Subordinate Legislation Act 1992

Subordinate Legislation Act 1992

An Act relating to the making of certain subordinate legislation

Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:

PART 1 - Preliminary

1.   Short title

This Act may be cited as the Subordinate Legislation Act 1992 .

2.   Commencement

This Act commences on a day to be proclaimed.

3.   Interpretation

[Section 3 Amended by No. 77 of 1994, s. 4 ]

(1)  In this Act –

Consumer Price Index means the Consumer Price Index: All Groups Index for Hobart published by the Australian Statistician under the authority of the Census and Statistics Act 1905 of the Commonwealth;

responsible Minister, in connection with subordinate legislation, means the Minister administering the Act under which the subordinate legislation is or is proposed to be made;

Secretary means Secretary of the Department;

subordinate legislation means –

(a) a regulation, rule or by-law that is –

(i) made by the Governor; or

(ii) made by a person or body other than the Governor but required by law to be approved, confirmed or consented to by the Governor; or

(b) any other instrument of a legislative character that is –

(i) made under the authority of an Act; and

(ii) declared by the Treasurer under subsection (2) to be subordinate legislation for the purposes of this Act;

Subordinate Legislation Committee means the committee for the time being constituted under the Subordinate Legislation Committee Act 1969 .

(2)  [Section 3 Subsection (2) added by No. 77 of 1994, s. 4 ]The Treasurer, by notice published in the Gazette, may declare an instrument of a legislative character that is made under the authority of an Act to be subordinate legislation for the purposes of this Act.

(3)  [Section 3 Subsection (3) added by No. 77 of 1994, s. 4 ]A notice under subsection (2) is not a statutory rule within the meaning of the Rules Publication Act 1953 .

PART 2 - Requirements regarding the making of subordinate legislation

3A.   Guidelines

[Section 3A Inserted by No. 77 of 1994, s. 5 ]

(1)  The Treasurer, by notice in the Gazette, may issue guidelines for the preparation of subordinate legislation.

(2)  A notice under subsection (1) may contain such guidelines as the Treasurer considers necessary or expedient for the purposes of ensuring that –

(a) the objectives of proposed subordinate legislation are clearly formulated and that those objectives are –

(i) reasonable and appropriate; and

(ii) in accordance with the objectives, principles, spirit and intent of the Act which would authorize the proposed subordinate legislation to be made; and

(iii) not inconsistent with the objectives of other Acts, subordinate legislation or government policies; and

(b) the advantages and disadvantages of the proposed subordinate legislation are properly identified and considered; and

(c) the impact of the proposed subordinate legislation on competition is properly identified and considered; and

(d) alternative options for achieving the objectives of the proposed subordinate legislation, and the option of not proceeding with any legislative action, are properly considered; and

(e) the preparation of subordinate legislation is effectively co-ordinated; and

(f) the procedures for the preparation of subordinate legislation are, as far as possible, standardized.

(3)  A notice under subsection (1) is not a statutory rule within the meaning of the Rules Publication Act 1953 .

(4)  The Treasurer may from time to time rescind guidelines issued under subsection (1) and issue new guidelines under that subsection.

4.   Compliance with guidelines

[Section 4 Amended by No. 77 of 1994, s. 6 ]The responsible Minister must ensure that before subordinate legislation is made the guidelines issued under section 3A are complied with so far as is reasonably practicable.

5.   Regulatory impact statements

(1)  [Section 5 Subsection (1) amended by No. 77 of 1994, s. 7 ]The responsible Minister must ensure that before subordinate legislation is made a regulatory impact statement complying with Schedule 2 is prepared in connection with those parts of the proposed subordinate legislation which would impose a significant burden, cost or disadvantage on any sector of the public.

(1A)  [Section 5 Subsection (1A) inserted by No. 77 of 1994, s. 7 ]The question of whether any part of proposed subordinate legislation would or would not impose a significant burden, cost or disadvantage on any sector of the public is to be determined by the Secretary after considering the advice of the responsible Department in relation to the Act which would authorize the proposed subordinate legislation to be made.

(1B)  [Section 5 Subsection (1B) inserted by No. 77 of 1994, s. 7 ]The Secretary, on making a determination under subsection (1A) , must provide a certificate setting out particulars of the determination to the responsible Minister.

(1C)  [Section 5 Subsection (1C) inserted by No. 77 of 1994, s. 7 ]A determination of the Secretary under subsection (1A) is conclusive.

(1D)  [Section 5 Subsection (1D) inserted by No. 77 of 1994, s. 7 ]If it is necessary to prepare a regulatory impact statement in respect of proposed subordinate legislation, the responsible Minister must, after the statement is prepared, obtain a certificate from the Secretary in respect of the statement certifying that –

(a) it complies with the requirements of Schedule 2 ; and

(b) the nature and extent of the consultation proposed to be undertaken pursuant to subsection (2) is appropriate.

(2)  [Section 5 Subsection (2) amended by No. 77 of 1994, s. 7 ]If it is necessary to prepare a regulatory impact statement in respect of proposed subordinate legislation, the responsible Minister must, subject to subsection (2A) , ensure that before the proposed subordinate legislation is made –

(a) a notice is published in the Gazette and in at least 3 daily newspapers published and circulated generally throughout Tasmania –

(i) stating the objects of the proposed subordinate legislation; and

(ii) advising where a copy of the regulatory impact statement may be obtained or inspected; and

(iii) advising where a copy of the proposed subordinate legislation may be obtained or inspected; and

(iv) inviting comments and submissions within a specified time, but not less than 21 days from publication of the notice; and

(b) consultations take place with appropriate representatives of consumers, the public, relevant interest groups, and any sector of industry or commerce, likely to be affected by the proposed subordinate legislation; and

(c) all comments and submissions received are appropriately considered.

(2A)  [Section 5 Subsection (2A) inserted by No. 77 of 1994, s. 7 ]The responsible Minister must not take the action referred to in subsection (2) in respect of proposed subordinate legislation before obtaining the certificate referred to in subsection (1D) .

(3)  [Section 5 Subsection (3) amended by No. 77 of 1994, s. 7 ]For the purposes of subsection (2) , the nature and extent of the consultation regarding the proposal is to be commensurate with the impact likely to arise for consumers, the public, relevant interest groups, and any sector of industry or commerce, from the making of the subordinate legislation.

6.   Regulatory impact statements not necessary in certain cases

[Section 6 Amended by No. 77 of 1994, s. 8 ][Section 6 Amended by No. 20 of 1995, s. 3 and Sched. 1 ]The responsible Minister need not comply with sections 4 and 5 if –

(a) the Secretary certifies in writing that the proposed subordinate legislation comprises or relates to matters set out in Part 1 of Schedule 3 or comes within any of the categories set out in Part 2 of that Schedule; or

(b) the Treasurer certifies in writing that, in his or her opinion in the special circumstances of the case, the public interest requires that the proposed subordinate legislation should be made without complying with sections 4 and 5 ; or

(c) the person or body that would be responsible to the responsible Minister for administering the proposed subordinate legislation is a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995 and the Secretary certifies in writing that –

(i) the proposed subordinate legislation exclusively concerns the setting of fees, charges or tariffs or other commercial operations of that Government Business Enterprise; and

(ii) the proposed subordinate legislation does not concern the public regulatory functions or powers or the administrative operations of that Government Business Enterprise; and

(iii) the Secretary is satisfied that the commercial operations of that Government Business Enterprise would be impeded or its commercial efficiency diminished if the Minister were to comply with sections 4 and 5 .

7.   Examination of proposed subordinate legislation

(1)  In this section, relevant Act means the Act under which it is intended to make the proposed subordinate legislation.

(2)  Proposed subordinate legislation must be submitted to the Chief Parliamentary Counsel for advice as to whether it –

(a) appears to be within the powers conferred by the relevant Act; and

(b) appears without clear and express authority being conferred by the relevant Act –

(i) to have a retrospective effect; or

(ii) to impose a tax, fee, fine, imprisonment or other penalty; or

(iii) to sub-delegate powers delegated by the relevant Act; and

(c) appears to be within the general objectives of the relevant Act; and

(d) is expressed in as clear and unambiguous language as is reasonably possible.

8.   Requirements before making subordinate legislation

[Section 8 Amended by No. 77 of 1994, s. 9 ]Proposed subordinate legislation must not be submitted for making by the Governor, or for the approval, confirmation or consent of the Governor, unless there is submitted with the proposed subordinate legislation the advice given by the Chief Parliamentary Counsel under section 7 and –

(a) if a certificate has been issued under section 6 – that certificate; or

(b) if no certificate has been issued under section 6 and it was not necessary to prepare a regulatory impact statement – a certificate of the responsible Minister certifying that section 4 has been complied with; or

(c) if no certificate has been issued under section 6 and it was necessary to prepare a regulatory impact statement – the certificate of the Secretary under section 5 (1D) .

9.   Certain documents to be sent to Subordinate Legislation Committee

(1)  [Section 9 Subsection (1) substituted by No. 77 of 1994, s. 10 ]In this section, subordinate legislation does not include an instrument referred to in paragraph (b) of the definition of subordinate legislation in section 3 .

(1A)  [Section 9 Subsection (1A) inserted by No. 77 of 1994, s. 10 ]If subordinate legislation is made the responsible Minister must send to the Subordinate Legislation Committee a copy of the advice given by the Chief Parliamentary Counsel under section 7 and –

(a) if a certificate has been issued under section 6 – a copy of that certificate; or

(b) if no certificate has been issued under section 6 and it was not necessary to prepare a regulatory impact statement – a copy of the certificate of the responsible Minister certifying that section 4 has been complied with; or

(c) if no certificate has been issued under section 6 and it was necessary to prepare a regulatory impact statement – a copy of the certificate of the Secretary under section 5 (1D) together with –

(i) a copy of the regulatory impact statement; and

(ii) a copy of the comments and submissions, if any, received pursuant to section 5 (2) (a) (iv) .

(2)  The documents referred to in subsection (1) must be sent to the Subordinate Legislation Committee –

(a) within 7 days of the subordinate legislation, or notification of its making, being published in the Gazette; or

(b) if the subordinate legislation, or notification of its making, is not required to be published in the Gazette, within 7 days of the subordinate legislation being made.

10.   Compliance with Part

(1)  A failure to comply with a provision of this Part does not affect the validity of subordinate legislation.

(2)  The provisions of this Part regarding the requirements to be complied with before subordinate legislation is made, approved, confirmed or consented to are in addition to, and do not affect, the provisions of any other Act.

PART 3 - Staged repeal of subordinate legislation

11.   Staged repeal of subordinate legislation

(1)  [Section 11 Subsection (1) substituted by No. 77 of 1994, s. 11 ]Subject to subsection (5) , unless it sooner ceases to be in force, subordinate legislation made before a date specified in Column 1 below is repealed on the date specified opposite in Column 2 –

Column 1	Column 2
1 January 1954	1 January 1996
1 January 1964	1 January 1997
1 January 1967	1 January 1998
1 January 1973	1 January 1999
1 January 1977	1 January 2000
1 January 1981	1 January 2001
1 January 1984	1 January 2002
1 January 1987	1 January 2003
1 January 1991	1 January 2004
date of commencement	1 January 2005
of this Act

(2)  [Section 11 Subsection (2) amended by No. 77 of 1994, s. 11 ]Unless it sooner ceases to be in force, subordinate legislation made on or after the commencement of this Act is repealed on the tenth anniversary of the date on which it was made.

(3)  For the purposes of this section, a reference to "subordinate legislation" is a reference to the subordinate legislation as amended from time to time and not to any of the amending subordinate legislation.

(4)  Where subordinate legislation is repealed by virtue of this section, any subordinate legislation which amends that subordinate legislation and any provision in subordinate legislation which is a provision that amends that subordinate legislation is also repealed.

(5)  [Section 11 Subsection (5) inserted by No. 77 of 1994, s. 11 ]The Governor, by order, may postpone by a period not exceeding 12 months the date on which any subordinate legislation specified in the order would otherwise be repealed under subsection (1) .

(6)  [Section 11 Subsection (6) inserted by No. 77 of 1994, s. 11 ]An order under subsection (5) is to be made before the date on which the subordinate legislation to which the order applies would, but for the order, be repealed under subsection (1) .

12.   Provisions regarding publication

(1)  [Section 12 Subsection (1) amended by No. 77 of 1994, s. 12 ]Subordinate legislation is, for the purposes of this Part, to be taken to have been made on the date on which it was published, or notification of its making was published, in the Gazette.

(2)  If subordinate legislation made under one Act is by law to be treated as made under another, the date of its publication is, for the purposes of this Part, the date it was originally published.

PART 4 - Miscellaneous

13.   Procedure when Subordinate Legislation Committee not in office

If the Subordinate Legislation Committee is not in office when material is required to be sent to it under section 9 , the material is to be sent to a person nominated by the Clerk of the Legislative Council and the Clerk of the House of Assembly for the attention of the Committee after its appointment.

14.   Regulations and orders

[Section 14 Amended by No. 77 of 1994, s. 13 ]

(1)  The Governor may make regulations for the purposes of this Act.

(2)  [Section 14 Subsection (2) added by No. 77 of 1994, s. 13 ]The Governor, by order, may do either of the following:

(a) amend Schedule 2 or Schedule 3 or both of those schedules;

(b) repeal Schedule 2 or Schedule 3 or both of those schedules and substitute, in each case, a new schedule.

(3)  [Section 14 Subsection (3) added by No. 77 of 1994, s. 13 ]The power of the Governor under subsection (2) is not exercisable after 31 December 1995.

15.   

The amendments effected by these sections have been incorporated into the authorised version of the following Acts:

(a) Subordinate Legislation Committee Act 1969 ;

(b) Acts Interpretation Act 1931 ;

(c) Rules Publication Act 1953 .

16.   

17.   

18.   

[Section 18 Repealed by No. 77 of 1994, s. 14 ].  .  .  .  .  .  .  .  

19.   Transitional provision

Until guidelines are issued by the Treasurer under section 3A , the guidelines set out in Schedule 1 are taken to be the guidelines that the Treasurer has issued under that section.

SCHEDULE 1 - Guidelines for the Preparation of Subordinate Legislation

[Schedule 1 Amended by No. 77 of 1994, s. 15 ]

Section 19

1.   Where costs and benefits are referred to in these guidelines, economic, social and environmental costs and benefits are to be taken into account and given due consideration.

2.   Before subordinate legislation is proposed to be made –

(a) the objectives sought to be achieved and the reasons for them must be clearly formulated; and

(b) those objectives are to be checked to ensure that they –

(i) are reasonable and appropriate; and

(ii) accord with the objectives, principles, spirit and intent of the enabling Act; and

(iii) are not inconsistent with the objectives of other Acts, subordinate legislation and stated government policies; and

(c) alternative options for achieving those objectives (whether wholly or substantially), and the option of not proceeding with any action, must be considered; and

(d) consideration must be given to the advantages and disadvantages expected to arise from each such option as compared with the advantages and disadvantages (direct and indirect, and tangible and intangible) expected to arise from proceeding with the subordinate legislation; and

(da) consideration must be given to the impact of the proposed subordinate legislation on competition and, where a significant restriction on competition is identified, consideration must also be given to whether the advantages of the proposed restriction outweigh the likely disadvantages and, if so, whether the proposed restriction represents the absolute minimum that is necessary in the public interest; and

(e) [Schedule 1 Amended by No. 86 of 2000, Sched. 1, Applied:01 May 2001] if the subordinate legislation would impinge on or may affect the area of responsibility of another Government department, within the meaning of the State Service Act 2000 , or a State authority as defined in that Act, consultation must take place with a view to ensuring in advance that (as far as is reasonably practicable in the circumstances) –

(i) any differences are reconciled; and

(ii) there will be no overlapping of or duplication of or conflict with Acts, subordinate legislation or stated government policies administered by the other Government department or State authority.

3.   In determining whether and how the objectives should be achieved, the responsible Minister is to have regard to the following principles:

(a) administrative decisions should be based on adequate information and consultation concerning the need for and consequences of the proposed action;

(b) implementation by means of subordinate legislation should not normally be undertaken unless the anticipated benefits to the community from the proposed subordinate legislation outweigh the anticipated costs to the community, bearing in mind the impact of the proposal on the economy and competition and on consumers, members of the public, relevant interest groups, and any sector of industry and commerce, that may be affected;

(ba) regulatory restrictions should not be imposed on competition unless it can be clearly demonstrated that it is in the public interest for the restriction to be imposed;

(c) the alternative option that involves the greatest net benefit or the least net cost to the community should normally be chosen from the range of alternative options available to achieve the objectives.

4.   Subordinate legislation must be expressed plainly and unambiguously, and consistently with the language of the enabling Act.

SCHEDULE 2 - Provisions Applying to Regulatory Impact Statements

[Schedule 2 Amended by No. 77 of 1994, s. 16 ]

Section 5

1.   A regulatory impact statement must include –

(a) a statement of the objectives sought to be achieved and the reasons for them; and

(b) an identification of the alternative options by which those objectives can be achieved (whether wholly or substantially); and

(c) an assessment of the costs and benefits of the proposed subordinate legislation, including the costs and benefits relating to resource allocation, administration and compliance; and

(d) an assessment of the costs and benefits of each alternative option to the making of the subordinate legislation (including the option of not proceeding with any action), including the costs and benefits relating to resource allocation, administration and compliance; and

(da) an assessment of the impact of the proposed subordinate legislation on competition and, where a significant restriction on competition is identified, an evaluation of whether the benefits of the proposed restriction outweigh the likely costs and, if so, whether the restriction represents the absolute minimum that is necessary in the public interest; and

(e) an assessment as to which of the alternative options involves the greatest net benefit or the least net cost to the community; and

(f) a statement of the consultation programme undertaken and to be undertaken.

2.   

(1) Where costs and benefits are referred to in this Schedule, economic, social and environmental costs and benefits, both direct and indirect, are to be taken into account and given due consideration.

(2) Costs and benefits must, where possible, be quantified. If this is not possible, the anticipated impacts of the proposed action and of each alternative must be stated and presented in a way that permits a comparison of the costs and benefits.

SCHEDULE 3 - Exempt Matters and Categories

[Schedule 3 Amended by No. 77 of 1994, s. 17 ]

Section 6

PART 1

1.   Matters involving corrections to existing subordinate legislation.

2.   Matters of a savings or transitional nature.

3.   Matters arising under legislation that is substantially uniform or complementary with legislation of the Commonwealth or another State or Territory.

4.   Matters involving the adoption of international or Australian standards or codes of practice, where an assessment of the costs and benefits has already been made.

5.   Matters of declaratory, machinery or procedural nature.

6.   Matters involving relations between bodies that are departments within the meaning of the Administrative Arrangements Act 1990 .

7.   Matters involving the administrative or financial organization or the procedures of bodies that are departments within the meaning of the Administrative Arrangements Act 1990 .

8.   An order of the Governor under section 11 (5) or 14 (2) of this Act.

PART 2

1.   Fees – where the rate of increase of a fee or group of fees does not exceed the rate of increase in the Consumer Price Index since the fee or fees were last fixed.

2.   Court procedures – that do not impose fees, but relate to the procedure, practice or costs of a court or of a tribunal exercising judicial or quasi-judicial powers.

3.   Remade subordinate legislation – that by way of consolidation and without substantive amendment, remake the provisions of earlier subordinate legislation, where –

(a) the provisions have been in operation at some time in the preceding 12 months; and

(b) not more than 10 years have elapsed since the making of the earlier subordinate legislation; and

(c) a regulatory impact statement was prepared in relation to the earlier subordinate legislation.