sunsetting review submission - department of ... · infrastructure and regional development...

Infrastructure and Regional Development Portfolio (excluding CASA)

Responses to Questions from Consultation Paper 2017 Review of the

Sunsetting Framework under the Legislation Act 2003

PLEASE NOTE:

• •

1. To what extent has the purpose of the sunsetting framework been realised, and is that orn'"'"'"" still

Local Government and Territories response: The purpose of the sunsetting framework under section 49 of the Legislation Act 2003 has been realised in that it is a mechanism for the Australian Government to deliver clearer laws and align existing legislation with current government policy. It also ensures that legislative instruments are kept up to date and only remain in force for so long as they are needed. There is uncertainty whether it serves as a mechanism for the Australian Government to implement policies to reduce red tape. (See the Attorney-General's Department (AGO) Guide to Managing Sunsetting of Legislative Instruments 2016, page 3).

other issues or concerns about the sunsettin framework?

Local Government and Territories response: The process is resource intensive. In addition, the responsible agency is required to closely monitor all legislative instruments to ensure an instrument is not repealed by sunsetting without review or the law being extended. As expanded upon for questions 27 and 28, the exemption criteria are ambiguous and create significant administrative burden in attempting to determine if an instrument qualifies.

Local Government and Territories response: Yes. In line with the Productivity Commission's 2008 Review recommendation, the 1 0-year sunsetting period should be maintained. Given the review of legislative instruments is generally undertaken several years in advance of sunsetting dates, a shorter sunsetting cycle would impose an increased administrative burden on agencies.

4. What effect has the sunsetting framework had on departmental and agency processes for conducti fit for reviews of le ative instruments?

of 10




Local Government and Territories response: The framework facilitates and mandates engagement in legislative reviews, which complements existing legislative monitoring and review undertaken by the Department.

Local Government and Territories response: Yes. As there are eight reference guides to refer to, inconsistency is inevitable (See the AGD Guide to Managing Sunsetting of Legislative Instruments 2016, page 4). A comprehensive user-friendly guide that covers the holistic review process would assist agencies and Departments in navigating through the sunsetting regime. The policy could include examples of review documentation, such as Explanatory Memorandums, consultation strategies and questions, the Senate Standing Committee on Regulations and Ordinances principles, and the roles and responsibilities of relevant agencies. Any policy guidance should balance consistency and quality with needed flexibility.

Surface Transport Policy response: It would be useful to develop whole-of-government policy guidance on the processes for managing sunsetting legislation. There is currently no consistency in the approach to sunsetting across, or within, Departments. The legislated obligations and responsibilities of the line area are unclear under the current regime, particularly with regard to the requirements for conducting a fit-for-purpose review.

6. Is there a need to clarify the roles and responsibilities of different Commonwealth departments and agencies in relation to the sunsetting framework? Local Government and Territories response: Yes. Departments and agencies would benefit from understanding their role and the role of relevant agencies in relation to the framework.

of 10




7. Is there a need to develop policy or legislative guidance on undertaking reviews of sunsettin ative instruments?

Local Government and Territories response: The AGD could consider consolidating guidance materials from multiple sources into one. This can ensure consistency in the guidance provided by AGD, Office of Best Practice Regulation and Office of Parliamentary Counsel (OPC). In the guidance document, there is a need for detail guidance on how to assess regulatory impact of the instruments, such as factors that need to be taken into account. It would also be helpful to have a flowchart of the review process outlining the steps involved. Any policy or legislative guidance should be descriptive rather than prescriptive.

8. What (if anything) could and should be done to streamline the deferral process? Local Government and Territories response: Criteria in section 51 could be more flexible to accommodate unforeseen circumstances that Departments and agencies may encounter during the review process.

9. What (if any) changes should be made to the criteria in section 51 to provide greater cia and ensure closer a nment with the of the s framework?

of 10




Local Government and Territories response: It would be helpful to have an explanation of each criteria in the guidance document. For example, there is currently no guidance on how to satisfy those criteria.

10. Should the Attorney-General have the power to defer the sunsetting of an instrument for more than 12 months?

Local Government and Territories response: Yes, in appropriate circumstances.

11. To what extent is the prorogation of Parliament an appropriate criterion to justify the deferral of the sunsettin of an instrument?

Local Government and Territories response: This would be an appropriate criterion due to the flow on issues with the timing of reviews and the need to engage in the legislative process.

12. Should section 51 be amended to replace all references to 'cease to have effect' with

Local Government and Territories response: Yes. However, section 51 has only one reference to 'ceases to be in force' rather than 'cease to have effect'.

13. To what extent is the level of discretion available to the Attorney-General in granting deferrals of sunsetti ·ate?

of 10




Local Government and Territories response: The Attorney-General could have greater discretion in granting deferrals given the criteria in section 51 may not allow a deferral in circumstances where one is required.

Local Government and Territories response: Yes, in certain circumstances delegation of the power to grant deferrals would minimise potential delays in approval and administrative processes.

16. Would it be appropriate for more than one deferral of sunsetting to be granted for the same instrument?

Local Government and Territories response: Yes, in defined exceptional circumstances.

17. To what extent has section 51 A encouraged thematic reviews of related legislative instruments? What factors, if any, have limited the achievement of this purpose? Local Government and Territories response: Section 51 A enables an effective and efficient way to conduct a review of legislative instruments as it provides opportunities to examine related instruments to ensure consistency. Guidance on how to satisfy the criteria ins 51 A and clarity on what is meant by 'facilitate the undertaking of the review and the implementation of its findings' would be helpful.

Departments and agencies applying for thematic reviews should also be encouraged to factor approval and drafting processes into their timelines.

Local Government and Territories response: No. It is not necessary for thematic review applications to be subject to disallowance because this is not an actual review but a process to align sunset dates and faci litate review of related instruments. Tabling the declaration would delay the review process.

of 10




19. To what extent would including a requirement for a statement of reasons, similar to the requirement for certificates of deferral under paragraph 51(2)(a), better achieve the overarching purposes of the sunsetting framework? Local Government and Territories response: No. Deferrals and thematic reviews are conceptually different. A statement of reasons should not be required for a thematic review as a thematic review, if approved, is an appropriate mechanism of action.

20. Should section 51 A allow the Attorney-General to align the sunsetting dates of instruments that have been the subject of a completed review, in order to facilitate the

lamentation of the find in of that review?

Local Government and Territories response: Yes. Departments and agencies may determine an instrument is suitable for thematic review after an individual review has been conducted.

21. Is there a need for more policy guidance on the types of thematic review that may be ate for the of section 51A?

Local Government and Territories response: Yes. Clarification on determining whether a thematic review would facilitate the undertaking of the review and the implementation of its findings would be helpful to Departments and agencies.

22. Should the Attorney-General have the power to 'align', to a later date, the sunsetting dates of instruments that already have the same scheduled sunsetting date? To what extent would this the ose of section 51 A?

Local Government and Territories response: No. There is little additional value in utilising thematic review for instruments that already have the same sunsetting date, other than providing an explicit mandate to review related instruments at the same time.

23. How effectively does tabling of the sunsetting lists support departments and agencies "'"','"" the sunsetti of the ative instruments for which ible?

of 10




Local Government and Territories response: Tabling the sunsetting list alerts the relevant Departments and agencies of the instruments subject to sunsetting. The Federal Register of Legislation provides a useful tool that updates the status of the legislative instruments. It allows the Departments to monitor the instruments. However, an issue may be the reliance on Departments to make the list available to portfolio agencies.

24. To what extent is parliamentary roll over still a necessary and appropriate safeguard f f th tf f I . I f . t t? I I I I

25. Is it appropriate that the availability of parliamentary roll over of a legislative instrument relies upon that instrument's appearance in a sunsetting list or a certificate of deferral and that there is a 6-month time limit on moving such a resolution?

27. To what extent does the scope of the current sunsetting exemptions achieve the broader of the s framework?

Local Government and Territories response: The provisions in section 11 of Legislation (Exemptions and Other Matters) Regulation 2015 (LEOMR) are practically too ambiguous and cannot be relied upon to provide surety that an instrument would be exempt. The provisions can create difficulties in determining whether a particular instrument falls within one of the classes and is therefore exempt from sunsetting.

28. Is there an appropriate balance between the operation of the exemptions provisions and the administrative burden for the ible

of 10




Local Government and Territories response: There is a significant administrative burden for the responsible agency in attempting to determine if an instrument is exempt, given that the exemption categories are ambiguous.

29. To what extent is section 54 still appropriate, having regard to the broader objectives of the sunsetting framework? Nil response

30. Should subsection 54(1) be amended to include intergovernmental bodies or schemes involving the Territories, not just the States? Local Government and Territories response: This subsection should also apply to territories. The legislative instruments that govern the territories have the same purpose and function as those governing the states. Excluding instruments relating to the territories, which would otherwise fall within the scope of this provision, would undermine the purpose of those legislative instruments.

31. Should subsection 54(1) be moved from the Legislation Act and inserted into LEOMR? Local Government and Territories response: All provisions that provide for exemption should be located in the one instrument.

32. Are the five policy criteria still appropriate and aligned to the overall objectives of the sunsettin framework?

Local Government and Territories response: Guidance/understanding surrounding the five policy criteria and what does and does not qualify under the criteria could be increased to better meet the overall objectives of the framework.

33. Should the criteria for granting specific exemptions from sunsetting be set out in I rather than

of 10




Local Government and Territories response: It is essential that the legislation is clear and definitive. Additional support material beyond this is welcome.

34. To what extent are the classes of instruments set out in section 11 of the LEOMR still appropriate, having regard to the broader of the sunsetti Aviation and

Local Government and Territories response: The classes of instruments set out in section 11 of the LEOMR require review in terms of both appropriateness and clarity.

35. Should notifiable instruments be subject to the sunsetting framework, or alternatively a modified automatic or bulk ?

of 10




36. Is there a need for a formal, established mechanism by which notifiable instruments can be amended, replaced, repealed, superseded or simply removed from the Notifiable Instruments

37: How useful is the sunsetting information provided on the FRL? What could be done to enhance this information?

38: To what extent are the automatic repeal provisions appropriate? Nil response

39: Should Division 1 of Part 3 of Chapter 3 be amended to increase the time between the making of a purely amending or commencement instrument and its automatic repeal? Nil response

of 10

sunsetting review submission - department of ... · infrastructure and regional development...

Documents