Repeal, Disallowance and Sunsetting
Once legislation has done its work or is no longer required it is usually repealed. Repealing redundant legislation also makes it easier to find and comply with in force law.
Repealing a law or a provision of a law does not usually undo its effect, revive any other law that was in force or existence when it was made or change the legality of anything done under or against it, unless an explicit provision is made for this to occur.
If an Act of the Parliament is repealed, any instruments made under it will generally lapse unless explicit provision is made for them to continue in force.
Under Chapter 3, Part 3, Division 1 of the Legislation Act 2003, new legislative instruments and notifiable instruments, and provisions of instruments are repealed automatically as soon as they have operated in full, if they have the sole legal effect of:
- commencing some or all of an Act or instrument; or
- amending or repealing one or more instruments.
An instrument can still be repealed automatically if it contains provisions of a non-operative nature (often under headings such as title, commencement, authority, and definitions). However, automatic repeal cannot occur if an instrument contains any of the following, unless they are part of the text being added to another instrument by amendment:
- a saving provisions such as "Parts X and Y of the ABC Regulation continue to apply in relation to...";
- a transitional provision such as "If a person has lodged a claim before the commencement of this instrument and..., the claim is taken to have been...";
- an application provision such as "The amendments made by Schedule X apply / do not apply / only apply if...";
- any other substantive provision, such as a requirement to notify or gazette certain information.
Disallowance is a special form of repeal: it only applies to new legislative instruments, it is initiated by the Parliament not the usual rule-maker, and its consequences can vary. For example, if a legislative instrument is disallowed by either House of the Parliament, or is not tabled as required, then:
- the instrument ceases to have effect immediately;
- this may have the effect of reviving previous laws from that time onwards, if they have not sunsetted in the meantime;
- the rule-maker must generally wait 6 months before making another instrument that is the same in substance as the earlier one.
Disallowance can still occur even if an instrument is no longer classified as in force law, for example, because it has already operated in full and been subject to automatic repeal. See further information about parliamentary scrutiny and disallowance in Chapter 3, Part 2 of the Legislation Act 2003.
Sunsetting involves setting a date for the automatic repeal of legislation. A sunsetting date may be set by a sunset provision within a law itself or in another law. Legislative instruments are automatically repealed after a fixed period of time (subject to some exceptions). The default sunsetting rules are set out in Chapter 3, Part 4 of the Legislation Act 2003. Under these default rules:
- legislative instruments sunset on set dates, either 1 April or 1 October beginning on or after the tenth anniversary of their registration; and
- a list of sunsetting instruments must be tabled in each House of Parliament 18 months before each sunset date.
For an up-to-date list of all the instruments due to sunset please refer to the Sunsetting page for a list of Due to Sunset, and Exempt from Sunsetting. Copies of lists tabled to date are on the Sunsetting List page on the Register.
Although it is possible to change an instrument's sunset date, or to give an instrument a permanent exemption from sunsetting, this is only practicable in limited circumstances and requires the consent of the Attorney-General, the Parliament, or both.
Amending an instrument does not reset its sunset date and, if an instrument is required beyond its sunset date, the relevant rule-maker will generally need to make a replacement instrument, and follow the same basic rules on consultation and regulatory impact assessment as for a new instrument.
A rule-maker who is authorised to make an instrument under a particular provision can generally repeal any instrument made under the same provision, even if it was made by a different person. This generally involves making a new instrument of repeal, or amending an existing instrument to include a self-repealing provision.
Legislative instruments can also be repealed in bulk by means of a regulation made under section 48E of the Legislation Act 2003. This mechanism can be used to repeal many different types of instruments at once, including instruments that are exempt from sunsetting, but can only be used if the Attorney-General is satisfied that the instruments to be repealed are no longer required.