Sunsetting legislative instruments
Under the Legislation Act 2003, all legislative instruments are repealed automatically, or ‘sunset’, after 10 years, unless we take action to preserve their effect by remaking them.
Purpose of sunsetting
Sunsetting ensures that legislative instruments are kept up to date and only remain in force while they are fit for purpose, necessary and relevant.
Instruments subject to sunsetting
Legislative instruments made by ASIC under the Corporations Act 2001 and the National Consumer Credit Protection Act 2009 must be remade before their sunset date if their effect is to be preserved.
Certain legislative instruments are exempt from the sunsetting provisions – for example, ASIC market integrity rules are exempt under s798G of the Corporations Act.
Individual relief given by ASIC is not subject to automatic sunsetting.
When will ASIC’s legislative instruments start to sunset?
A legislative instrument sunsets following the tenth anniversary of its registration on the Federal Register of Legislation (FRL) at http://www.legislation.gov.au
Legislative instruments sunset on either 1 April or 1 October – whichever date occurs first on or after its tenth anniversary.
There are over 300 ASIC legislative instruments in operation: ASIC’s class orders began to sunset on 1 April 2015. Further rounds are occurring at six-monthly intervals. (Note that prior to 2015 ASIC legislative instruments were referred to as class orders.)
We will consult affected stakeholders on all legislative instruments that have more than a minor or machinery regulatory impact.
We expect that many of our legislative instruments will be remade substantially in their existing form because they are already subject to continuous review, and continue to do necessary or useful work.
To allow the legislative instrument to automatically expire may cause disruption or detriment to industry, investors and stakeholders who depend on it. Nonetheless, our view in each case will be informed by consultation and by industry feedback.
The consultation process
Before the sunset date, we will:
- review the legislative instrument to determine whether regulation of the matters covered is still required and, if so, form a preliminary view about whether the instrument is operating effectively and efficiently
- consult on our proposal to remake the legislative instrument and any proposed changes
- prepare a Regulation Impact Statement (RIS) if the legislative instrument will have a significant regulatory impact and we are proposing substantive changes
- decide on a final policy position based on feedback from consultation and the RIS (if a RIS is required), and
- make (or remake) the legislative instrument and register it on FRL.
Regulation Impact Statements
Generally, a RIS is required for new and amended policy that has a significant regulatory impact: see the Australian Government Guide to Regulation.
We will review, including by public consultation, all legislative instruments that have a significant regulatory impact before the scheduled sunset date. Where our review finds that a legislative instrument is not operating effectively and efficiently, we will prepare a RIS to assess our proposed changes. Where the legislative instrument is operating effectively and efficiently, we will remake the instrument without substantive changes.
Continuous reviews of our legislative instruments
Sunsetting is supplementary to, and not a substitute for, the ordinary processes by which we keep our legislative instruments under review.
The fact that a legislative instrument is substantially changed or not substantially changed in a sunsetting round does not mean that it may not be reviewed and altered again at a later date if necessary.