Review of the Sunsetting Framework under the Legislation Act 2003
The 2017 review of sunsetting is to consider and report on all aspects of the operation of the sunsetting framework set out in Part 4 of Chapter 3 of the Legislation Act 2003. The review should assess the implementation and continuing relevance of recommendations.
About the sunsetting framework
Sunsetting provisions in legislation provide that a law is automatically repealed after a specific date unless further legislative action is taken to extend that law. It is an important mechanism for the Australian Government to implement policies to reduce red tape, deliver clearer laws and align existing legislation with current government policy.
Most jurisdictions in Australia have sunsetting regimes. The sunsetting regime in the Commonwealth context is set out in Part 4 of Chapter 3 of the Legislation Act, which provides for a legislative instrument to sunset 10 years after its registration on the Federal Register of Legislation. That part also sets out a number of mechanisms for extending the life of a legislative instrument beyond its original sunsetting date. Section 49 of the Legislation Act provides that the purpose of the sunsetting framework "is to ensure that legislative instruments are kept up to date and only remain in force for so long as they are needed".
There are some exemptions from the sunsetting provisions of the Legislation Act. These exemptions are listed under section 54 of the Legislation Act and Part 5 of the Legislation (Exemptions and Other Matters) Regulation 2015.
Section 60 of the Legislation Act 2003 (Legislation Act) requires that by 31 March 2017, the Attorney-General appoint persons to a body to review the operation of Part 4 (Sunsetting of legislative instruments) of Chapter 3 of the Legislation Act. Subsection 60(3) requires the body to review all aspects of the operation of Part 4 of Chapter 3 and any related matters that the Attorney-General specifies.
The former Attorney-General, Senator the Hon George Brandis QC, appointed senior Commonwealth officials Mr Iain Anderson, Mr Peter Quiggin PSM and Ms Alison Larkins to the Sunsetting Review Committee. Mr Anderson chaired the committee.
Subsection 60(4) requires the committee to give the Attorney-General a written report on the review before 1 October 2017.
Sunsetting Review Committee
Mr Iain Anderson, Mr Peter Quiggin PSM and Ms Alison Larkins were appointed to the Sunsetting Review Committee. The committee was supported by a secretariat from the Attorney-General's Department.
Mr Iain Anderson (Chair)
Iain Anderson is the Chief Operating Officer and Deputy Secretary, Civil Justice and Corporate Group, in the Attorney-General's Department.
Mr Anderson is responsible for civil justice policy and programmes, constitutional law, civil law, the Office of International Law, corporate operations and budget, ICT, human resources, and strategy and delivery across the department.
Since joining the department in 1990, Mr Anderson has worked in many areas of the department, including Australian Government Solicitor, and has led divisions responsible for criminal justice; strategic policy; native title; territories; legal services and classification. He has also led the in-house legal area of the Australian Taxation Office. Mr Anderson has degrees in Law and Economics from Sydney University.
Mr Peter Quiggin PSM
Peter Quiggin is the First Parliamentary Counsel of the Office of Parliamentary Counsel (OPC), which is responsible for drafting all principal legislation, all regulations and a range of legislative instruments for the Australian Government, including taxation legislation. OPC is also responsible for the publication of Commonwealth legislation through the Federal Register of Legislation.
Mr Quiggin's initial seven-year appointment as First Parliamentary Counsel started on 13 May 2004. He has since been reappointed for a further seven years, commencing on 14 May 2011. He has been a drafter with the Office of Parliamentary Counsel for over 25 years and has drafted legislation covering a wide range of topics including taxation, native title and immigration. Mr Quiggin was awarded a Public Service Medal in the Australia Day 2008 Honours List.
Mr Quiggin is an ex officio member of the Board of Taxation. Prior to working at OPC, Mr Quiggin worked for a number of years with the Australian Taxation Office and the Administrative Appeals Tribunal.
Ms Alison Larkins
Alison Larkins is the Chief Operating Officer and Deputy Secretary in the Department of Health. Ms Larkins is responsible for the department’s corporate and enabling areas and the department’s state networks. Prior to joining the Department of Health, Ms Larkins worked in the Department of the Prime Minister and Cabinet (PM&C) as acting Deputy Secretary, Social Policy. While in PM&C she was responsible for the Social Policy Division, National Ice Taskforce Secretariat and Reform of the Federation Taskforce.
Ms Larkins previously led the Refugee, Humanitarian and International Policy, Compliance and Case Management, and People and Governance Divisions in the Department of Immigration and Border Protection.
Ms Larkins was also previously appointed as acting Commonwealth Ombudsman and Deputy Commonwealth Ombudsman.
Terms of reference
The committee’s terms of reference provided that the 2017 review of sunsetting is to consider and report on all aspects of the operation of the sunsetting framework set out in Part 4 of Chapter 3 of the Legislation Act 2003, including:
- the extent to which the purpose of the sunsetting framework, as specified in section 49, has been realised
- factors, if any, that have limited the achievement of this purpose
- the extent to which the purpose of the sunsetting framework is still appropriate
- how performance against this purpose might be improved.
The review should assess the implementation and continuing relevance of recommendations 37, 38, 39 and 40 of the report of the 2008 Review of the Legislative Instruments Act 2003. This assessment should include consideration of:
- whether current practices satisfy recommendation 37, that the Attorney-General remind responsible Ministers:
- of the principle that legislative instruments remain in force for only as long as they are needed
- that all legislative instruments be subject to ongoing review and culling, and
- of the need to put timely arrangements in place to manage the commencement and ongoing operation of the sunsetting provisions
- whether agencies are taking sufficient and appropriate action to satisfy recommendation 38, that they should cull spent legislative instruments as soon as practicable and identify instruments that will need to be continued beyond their sunsetting date
- whether the present sunsetting period of 10 years remains appropriate and should be maintained (as foreshadowed in recommendation 39)
- whether legislative instruments that are exempt from sunsetting are being periodically reviewed as proposed by recommendation 40.
The review should consider the effectiveness of the implementation of recommendations 4.1 and 4.2 of the Productivity Commission's 2011 report Identifying and Evaluating Regulation Reforms, which sought to stagger the sunsetting of pre-2005 instruments, enable the packaging of related regulations for review, and establish clear and transparent processes for implementation of the sunsetting regime. In particular, the review should consider the implementation of those recommendations by the Legislative Instruments Amendment (Sunsetting Measures) Act 2012 and other policy and procedural developments and guides.
Having regard to the first two years of the practical operation of the sunsetting framework, the Committee should give particular consideration to:
- the operation of Division 1 (Automatic repeal) of Part 3 of Chapter 3 of the Legislation Act, in particular the timing of the automatic repeal of provisions under that Division
- the extent of the Attorney-General's discretion to defer the sunsetting day of an instrument under section 51(1)(c) of the Legislation Act
- the purpose of section 53 of the Legislation Act (Parliament may resolve that an instrument should continue in force for another 10-year period) and the extent to which that provision is still appropriate
- the scope of the existing exemptions from sunsetting provided for under section 54(1) of the Legislation Act and sections 11 and 12 of the Legislation (Exemptions and Other Matters) Regulation 2015 (the Exemptions Regulation)
- whether additional exemptions should be provided for under section 54(1) of the Legislation Act and sections 11 and 12 of the Exemptions Regulation, and
- the appropriate breadth of the sunsetting regime in terms of its scope of application.
The Sunsetting Review Committee will report by 1 October 2017.
Review of the Operation of the Sunsetting Provisions in the Legislation Act 2003 - Consultation paper
A consultation paper was released for public comment on 30 May 2017 and directly invited government and non-government stakeholders to comment.