The ACMA administers various Acts of Parliament under which we have many responsibilities for media and communications regulation. In meeting those responsibilities, we have been required to make several hundred legislative instruments. Each of those instruments deals with a particular topic that is relevant to a particular industry or industry sector and/or to particular citizens and consumers.
Under Part 4 of Chapter 3 of the Legislative Act 2003 (the LA), most legislative instruments 'sunset' (that is, they are automatically repealed) on 1 April or 1 October that first occurs 10 years after they are registered. This is an automatic process applying to most legislative instruments regardless of their particular content.
What is the purpose of sunsetting?
The purpose of sunsetting is explained by section 49 of the LA, that…legislative instruments are kept up to date and only remain in force for so long as they are needed.'
The idea is that if the instrument is automatically repealed, the rule-maker will be compelled to consider whether it continues to be necessary and, if so, will remake it in an updated form.
Sunsetting supplements the ordinary rules of good administration and law-making, which are that laws should:
- only be made when they are necessary
- should be kept up-to-date
- should be repealed when they are no longer necessary.
The ACMA follows those ordinary principles as a routine matter, and if you visit this website on a regular basis, you will see that we always have a large number of reviews of our policies and rules under way at any time. Those reviews are enriched by your feedback, which we always seek and value, and they often result in adjustment in the terms of our rules and in their revocation when they are no longer required.
Does sunsetting apply to all ACMA legislative instruments?
No. Some ACMA legislative instruments are exempt from the sunsetting process, including:
- licence area plans made under the Broadcasting Services Act 1992 (the BSA)
- television licence area plans made under the BSA
- submarine cable protection zone declarations made under the Telecommunications Act 1997.
What is involved in sunsetting?
For each legislative instrument, the sunset obligation requires us to:
- access the instrument to see if it is liable to be remade and, if so, in what form
- develop any policy changes and consult on them, if policy changes are to be made
- if no significant changes are considered necessary, and the preliminary view is that the instrument is working efficiently and effectively, consult on that preliminary view
- undertake the regulatory impact assessment processes required by the Office of Best Practice Regulation
- assess any feedback from the consultation
- redraft the instrument
- remake the instrument
- register the instrument on the Federal Register of Legislation.1
All of this must occur before the relevant sunset deadline.
We expect that many of our legislative instruments will be remade substantially in their existing form. As mentioned above, they are kept under continuous review. Consequently, an instrument is likely to be in a form that has been reviewed from time to time, and that continues to do necessary or useful work in appropriate terms. To allow the instrument to automatically expire would usually cause disruption or detriment to the relevant industry, consumer and/or citizen stakeholders who otherwise are well used to it and who depend on it. Nonetheless, our view in each cause will be informed by consultation and by your feedback. And, in the less usual case, where an instrument no longer has a useful role to play, it will not be remade.
Your feedback is important
In view of the fact that many of the relevant rules and regulations are likely to be recommended for remaking in their current form, we propose, so far as possible, to keep our consultation papers brief and to the point. We hope this approach will assist you to give us your feedback where the particular topic is of interest to you.
Finally, we want to note again, that sunsetting is supplementary to, and not a substitute for, the ordinary processes by which we keep our legislative instruments under review. The fact that an instrument is substantially changed or not substantially changed in a sunsetting round does not mean that it may not be reviewed and altered thereafter, even within a short interval thereafter. Change within the media and communications industries that we regulate is continuous and rapid, and our regulatory arrangements need to keep pace. To the full extent of our available resources, we intend to ensure that our rules and regulations are kept up-to-date, and only remain in force for so long as they are necessary.
We look forward to your feedback on sunsetting consultation papers in the future.
1 Due to certain changes made by the Acts and Instruments (Framework Reform) Act 2015, which commenced on 5 March 2016, legislative instruments are now registered on the Federal Register of Legislation (the Legislation Register). Before 5 March 2016, legislative instruments were registered on the Federal Register of Legislative Instruments (FRLI). The content of FRLI now forms part of the Legislation Register. An instrument that was registered on FRLI is taken to be registered on the Legislation Register.