Exemptions from disallowance and sunsetting [2024] AUSStaCSDLM 28 (7 February 2024)

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Chapter 6 :

Exemptions from disallowance and sunsetting

6.1 This Chapter lists the instruments which the committee has resolved to draw to the attention of the Senate under standing order 23(4) because they are exempt from disallowance and sunsetting and do not satisfy the committee's expectations in relation to the source and appropriateness of the exemptions following the committee's scrutiny under standing orders 23(4A) and 23(3)(k).

Exemptions from disallowance

6.2 On 16 June 2021, the Senate resolved that delegated legislation should be subject to disallowance to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances and any claim that circumstances justify exemption from disallowance will be subjected to rigorous scrutiny with the expectation that the claim will only be justified in rare cases.^[1]

6.3 Senate standing order 23(4A) provides that the committee may consider instruments that are not subject to disallowance, including whether it is appropriate for these instruments to be exempt from disallowance. Noting the Senate's concern about the exemption of delegated legislation from disallowance, this section identifies the instruments which do not satisfy the committee's expectations regarding the circumstances of their exemption from disallowance.

6.4 Subject to exceptional circumstances, the committee's expectations will not be met where the instrument:

• is exempt from disallowance under one of the broad classes of exemptions in section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015;^[2]

• is exempt from disallowance under the blanket exemption for instruments facilitating the establishment or operation of an intergovernmental body or scheme in section 44(1) of the Legislation Act 2003;^[3]

• overrides or modifies primary legislation;

• triggers, or is a precondition to, the imposition of custodial penalties or significant pecuniary penalties;

• restricts personal rights and liberties;

• facilitates the expenditure of public money, including Advance to the Finance Minister determinations; or

• otherwise contains a matter requiring parliamentary oversight.

6.5 To assess whether an instrument is appropriately exempt from disallowance, the committee expects that at a minimum, the explanatory statement will contain a statement that provides the source and the exceptional circumstances that justify the exemption from disallowance.

6.6 Further information about the committee's expectations regarding the exemption of delegated legislation from disallowance are contained in the committee's guidelines and the reports of its inquiry into the exemption of delegated legislation from parliamentary oversight.^[4]

Instruments which do not meet the committee's expectations

6.7 The following instruments do not meet the committee's expectations under standing order 23(4A):

Instrument	Source of exemption
Agricultural and Veterinary Chemicals (MRL Standard for Residues of Chemical Products) Amendment Instrument (No. 2) 2023 [F2023L01546]	Subsection 44(1) of the Legislation Act 2003
Commonwealth Securities (Treasury Portfolio Agency) (Consequential) Instrument 2023 [F2023L01701]	Section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015
Financial Sector (Collection of Data) (reporting standard) determination No. 132 of 2023 [F2023L01608]	Section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015
Financial Sector (Collection of Data) (reporting standard) determination No. 133 of 2023 [F2023L01606]	Section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015
Financial Sector (Collection of Data) (reporting standard) determination No. 134 of 2023 [F2023L01621]	Section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015
Financial Sector (Collection of Data) (reporting standard) determination No. 135 of 2023 [F2023L01616]	Section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015
Food Standards (Application A1264 – Food derived from drought-tolerant and herbicide-tolerant soybean line IND-00410-5) Variation [F2023L01562]	Subsection 44(1) of the Legislation Act 2003
Food Standards (Application A1265 – 2'-FL/DFL, LNT, 6'-SL sodium salt and 3'-SL sodium salt as nutritive substances in infant formula products) Variation [F2023L01561]	Subsection 44(1) of the Legislation Act 2003
Food Standards (Application A1266 – Endo-1,4-beta-xylanase from GM Trichoderma reesei (gene donor: Fusarium verticillioides) as a processing aid) Variation [F2023L01554]	Subsection 44(1) of the Legislation Act 2003
Food Standards (Proposal P1062 – Defining added sugars for claims) Variation [F2023L01624]	Subsection 44(1) of the Legislation Act 2003
Housing Australia Investment Mandate Amendment (Social Housing, Affordable Housing and Acute Housing Needs) Direction 2023 [F2023L01637]	Section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015
National Reconstruction Fund Corporation (Investment Mandate) Direction 2023 [F2023L01564]	Section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015
Northern Australia Infrastructure Facility Investment Mandate Direction 2023 [F2023L01671]	Section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015
Superannuation (prudential standard) determination No. 2 of 2023 [F2023L01528]	Section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015

Exemptions from sunsetting

6.8 Senate standing order 23(3)(k) requires the committee to scrutinise instruments which are exempt from the sunsetting provisions of the Legislation Act 2003 (the Legislation Act), including whether it is appropriate for these instruments to be exempt from sunsetting.

6.9 The sunsetting framework established under section 50 of the Legislation Act provides that all legislative instruments registered on the Federal Register of Legislation after 1 January 2005 are automatically repealed ten years after registration. Sunsetting provides the opportunity for Parliament (as well as ministers and agencies) to ensure that the content of delegated legislation remains appropriate, and for Parliament to maintain effective, regular oversight of delegated powers.

6.10 On 16 June 2021, the Senate resolved that delegated legislation should be subject to sunsetting to permit appropriate parliamentary scrutiny and oversight unless there are exceptional circumstances and any claim that circumstances justify exemption from sunsetting will be subjected to rigorous scrutiny with the expectation that the claim will only be justified in rare cases.^[5]

6.11 Where an instrument is exempt from sunsetting, Senate standing order 23(3)(k) requires the committee to scrutinise each instrument as to whether the exemption is appropriate. Noting the Senate's concern about the exemption of delegated legislation from sunsetting, this section identifies instruments which do not satisfy the committee's expectations regarding the appropriateness of their exemption from sunsetting.

6.12 Subject to exceptional circumstances, the committee's expectations will not be met where the instrument:

• is exempt from sunsetting under one of the broad classes of exemptions in section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015;^[6]

• is exempt from sunsetting under the blanket exemption of instruments facilitating the establishment or operation of an intergovernmental body or scheme in section 54(1) of the Legislation Act 2003;^[7]

• overrides or modifies primary legislation;

• triggers, or is a precondition to, the imposition of custodial penalties or significant pecuniary penalties;

• restricts personal rights and liberties;

• facilitates the expenditure of public money on an ongoing basis; or

• otherwise contains a matter requiring parliamentary oversight.

6.13 To assess whether an instrument is appropriately exempt from sunsetting, the committee expects that at a minimum, the explanatory statement will contain a statement that provides the source and the exceptional circumstances that justify the exemption from sunsetting.

6.14 Further information about the committee's expectations about the exemption of delegated legislation from sunsetting are contained in the committee's guidelines and the reports of its inquiry into the exemption of delegated legislation from parliamentary oversight.^[8]

Instruments which do not meet the committee's expectations

6.15 Instruments listed below do not meet the committee's expectations under standing order 23(3)(k).

Instrument	Source of exemption
Agricultural and Veterinary Chemicals (MRL Standard for Residues of Chemical Products) Amendment Instrument (No. 2) 2023 [F2023L01546]	Subsection 54(1) of the Legislation Act 2003
Charter of the United Nations (Listed Persons and Entities) Amendment (No. 3) Instrument 2023 [F2023L01524]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
Commonwealth Securities (Treasury Portfolio Agency) (Consequential) Instrument 2023 [F2023L01701]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
Federal Financial Relations (General Purpose Financial Assistance—2023-24 Payment No. 5) Determination 2023 [F2023L01521]	Subsection 54(1) of the Legislation Act 2003
Federal Financial Relations (General Purpose Financial Assistance—2023-24 Payment No. 6) Determination 2023 [F2023L01694]	Subsection 54(1) of the Legislation Act 2003
Federal Financial Relations (National Health Reform Payments for 2022-23) Determination 2023 [F2023L01631]	Subsection 54(1) of the Legislation Act 2003
Federal Financial Relations (National Partnership Payments—2023-24 Payment No. 6) Determination 2023 [F2023L01618]	Subsection 54(1) of the Legislation Act 2003
Federal Financial Relations (National Specific Purpose Payments for 2022-23) Determination 2023 [F2023L01610]	Subsection 54(1) of the Legislation Act 2003
Financial Sector (Collection of Data) (reporting standard) determination No. 132 of 2023 [F2023L01608]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
Financial Sector (Collection of Data) (reporting standard) determination No. 133 of 2023 [F2023L01606]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
Financial Sector (Collection of Data) (reporting standard) determination No. 134 of 2023 [F2023L01621]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
Financial Sector (Collection of Data) (reporting standard) determination No. 135 of 2023 [F2023L01616]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
Food Standards (Application A1264 – Food derived from drought-tolerant and herbicide-tolerant soybean line IND-00410-5) Variation [F2023L01562]	Subsection 54(1) of the Legislation Act 2003
Food Standards (Application A1265 – 2'-FL/DFL, LNT, 6'-SL sodium salt and 3'-SL sodium salt as nutritive substances in infant formula products) Variation [F2023L01561]	Subsection 54(1) of the Legislation Act 2003
Food Standards (Application A1266 – Endo-1,4-beta-xylanase from GM Trichoderma reesei (gene donor: Fusarium verticillioides) as a processing aid) Variation [F2023L01554]	Subsection 54(1) of the Legislation Act 2003
Food Standards (Proposal P1062 – Defining added sugars for claims) Variation [F2023L01624]	Subsection 54(1) of the Legislation Act 2003
Marine Order 12 (Construction — subdivision and stability, machinery and electrical installations) 2023 [F2023L01541]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
Marine Order 71 (Masters and deck officers) 2023 [F2023L01533]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
National Reconstruction Fund Corporation (Investment Mandate) Direction 2023 [F2023L01564]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
Northern Australia Infrastructure Facility Investment Mandate Direction 2023 [F2023L01671]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015
Superannuation (prudential standard) determination No. 2 of 2023 [F2023L01528]	Section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015

Senator the Hon Linda Reynolds CSC

Deputy Chair

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^[1] For further information on the resolutions adopted by the Senate on 16 June 2021, see the committee's website, Resolutions relating to oversight of delegated legislation.

^[2] Items 1 to 4 of section 9 of the Legislation (Exemptions and Other Matters) Regulation 2015 exempt the following classes of instruments from disallowance: instruments requiring the approval of either or both Houses of Parliament; instruments that are directions by a minister to any person or body; instruments (other than a regulation) relating to superannuation; and instruments made under annual Appropriation Acts.

^[3] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report (March 2021) pp. 50–53 and 106–107.

^[4] Senate Standing Committee for the Scrutiny of Delegated Legislation, Guidelines, 2^nd edition (February 2022) pp. 47–49; Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report (December 2020) pp. 61–72; Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report (March 2021) pp. 99–123.

^[5] For further information on the resolutions adopted by the Senate on 16 June 2021, see the committee's website, Resolutions relating to oversight of delegated legislation.

^[6] Items 1 to 7 of section 11 of the Legislation (Exemptions and Other Matters) Regulation 2015 exempt the following classes of instruments from sunsetting: instruments giving effect to international obligations of Australia; instruments that establish a body having power to enter into contracts; instruments that are directions by a minister to any person or body; instruments which confer power on a self-governing Territory; ordinances made under a power delegated in an Act providing for the government of a non-self-governing Territory; instruments (other than a regulation) relating to superannuation; and instruments made under annual Appropriation Acts.

^[7] Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report (March 2021) pp. 50–53 and 106–107.

^[8] Senate Standing Committee for the Scrutiny of Delegated Legislation, Guidelines, 2^nd edition (February 2022) pp. 34–35; Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Interim report (December 2020) pp. 89–90; Senate Standing Committee for the Scrutiny of Delegated Legislation, Inquiry into the exemption of delegated legislation from parliamentary oversight: Final report (March 2021) pp. 87–88 and 99–123.