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Monday, 22 August 2011
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Ms ROWLAND (Greenway) (16:06): I agree that the Legislative Instruments Amendment (Sunsetting) Bill 2011 is a non-controversial piece of legislation. I can, at least, update members on the progress of the bill through the relevant committee, the House of Representatives Standing Committee on Social Policy and Legal Affairs, of which I am a member. Such is the non-controversial nature of this bill that, when it was referred to the committee for examination, no submissions were received on the bill and the committee determined it unnecessary to hold public hearings. The recommendation of the committee was that this bill be passed without amendment and the resolutions of the committee in that regard were unanimous.

Whilst this bill is non-controversial, it deals with a fundamental piece of statutory interpretation and rule-making law, the Legislative Instruments Act 2003. When one considers the nature and frequency by which legislative instruments are utilised in our modern system of parliamentary law making, the need to maintain a robust, unambiguous governing statute becomes clear. Indeed, the very definition of what constitutes a legislative instrument, as defined in section 5 of the act itself, is fundamental. Subject to the operation of a number of other subsections a legislative instrument is defined as an instrument in writing:

(a) that is of a legislative character; and

(b) that is or was made in the exercise of a power delegated by the Parliament.

And an instrument is taken to be of a legislative character if:

(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and

(b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.

The operation of this definition in practice, however, is not necessarily straightforward. Case law has explored the test of whether something is judicial or administrative in nature. One of the key consequences of this distinction is that the answer determines the relevant appealable avenues, primarily through either administrative appeal or the disallowance process.

In the context of the Legislative Instruments Act, 'sunsetting' is usefully defined in the Legislative Instruments Handbook as 'the automatic repeal of a legislative instrument and its amendments after a certain period of operation'.

I would like to turn to the object of the Legislative Instruments Act, as set out in section 3, namely:

… to provide a comprehensive regime for the management of Commonwealth legislative instruments by:

(a) establishing the Federal Register of Legislative Instruments as a repository of Commonwealth legislative instruments, explanatory statements and compilations; and

(b) encouraging rule-makers to undertake appropriate consultation before making legislative instruments; and

(c) encouraging high standards in the drafting of legislative instruments to promote their legal effectiveness, their clarity and their intelligibility to anticipated users; and

(d) improving public access to legislative instruments; and

(e) establishing improved mechanisms for Parliamentary scrutiny of legislative instruments; and

(f) establishing mechanisms to ensure that legislative instruments are periodically reviewed and, if they no longer have a continuing purpose, repealed.

As stated in the explanatory memorandum to the bill, the policy intent of the primary act is that legislative instruments remain in force for 10 years after they are made, but they are subject to review before the end of this period. Hence subsection (f) of the section 3 objects, which I referred to earlier, is arguably the most relevant in this regard in terms of periodical review and repeal where appropriate.

I would like turn briefly to the existing sunsetting provisions in the legislation. The operation of the existing sunsetting provisions are usefully described also in the Legislative Instruments Handbook. Relevantly, the handbook notes the way in which an automatic cessation regime is set out in part 6 of the Legislative Instruments Act. Again consistent with the objects, the handbook notes that the aim of sunsetting is to ensure that legislative instruments are reviewed regularly and retained only if needed and kept up to date.

I would like to briefly mention some of the main provisions of this bill. As I have noted, the Legislative Instruments Act establishes a comprehensive regime for the registration, tabling, scrutiny and sunsetting of legislative instruments.

Proceedings suspended from 16:11 to 16 : 12

Ms ROWLAND: The sunsetting regime ensures that legislative instruments are reviewed regularly and kept up to date. The bill makes minor yet important changes to the sunsetting rules as they apply to instruments which commence with retrospective effect. This change will ensure that these instruments have 10 years of operation from the date they are registered on the federal register of legislative instruments before they sunset. Under the current provisions, these instruments can often sunset much earlier than anticipated by the Legislative Instruments Act. The practical effect of this change will be that the calculation of the sunsetting date for legislative instruments which commence retrospectively will begin from their date of registration on the federal register rather than on the 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 rather than commencement.

The changes proposed by the bill do not affect the act's rules about the limited circumstances in which instruments with retrospective operations may be made. As can be seen, these amendments to the Legislative Instruments Act work to make the act much easier to use and increase consistency throughout its operation. So this bill does some very important things through its minor amendments to the Legislative Instruments Act to provide that instruments with retrospective commencement remain in force for 10 years following their registration. I thank the Attorney-General for his work in this area and encourage all members to support this bill. It will give certainty and consistency to the very important advisory role when establishing legislative instruments and their currency.