely affects the rights or liabilities of a person other than the Commonwealth. This provides a protection against retrospectivity for adversely affected individuals without rendering an entire instrument or provision of an instrument ineffective in relation to all people both prospectively and retrospectively.
It will also clarify the limits of the First Parliamentary Counsel's power to rectify an error on the Federal Register of Legislation. This error correction power ensures that administrative errors, such as lodgement of the incorrect version of an instrument or compilation for publication on the Register, can be rectified without requiring the rule-maker to repeal and remake the instrument.
Finally, this bill will clarify that, where an act refers to a provision of another act or state or territory law, and that provision is repealed and re-enacted, a reference to the repealed provision extends to the re-enacted provision even if it is differently numbered.
This bill provides an opportunity to improve and streamline the legislative frameworks for Commonwealth acts and delegated legislation that ensure Commonwealth laws are up-to-date, clear and align existing legislation with current government policy. For those reasons, I commend the bill to the House.