BILLS DIGEST NO. 26, 2011–12, 22 August 2011

Legislative Instruments Amendment (Sunsetting) Bill 2011

Moira Coombs
Law and Bills Digest Section

Date introduced:  6 July 2011

House:  House of Representatives

Portfolio:  Attorney-General

Commencement:  The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill's home page, or through http://www.aph.gov.au/bills/. When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the ComLaw website at http://www.comlaw.gov.au/.

Purpose

The purpose of the Legislative Instruments Amendment (Sunsetting) Bill 2011 is to amend the Legislative Instruments Act 2003 to clarify that the day a legislative instrument is registered is the day that the 10 year sunsetting period will commence particularly in relation to legislative instruments with retrospective commencement dates.

Background

This Bill concerns legislative instruments that have retrospective commencement provisions. There is a presumption against retrospectivity of legislation. Pearce and Argument comment:

When interpreting any legislation, the courts assume, in the absence of some clear statement to the contrary, that the legislation is not intended to operate retrospectively. The leading case on this question in Australia is Maxwell v. Murphy (1957) 96 CLR 261. In that case, Dixon CJ (at 267) summarised the approach of the courts as follows:

The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.       

However, the approach adopted by the courts is but an assumption, and can be displaced if there is clear evidence that the legislature intended the legislation to have retrospective operation.[1]

Although this quote refers to Acts of Parliament, it applies equally to delegated legislation.[2]

Legislative Instruments Act 2003 (LIA)

As the Bills Digest to the 2003 Legislative Instruments Bill 2003 states:

The Legislative Instruments Bill has a long and tortuous history that commenced in 1992 with the Administrative Review Council’s Rule making by Commonwealth Agencies. That report laid the basis for many of the principles incorporated into the various iterations of the Legislative Instruments Bill.

The Council had been prompted to examine Commonwealth subordinate legislation by a concern that there could be no satisfactory access to justice, if the legislation governing citizens’ activities could not be readily found.[3]

Sunsetting

The Administrative Review Council recommended in 1992 that sunsetting provisions be included in the LIA and that all instruments be sunsetted 10 years after the principal instrument was first made.

Even though the sponsoring agency may keep all rules under review on an ongoing basis, sunsetting provides a formal mechanism to ensure that rules do not become outdated.[4]

Sunsetting is an opportunity to clean up the statute books:

… concentrate the minds of rule-makers a lot more carefully and as a result, a lot of useless delegated legislation might be knocked off the statute books.[5]

Review of the Legislative Instruments Act 2003

The LIA was reviewed in 2008. The intention of the review was to ensure that the object of the Act expressed in section 3 of the LIA remained relevant and appropriate:

To provide a comprehensive regime for the management of Commonwealth legislative instruments.[6]

The review was conducted in accordance with section 59 of the LIA.[7] The recommendations of the Review in relation to the review and sunsetting provisions of the LIA are as follows:

37. The sunsetting provisions in the LIA be retained, but that the Attorney-General remind responsible Ministers:

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

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

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

38. Agencies take action to cull spent legislative instruments as soon as practicable and identify instruments that will need to be continued beyond their sunsetting date.

39. The 10-year sunsetting period be maintained pending the statutory review of the sunsetting provisions.[8]

This Bill deals with legislative instruments that have retrospective commencement and the date when they will be subject to the sunsetting provisions of the LIA.

Committee consideration

Senate Selection of Bills Committee

The Senate Selection of Bills Committee decided on 7 July 2011 to defer consideration of the Legislative Instruments Amendment (Sunsetting) Bill 2011 (the Bill) to its next meeting.[9]

House of Representatives Standing Committee on Social Policy and Legal Affairs

The Bill has been referred to the House of Representatives Standing Committee on Social Policy and Legal Affairs. [10] The Committee reported on 18 August 2011 and recommended that the Bill be passed by the House without amendment.[11]

Financial implications

According to the Explanatory Memorandum, the proposed Bill will not have any significant financial impact.[12]

Key provisions

Section 50 of the LIA deals with the sunsetting of legislative instruments including principal legislative instruments and their accompanying amending instruments made before the commencing day, principal legislative instruments and amending instruments made on or after the commencing day, partially amending legislative instruments and instruments with multiple days of commencement.

Item 1 amends subsection 4(1) which sets out the definitions for the LIA. A note is inserted at the end of the definition of commencing day which states that the commencing day is 1 January 2005.

Item 2 amends paragraph 50(4)(b) by substituting “date of commencement” with “day of commencement” to make the terms consistent. Headings are inserted to subsections 50(1), (2), (3) and (5). 

Item 3 inserts proposed subsection 50(7) which provides that the day of commencement of a legislative instrument that commences retrospectively will be read as a reference to a day of registration. Legislative instruments with retrospective commencement commence before the day of registration on the Federal Register of Legislative Instruments.

As the Explanatory Memorandum notes:

The practical effect of this change will be that calculation of the sunsetting date for legislative instruments which commence retrospectively will begin from their date of registration on the Federal Register of Legislative Instruments rather than their day of commencement. Similarly, where some, but not all, provisions of a legislative instrument commence retrospectively, the sunsetting date for those retrospectively commencing provisions will be calculated from the day of registration and not commencement.[13]

Concluding comments

This amendment will ensure that legislative instruments with retrospective commencement provisions will not cease to have effect before the 10 year period.

Members, Senators and Parliamentary staff can obtain further information from the Parliamentary Library on (02) 6277 2784.

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ISSN 1328-8091

[1].               D Pearce and S Argument, Delegated legislation in Australia, 3rd edn, LexisNexis Butterworths, 2005, p. 384.

[2].               Ibid.

[3].               M Coombs, Legislative Instruments Bill 2003, Bills Digest, no. 26, 2003-04, Parliamentary Library, Canberra, 2003, viewed 2 August 2011, http://www.aph.gov.au/library/pubs/bd/2003-04/04bd026.pdf

[4].               Administrative Review Council, Rule- making by Commonwealth Agencies, Report no. 35, 1992, p. ix.

[5].               S Argument, House of Representatives Standing Committee on Legal and Constitutional Affairs, Report on the Legislative Instruments Bill 1994, 1995, p. 65.

[6].               A Blunn, I Govey, J McMillan, Review of the Legislative Instruments Act 2003, report, 2008, p. 3, viewed 3 August 2011, http://www.ag.gov.au/www/agd/rwpattach.nsf/VAP/(CFD7369FCAE9B8F32F341DBE097801FF)~b_LIA+review+-+report+May2009.PDF/$file/b_LIA+review+-+report+May2009.PDF

[7].               Ibid.

[8].               Ibid, p. 10.

[9].               Senate Selection of Bills Committee, Report no. 9 of 2011, 7 July 2011, viewed 1 August 2011, http://www.aph.gov.au/senate/committee/selectionbills_ctte/reports/2011/rep0911.pdf

[10].               House of Representatives , Standing Committee on Social Policy and Legal Affairs, Bills referred for Committee Scrutiny: Extradition and Mutual Assistance in Criminal Matters Legislation Amendment Bill 2011, Legislative Instruments Amendment (Sunsetting) Bill 2011, media alert, 8 July 2011, viewed 2 August 2011, http://www.aph.gov.au/house/committee/spla/Bill%20Sunsetting/media/media%201.pdf

[11].               House of Representatives, Inquiry into the Legislative Instruments Amendment (Sunsetting) Bill 2011, transcript of report from the Committee, 18 August 2011, viewed 22 August 2011, http://parlinfo/parlInfo/genpdf/chamber/hansardr/6361d3c0-95c8-445c-910d-b8ad096ae36d/0041/hansard_frag.pdf;fileType=application/pdf 

[12].               Explanatory Memorandum, Legislative Instruments Amendment (Sunsetting) Bill 2011, p. 1.

[13].               Ibid., p. 3.