Don’t let the sunset on your legislative instruments

It is all too easy to be beaten by the timeframes that lead to legislative instruments sunsetting, with unintended results. In this article we remind Commonwealth agencies of the systems needed to avoid this, and of the need to plan many months ahead to avoid adverse consequences.

Sunsetting and how it works

Sunsetting provisions in the Legislation Act 2003 (Act) provide that a legislative instrument ceases to have effect after a specific date (normally after TEN years), unless further legislative action is taken to extend that law. In effect, sunsetting provides a 'use-by date' for legislative instruments. In this way, Parliament has ensured legislative instruments are periodically reviewed and updated.

But sunsetting does not:

• revive any other law that was in force or existence when the law that has sunsetted was made
• change the legality of anything already done under the legislative instrument.

While legislative instruments made after 1 January 2005 normally sunset after ten years, s 50 of the Act provides progressive sunset dates for instruments made before 2005.

Managing sunsetting provisions

Agencies are individually responsible for managing the sunsetting of legislative instruments within their portfolios, and the workload associated with these responsibilities can be considerable. Fortunately, help is available.

The Attorney-General tables a ‘sunsetting list’ of instruments, 18 months before the relevant sunsetting date (Act, s 52) – a list of instruments due to sunset is kept on the Federal Register of Legislation website.

The Office of Parliamentary Counsel provides the list to each departmental secretary to distribute to rule-makers (Act s 52(3)).

But once agencies are given that 18 months’ notice of the sunsetting of legislative instruments, agencies need to develop a project plan. Legislative instruments due to sunset need to be reviewed, so well informed decisions can be made about whether to allow the instrument to lapse, or to renew it, and whether it needs to be amended/improved.

Legislation should be reviewed well before the sunsetting date, so there is ample time for the review process and any required legislative action, and so the legislation does not lapse inadvertently. There is significant scope for unanticipated delays in the process – some of which can flow from the timetables relating to disallowance.

For exemptions from the compulsory sunsetting process, see s 54 of the Act.

In general there are three possible outcomes for instruments due to sunset:

• instrument is no longer required
• instrument is remade with amendments
• instrument is remade without amendments or rolled over by Parliament.

There are some variations on these themes which we will deal with below.

While it is possible to simply allow redundant legislative instruments to lapse, best practice regulation principles suggest active repeal of redundant instruments.

Review

Thematic review (see s 51A of the Act) allows agencies to structure reviews around policy areas. It provides for a new, single sunsetting date for multiple instruments, but requires rule-makers to apply in writing to the Attorney-General to align sunsetting dates of different legislation.

Review and ‘fit-for-purpose’

If an instrument is still required, the review must first determine if an instrument is fit-for-purpose, and second justify the rule-maker’s decision to the Parliament, stakeholders and the public.

If an instrument is fit-for-purpose it can be remade without amendment or rolled over by Parliament.

If it is not fit-for-purpose it can be remade with amendments.

In deciding whether instruments are fit-for-purpose, rule-makers need to consider a number of issues, see: Guide to Managing Sunsetting of Legislative Instruments 2016

When an instrument is found to be fit-for-purpose, it should be remade before its sunset date – retrospective instruments cannot completely prevent a legal hiatus.

The Attorney-General’s Department recommends tabling a replacement instrument at least 30 sitting days prior to the sunsetting date – but it is important to recognise that the accrual of sitting days can be dramatically slowed by Parliamentary recesses, and particularly by the calling of elections.

Upon application by the rule-maker, the Attorney-General can issue a certificate to defer the sunset date by six or twelve months (Act s 51) but only in the limited circumstances provided in that provision.

A certificate of deferral cannot revive an instrument that has already ‘sunsetted’.

Remaking instruments

A remade instrument may be disallowed by Parliament (Act s 42) – hence the necessity to allow at least thirty sitting days, and of course a disallowed instrument cannot be remade again within six months after disallowance if the second replacement instrument is the ‘same in substance’ as the first – Act s 48.

Remade instruments must be accompanied by an Explanatory Statement (Act s 15G(4)).

Explanatory Statements must include:

• for disallowable instruments – a statement of compliance with s 9 of the Human Rights (Parliamentary Scrutiny) Act 2011
• information about any consultation undertaken (and if not, reasons for this)
• information about any non-legislative material incorporated by reference.

Agencies need to actively manage their sunsetting legislative instruments. Early planning and project management is essential to ensure necessary action is taken before sunsetting occurs.