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Thursday, 13 September 2012
Page: 6875

Senator BRANDIS (QueenslandDeputy Leader of the Opposition in the Senate) (13:11): The Legislative Instruments Amendment (Sunsetting Measures) Bill 2012 provides for the orderly repeal and replacement of spent and redundant subordinate legislation.

The Legislative Instruments Act 2003 provides that all regulations and other legislative instruments cease automatically after 10 years unless action is taken to exempt or preserve them. This arose from a recommendation by the Administrative Review Council—and I pause to say a statutory body the board of which has not been reappointed by this government; it is yet another statutory agency which has ceased to operate and has been rendered dysfunctional by the failure of the government to constitute its board—as far back as 1992, when it did have a board, on the basis that '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all rules under review on an ongoing basis, sunsetting provides a formal mechanism to ensure that rules do not become outdated'.

A sunset regime was thought to 'concentrate the mind of rule-makers a lot more carefully and, as a result, a lot of useless delegated legislation might be knocked off the statute books'. An example of the benefits of sunsetting provisions comes from New South Wales where sunsetting came into effect in 1990. From 1 July 1990 to 1 May 2003, the number of statutory rules were cut from 976 to 445 and the number of pages of rules dropped from more than 15,000 to just over 8,000.

The dramatic increase in the number of Commonwealth statutory rules and other instruments prior to the introduction of the 2003 act indicates the sense of adopting a similar mechanism: in 1985-86, 855 rules and instruments were promulgated, rising to 1,661 in 2002-03. During the Keating government, the figure was as high as 2,087 in one particular year. Following the passage of the act by the Howard government, the figures have been dramatically lower—for example, in 2011, there were only 286. This is a good thing, given the tortuous history of the Legislative Instruments Act. The Keating government made a half-hearted start in June 1994, which, despite endorsement by two Senate committees on the referral of the then Attorney-General, languished until parliament was prorogued prior to the 1996 election. The Howard government introduced a legislative instruments bill early in its first term, but it did not pass the Senate until September 1997, when 36 non-government committee stage amendments were promptly rejected in the House of Representatives. The Senate, however, insisted on its amendments. The House laid the bill aside, having reiterated its refusal to accept the non-government amendments. The bill was reintroduced in March 1998, becoming a potential double dissolution trigger, and suffered a similar fate. However, ultimately, the 1998 election intervened. The legislation was finally passed by the parliament in 2003. Madam Acting Deputy President Pratt, I thought you would enjoy that little history of the Legislative Instruments Act.

I mention the history because of the fatuous and self-serving remarks—Oh, that's a bit strong, Mr Lambie!—made by the Attorney-General in her second reading speech on this bill in the other place. She described this bill as a measure to help small business by reducing unnecessary regulation: a sentiment which the coalition would heartily endorse would we be able to believe that this government genuinely held it. The Attorney-General stated:

This bill is yet another example of government working with the community to create a clear, understandable and fair framework for doing business in Australia.

It is instructive, therefore, that the Labor members of the Senate consistently and vociferously opposed the sunsetting measures in the previous iterations of the principal act. Nevertheless, the government is now only too happy to associate itself with successful coalition policy, and we are now dealing with a bill to fine tune the provisions that the Labor Party previously opposed—so shame on you, Senator Feeney.

The Productivity Commission, in its 2011 report Identifying and evaluating regulation reforms—a real page-turner—raised concerns about the volume of instruments sunsetting in 2015 and 'an increased risk that instruments will be remade without adequate review and without proper consultation with business and stakeholders'. The Productivity Commission further noted:

Data provided by the Office of Legislative Drafting and Publishing (OLDP) show ‘twin peaks’ in the number of sunsetting instruments that will see an estimated 2000 principal instruments sunset in October 2016 and a further 1000 in April 2018, with this pattern likely to be repeated every 10 years.

…   …   …

Around 6300 principal instruments are scheduled to sunset between 2015 and 2022. The bulk of these will sunset on or before 1 April 2018, the majority of which are regulations made prior to the commencement of the LIA in 2005.

…   …   …

While the exact extent of the forthcoming review task facing departments and agencies is not known at this time, it is potentially very large. Concerns have been expressed for some time about how the volume of reviews will be handled.

The intention of this bill is to smooth these peaks by proposing staggered sunsetting dates. For instruments that were registered in bulk when the register commenced in 2005, sunsetting dates will be spread out to reduce the number of instruments that expire at the same time and provide time for review and consultation.

The bill will insert a provision to provide for thematic reviews, as recommended by the Productivity Commission. Under thematic reviews, the Attorney-General may declare common sunsetting dates for related instruments and thereby enable stakeholders to participate in the regulation of their sector and contribute to consistency in regulation making.

The bill will also allow for the repeal of spent and redundant instruments on the Federal Register of Legislative Instruments. Approximately 40 per cent of the 40,000 titles on the register are either spent or redundant but, misleadingly, would be indistinguishable in the early stages of a search from the instruments still in force.

Finally, the bill provides for explanatory statements to accompany an instrument. These are intended to explain the purpose and operation of the instrument. The requirement may be met by explaining that the instrument replaces an earlier instrument or a specified provision and is the same in substance as the specified instrument, or that a provision of an instrument replaces an earlier legislative instrument or a provision of that instrument that is essentially the same.

Despite the lengthy and surprisingly acrimonious history of the Legislative Instruments Act 2003, and the Labor Party's historical antipathy to sunsetting provisions, the coalition does not consider this legislation to be controversial. Indeed, it considers it to be the fulfilment of visionary legislation of the Howard government and, accordingly, commends the bill to the Senate.