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Subordinate Legislation Amendment
Bill 2010
Introduction Print
EXPLANATORY MEMORANDUM
General
The purposes of the Subordinate Legislation Act 1994 are--
· to ensure that the power to make subordinate legislation is exercised
subject to the authority and control of Parliament;
· to regulate the preparation, making, publication and scrutiny of
subordinate legislation;
· to provide for public participation in the preparation and scrutiny of
subordinate legislation; and
· to make certain amendments to the Interpretation of Legislation Act
1984.
To achieve those purposes, the Subordinate Legislation Act 1994 sets out
procedures for making statutory rules (which are commonly known as
regulations) and confers scrutiny functions on the Scrutiny of Acts and
Regulations Committee of the Parliament (SARC). This includes, among
other things, requirements relating to consultation and the preparation of a
regulatory impact statement, and the power for SARC to scrutinise statutory
rules and recommend disallowance.
In September 2002, SARC prepared a written report on its Inquiry into the
Subordinate Legislation Act 1994. In its report, SARC commented on the
increasing proliferation of legislative instruments which are outside the scope
of the Subordinate Legislation Act 1994 because they are not statutory
rules. SARC made a number of recommendations, including that the
Subordinate Legislation Act 1994 be extended to cover instruments which
are legislative in character.
This Bill inserts new Parts into the Subordinate Legislation Act 1994 that
deal with procedures for making legislative instruments, which are generally
instruments of legislative character made under an Act or statutory rule.
561171 1 BILL LC INTRODUCTION 23/6/2010
The amended Subordinate Legislation Act 1994 will introduce consultation,
certification, tabling, scrutiny and gazettal requirements in relation to
legislative instruments, which are similar to those already in place for
statutory rules.
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the purposes of the Bill. These are--
· to make various amendments to facilitate the operation
of the Subordinate Legislation Act 1994; and
· to extend the application of certain provisions of the
Subordinate Legislation Act 1994 to legislative
instruments.
Clause 2 sets out the various commencement dates for clauses in the Bill.
The Act, except Part 3, comes into operation on 1 January 2011.
Part 3, which relates to the legislative instruments amendments,
comes into operation on 1 July 2011.
Clause 3 provides that, in the Bill, the Subordinate Legislation Act 1994
is called the Principal Act.
PART 2--GENERAL AMENDMENTS
Clause 4 inserts definitions of extension certificate, extension regulation,
human rights certificate and human rights exemption
certificate, substitutes new definitions of exemption certificate
and responsible Minister for the existing definitions, and repeals
the definition of exception certificate, all in section 3 of the
Principal Act.
The substituted definition of exemption certificate extends the
definition to include certificates issued by the responsible
Minister under section 8 of the Principal Act and the Premier
under section 9 of the Principal Act in relation to proposed
statutory rules.
Clause 5 substitutes section 5 of the Principal Act with new sections 5
and 5A. The new section 5 maintains the automatic revocation of
a statutory rule 10 years after its making but also revokes any
other statutory rules or provisions in any other statutory rule
amending the revoked statutory rule insofar as they relate to the
revoked statutory rule, subject to section 5A.
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The new section 5A allows the Governor in Council to make a
regulation that extends an existing statutory rule by up to
12 months. This may be done once, on the recommendation
of the responsible Minister. The responsible Minister must
issue an extension certificate specifying the special
circumstances, including the reasons why the extension is
necessary, after obtaining a certificate from the Premier
specifying that the Premier agrees to the extension of the
statutory rule. The Premier's agreement is a new requirement.
Clause 6 amends section 6 of the Principal Act to require the responsible
Minister to undertake consultation in accordance with the
guidelines issued under the Principal Act with any sector of the
public on which a significant economic or social burden may be
imposed by a proposed statutory rule. This is a change from the
threshold of an appreciable economic or social burden.
Clause 7 repeals section 6A(2) and (3) of the Principal Act. Those
provisions required the responsible Minister to ensure that a copy
of any infringement offence consultation certificates issued in
relation to proposed statutory rules be given to SARC as soon as
practicable after the statutory rule is made and laid before each
House of Parliament at the same time as the statutory rule is
tabled. There is now a general requirement for tabling in new
section 15A inserted by clause 17.
Clause 8 substitutes new sections 7, 8 and 9 of the Principal Act for the
existing sections.
The new section 7 retains the requirement that a regulatory
impact statement be prepared for a proposed statutory rule,
subject to an exemption certificate. It removes the reference to
exception certificates, as the certificates relating to compliance
with the RIS process are now all called exemption certificates.
The new section 8 specifies when an exemption certificate
may be issued and what the certificate must contain.
The circumstances in which an exemption certificate may be
issued under the new section 8 include the circumstances under
which an exception or an exemption certificate could be issued
under the old sections 8 and 9, with one exception. Under the old
section 8, the responsible Minister could issue an exception
certificate if the proposed statutory rule only prescribed an
indexation factor for the purposes of section 20 of the Land Tax
Act 2005. That ground for issuing a certificate is not contained
in the new section 8 as section 20 of that Act was repealed in
2006.
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The new section 9 no longer allows the responsible Minister to
issue an exception certificate as these grounds now appear in the
new section 8. Instead, the new section 9 allows the Premier to
issue an exemption certificate in limited circumstances for a
proposed statutory rule of not more than 12 months duration.
This power is similar to the Premier's current power to issue a
certificate under the current section 9(3) of the Principal Act.
Clause 9 amends section 10(1) of the Principal Act to require a regulatory
impact statement prepared for a proposed statutory rule to include
a table comparing proposed fees and existing fees, including an
indication of the percentage increase or decrease for each fee, if
the proposed statutory rule amends fees in an existing statutory
rule.
This clause also repeals section 10(5) of the Principal Act, which
requires the responsible Minister to ensure a copy of the
regulatory impact statement and compliance certificate are given
to SARC as soon as practicable after the statutory rule is made.
This requirement will appear in new section 15A.
Clause 10 substitutes a new section 11(3) of the Principal Act for the
existing subsection, removing the current requirement that the
responsible Minister ensure that a copy of all comments and
submissions in relation to a regulatory impact statement is given
to SARC as soon as practicable after the making of the statutory
rule because new section 15A provides for this.
Clause 11 inserts a new section 12(4) in the Principal Act to provide that a
failure to comply with sections 12(1), (2) or (3), which deal with
publication of a notice to make or not to make a proposed
statutory rule after a regulatory impact statement has been
prepared, does not affect the operation or effect of the statutory
rule but SARC may report the failure to each House of the
Parliament.
Clause 12 repeals paragraph b(iii) of section 12A(3) of the Principal
Act and inserts a new paragraph (c) into that section.
These amendments will allow a responsible Minister to issue a
certificate stating that the section 12A(1) requirement to prepare
a human rights certificate does not apply to a proposed statutory
rule that is an extension regulation as defined in section 3 of the
Principal Act.
Clause 13 inserts a new section 12B in the Principal Act, requiring
certificates issued under Part 2 of the Principal Act to be signed
by the responsible Minister and dated. The new section 12B also
allows a certificate issued under Part 2 of the Principal Act to be
a composite certificate that incorporates the certificates required
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by sections 6 (consultation), 6A (infringements offence
consultation), 8 (exemption certificate issued by responsible
Minister) and 10(4) (regulatory impact statement compliance), or
any combination of those certificates.
Clause 14 amends section 13(b)(iii) of the Principal Act to clarify that
"onus" means the legal burden. The clause also inserts new
sections 13(2) and (3) in the Principal Act.
The new section 13(2) allows the Chief Parliamentary Counsel to
specify that a section 13 certificate applies only to a proposed
statutory rule and not to any matter in a document applied,
adopted or incorporated by the statutory rule, if the proposed
statutory rule makes provision for or in relation to a matter by
applying, adopting or incorporating matter contained in a
document, and the matter is of such a detailed technical nature
that the Chief Parliamentary Counsel is not qualified to advise
about the matter.
The new section 13(3) allows a section 13 certificate to specify
that the certificate relates to the circumstances as at the date of
the certificate.
Clause 15 amends the requirements for the submission of statutory rules to
Governor in Council contained in section 14 of the Principal Act
to require 3 rather than 4 copies of each statutory rule to be
submitted, remove references to exception certificates, and
require the submission of an extension certificate and a Premier's
certificate under section 5A(3) if the proposed statutory rule is an
extension regulation.
Clause 16 inserts a new section 15(1A) in the Principal Act, requiring
certain certificates that accompany a statutory rule and the
recommendation to the Governor in Council to make the
statutory rule to be laid before each House of the Parliament.
The clause also amends section 15(2) of the Principal Act to
provide that failure to comply with section 15(1A) does not affect
the operation or effect of the statutory rule although SARC may
report the failure to each House of the Parliament.
Clause 17 inserts a new section 15A in the Principal Act, requiring the
documents associated with the statutory rule that were laid before
Parliament in accordance with section 15(1A) to be given to
SARC. The documents include an extension certificate, an
exemption certificate, a compliance certificate, a human rights
certificate, a human rights exemption certificate, a section 13
certificate, and the accompanying recommendation to the
Governor in Council to make the statutory rule any exemption
certificate issued by the Premier under section 9, and any
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regulatory impact statement and a copy of all comments and
submissions received.
The new section 15A also provides that failure to comply with
this requirement does not affect the operation or validity of the
statutory rule.
Clause 18 amends section 17(2) of the Principal Act, which requires
publication of a statutory rule in the Government Gazette.
Section 17(2) currently requires publication in the next general
edition of the Government Gazette published after the making of
the statutory rule, unless it is published in an earlier special
edition. As amended, section 17(2) will require publication in
the next general edition of the Government Gazette after the
making of the statutory rule or in a special edition within
10 working days of the making of the statutory rule. This will
allow more time for publication than is currently allowed and
will be consistent with the comparable requirement for legislative
instruments.
Clause 19 amends section 21(1)(b)(iii) of the Principal Act to clarify that
"onus" means the legal burden. This amendment relates to that
made in clause 14.
Clause 20 substitutes section 23(1)(a) of the Principal Act to provide that
section 23 applies to a statutory rule if the authorising Act under
which the statutory rule is made states that the statutory rule is
subject to disallowance by the Parliament or by a House of the
Parliament.
The clause also amends section 23(1)(c) of the Principal Act so
that failure to comply with new section 15(1A) is a ground for
disallowance in addition to the existing ground of failure to
comply with section 15(1), and, if a statutory rule has not been
laid before a House of Parliament, requires any notice of a
resolution to disallow the statutory rule to be given in that House
on or before the sixth sitting day of that House after the notice of
the making of the statutory rule has been published in the
Government Gazette under section 17(2).
The clause also substitutes section 23(2)(a) of the Principal Act
to provide for the notice requirements for a resolution to disallow
a statutory rule in whole or in part.
Clause 21 repeals section 33(1) of the Principal Act, which repeals the
Subordinate Legislation Act 1962. The clause also repeals
section 34 of the Principal Act, which provides for the
application of the Principal Act to statutory rules made before or
after the commencement of the Principal Act, and transitional
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provisions in relation to the transition between the Subordinate
Legislation Act 1962 and the Subordinate Legislation Act
1994. These provisions are now redundant.
Clause 22 inserts a new section 35 at the end of Part 8 of the Principal Act,
and contains transitional provisions for Part 2 of the Subordinate
Legislation Amendment Bill 2010.
Clause 23 amends clause 6 of Schedule 1 to the Principal Act to allow
guidelines made under the Principal Act to include guidelines as
to the circumstances in which a statutory rule imposes a
significant economic or social burden on a sector of the public.
Clause 24 provides that an Act specified in a heading to an item in
Schedule 1 is amended as set out in that item. That Schedule
amends references to the repealed Subordinate Legislation Act
1962.
PART 3--AMENDMENTS RELATING TO LEGISLATIVE
INSTRUMENTS
Clause 25 inserts into section 3 of the Principal Act new definitions for
instrument maker, legislative instrument and public sector body.
The clause inserts a new section 3(2), which provides a non-
exhaustive list of types of instruments of purely administrative
character.
The clause also amends the existing definitions in section 3 of
amendment, authorising Act, compliance certificate, exemption
certificate, human rights certificate, human rights exemption
certificate and responsible Minister as a consequence of
extending the Act to legislative instruments.
Clause 26 inserts a new section 3A in the Principal Act that provides that,
for a period of 2 years from the commencement of Part 3 on
1 July 2011, any legislative instrument made during that period is
not invalid merely because of a failure to characterise or identify
that instrument as a legislative instrument and subsequent failure
to comply with the requirements of the Principal Act applying to
legislative instruments.
Clause 27 inserts a new section 4(A) in the Principal Act, which allows the
Governor in Council to make regulations under the Principal Act
prescribing instruments to be instruments that do not fall within
the definition of legislative instrument, instruments to be or not to
be legislative instruments, and exempting legislative instruments
from the operation of all or part of the Principal Act.
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Clause 28 inserts new sections 8(1)(e)(iv), (v) and (vi) in the Principal Act
that provide that the requirement to prepare a regulatory impact
statement for a proposed statutory rule does not apply if the
responsible Minister issues an exemption certificate stating that,
in his or her opinion, the proposed statutory rule only--
· prescribes instruments to be excluded from the
definition of legislative instrument;
· prescribes instruments to be or not to be legislative
instruments for the purposes of the Principal Act or any
specified provisions of the Principal Act; or
· prescribes instruments to be instruments to which the
regulatory impact requirements in Part 2A do not apply.
Clause 29 inserts new sections 12A(3)(b)(iia) and (iib) in the Principal Act
that provide that the requirement to prepare a human rights
certificate for a proposed statutory rule does not apply if the
responsible Minister certifies in writing that the proposed
statutory rule only--
· prescribes instruments to be excluded from the
definition of legislative instrument; or
· prescribes instruments to be or not to be legislative
instruments for the purposes of the Principal Act or any
specified provisions of the Principal Act.
This is similar to the current exemption for preparing a human
rights certificate for certain proposed statutory rules in section
12A(3) of the Principal Act.
Clause 30 inserts a new Part 2A into the Principal Act which deals with the
preparation of legislative instruments as follows--
New section 12C requires the responsible Minister to ensure that
where the guidelines issued under the Principal Act require
consultation, there is consultation with any relevant Ministers or
sectors of the public in accordance with the guidelines, and that a
certificate of consultation is issued for the legislative instrument
in accordance with the guidelines. This is similar to the
consultation requirement in relation to proposed statutory rules in
section 6 of the Principal Act.
New section 12D requires the responsible Minister to ensure that
a human rights certificate is prepared in respect of a proposed
legislative instrument, unless it is exempted under
section 12D(3). It specifies what information the human rights
certificate must contain, and provides for limited circumstances
8
in which a human rights certificate is not required. This is
similar to the requirement in relation to proposed statutory rules
in section 12A of the Principal Act.
New section 12E requires the responsible Minister to ensure that
a regulatory impact statement is prepared in relation to legislative
instruments unless an exemption certificate is issued in relation to
the proposed legislative instrument under section 12F. This is
similar to the requirement in relation to proposed statutory rules
in section 7 of the Principal Act.
New section 12F sets out circumstances in which the responsible
Minister may issue an exemption certificate in relation to a
proposed legislative instrument. This is similar to the exemption
certificates that may be issued in relation to statutory rules under
section 8 of the Principal Act.
New section 12G allows the Premier to issue an exemption
certificate in special circumstances to exempt a legislative
instrument from complying with section 12E. The Premier's
exemption certificate must specify reasons for the exemption.
This is similar to the exemption certificate that may be issued by
the Premier in relation to proposed statutory rules under new
section 9 inserted by clause 8.
New section 12H specifies what a regulatory impact statement
for a proposed legislative instrument must contain, including an
assessment of the economic, environmental and social impacts
of the proposed legislative instrument. Section 12H requires
independent advice and assessment as to the adequacy of the
regulatory impact statement. The responsible Minister is
required to certify that the regulatory impact statement has been
adequately assessed and complies with the Principal Act and the
guidelines issued under that Act. This is similar to the
requirements relating to regulatory impact statements prepared
for proposed statutory rules in section 10 of the Principal Act.
New section 12I requires the responsible instrument maker to
ensure publication of a notice of the regulatory impact statement
in the Government Gazette, a daily newspaper in Victoria and, if
appropriate, in trade, professional or public interest publications.
The notice must contain certain specified details, and all
comments and submissions received in response to the notice
must be considered before the legislative instrument is made.
Where an instrument is made by Governor in Council, the
responsible Minister must ensure publication of the notice.
This is similar to the requirements in relation to regulatory
impact statements prepared for statutory rules in section 11 of the
Principal Act.
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If a regulatory impact statement has been prepared in relation to a
legislative instrument, new section 12J requires the responsible
instrument maker to ensure that a notice of the decision to make
or not make the instrument is published in the Government
Gazette and a daily Victorian newspaper within a specified time.
If an instrument is made by Governor in Council, the responsible
Minister must ensure publication of the notice. This is similar to
the requirements in relation to proposed statutory rules in
section 12 of the Principal Act.
New section 12K requires that a certificate issued under Part 2A
of the Principal Act must be signed by the responsible Minister
and dated with the date of signing. Section 12K allows the
responsible Minister to make a single composite certificate
incorporating any certificates issued in relation to the same
legislative instrument under sections 12C, 12D and 12F. This is
similar to the requirement in relation to certificates prepared for
proposed statutory rules in new section 12K.
Clause 31 inserts a new Part 3A into the Principal Act which deals with the
tabling and publication of legislative instruments.
New section 16A(1) requires legislative instruments to be
published in full in the next general edition of the Government
Gazette or in a special edition of the Government Gazette within
10 working days after the making of the legislative instrument.
Section 16A(2) provides that if, in accordance with the guidelines
issued under the Principal Act, a legislative instrument is
unsuitable to be published in full, notice of the making of the
legislative can be published instead. This is similar to the
requirement in relation to publication of statutory rules in
section 17 of the Principal Act.
New section 16B(1) requires legislative instruments and certain
related certificates to be laid before each House of Parliament on
or before the sixth day after its publication in the Government
Gazette. Copies of the legislative instrument must also be
provided to members of Parliament as soon as possible after
being laid before Parliament, upon request. Failure to lay the
legislative instrument before Parliament as required does not
affect the operation or effect of the legislative instrument, but
SARC may report the failure to each House of Parliament.
This is similar to the requirements in relation to statutory rules
in section 15 of the Principal Act.
When a legislative instrument is made, new section 16C requires
the responsible Minister to ensure that certain specified
documents are provided to SARC within a specified time.
Failure to comply with these requirements does not affect the
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operation or validity of the instrument. This is similar to the
requirements in relation to statutory rules in new section 15A of
the Principal Act.
New section 16D provides that compliance with a requirement in
the authorising Act for a legislative instrument to be published
in the Government Gazette is taken to be compliance with
section 16A. However, section 16D(4) provides that, subject to
section 16A(2), instrument makers must still comply with the
requirements of 16A(1) if the authorising Act for a legislative
instrument only requires notice of the making of the instrument
to be published in the Government Gazette.
If the authorising Act for a legislative instrument requires
publication in the Government Gazette of the instrument within
a time period that is shorter than that required by Part 3A of the
Principal Act, compliance with the requirements of the
authorising Act is taken to be compliance with Part 3A.
If the authorising Act for a legislative instrument requires
publication in the Government Gazette of the instrument within
a time period that is longer than that required by Part 3A, the
instrument maker must comply with the time period for gazettal
in Part 3A of the Principal Act.
New section 16E provides that compliance with a requirement of
the authorising Act for a copy of the legislative instrument to be
laid before each House of the Parliament on or before the sixth
sitting day after the legislative instrument has been published in
the Government Gazette or within a shorter period, is taken to be
compliance with section 16B(1).
If the authorising Act for a legislative instrument requires a copy
of the legislative instrument to be laid before each House of the
Parliament within a longer time period, then the instrument
maker must comply with the time period in Part 3A.
Clause 32 inserts the words "of statutory rules" into the heading of Part 4 of
the Principal Act, after the word "availability".
Clause 33 inserts the words "of statutory rules" into the heading of Part 5 of
the Principal Act, after the word "disallowance", as a
consequence of the insertion of new Part 5A by clause 34.
Clause 34 inserts a new Part 5A which deals with scrutiny, suspension and
disallowance of legislative instruments.
New section 25A prescribes the circumstances in which SARC
can report to each House of Parliament on a legislative
instrument that has been laid before each House of Parliament.
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The report may recommend amendments to the legislative
instrument or that the instrument be disallowed in whole or in
part. There are similar provisions in relation to the review of
statutory rules by SARC in section 21 of the Principal Act.
New section 25B allows for the suspension of a legislative
instrument or part of the instrument in certain circumstances.
If a legislative instrument is suspended in whole or in part, the
instrument is deemed not to have been made or to have been
made without the suspended part. There are similar provisions in
relation to the suspension of statutory rules in section 22 of the
Principal Act.
New section 25C provides for the circumstances in which a
House of Parliament can give a notice of a resolution to disallow
a legislative instrument. It sets out the time periods for giving
notice of such a resolution. There are similar provisions in
relation to the disallowance of statutory rules in section 23 of the
Principal Act.
New section 25D provides that the disallowance of a legislative
instrument by Parliament or a House of Parliament has the same
effect as a revocation of the whole or part of the legislative
instrument. If the disallowed legislative instrument or part of the
instrument revoked, repealed or amended a statutory rule,
legislative instrument or an Act, the revocation, repeal or
amendment will have no effect from the day of the disallowance.
If a legislative instrument is disallowed, new section 25E requires
the Clerk of the Parliaments to cause a notice of the disallowance
to be published in the Government Gazette.
There are similar provisions in relation to the effect and notice of
disallowance of a statutory rule in sections 24 and 25 of the
Principal Act.
Clause 35 extends the Minister's existing power to make guidelines to
include guidelines relating to the preparation, content, publication
and availability of legislative instruments, as well as statutory
rules.
Clause 36 extends SARC's role in advising the Minister about any matter
relating to the administration or operation of the Principal Act to
include the making of regulations under section 4A(1A), which
prescribe instruments to be excluded from the definition of
legislative instrument, to be or not to be legislative instruments
for the purposes of part or all of the Principal Act, and exempt
legislative instruments from the operation of part or all of the
Principal Act.
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Clause 37 extends the regulation making powers of the Governor in Council
to make regulations under the Principal Act that--
· may be of general or limited application;
· differ according to differences in time, place or
circumstance;
· may be subject to any conditions specified in the
regulations;
· may exempt specified statutory rules or legislative
instruments or any class of statutory rule or legislative
instrument from complying with all or any of the
regulations; or
· may exempt specified persons or a specified class of
person from complying with all or any of the
regulations or any provision of this Act.
Clause 38 amends Schedule 1 to the Principal Act, which lists matters to be
included in guidelines, to refer to legislative instruments as well
as statutory rules.
PART 4--GENERAL
Clause 39 inserts a new section 36 in the Principal Act, which provides the
Governor in Council with powers to make regulations containing
transitional or savings matters arising as a result of the enactment
of the Subordinate Legislation Amendment Act 2010.
Clause 40 provides that the Bill is repealed on 1 July 2012. The repeal does
not affect the continuing operation of the amendments made by it
(see section 15(1) of the Interpretation of Legislation Act
1984).
SCHEDULE 1
Consequential Amendments Relating to References to Repealed
Subordinate Legislation Act 1962
Schedule 1 repeals or amends provisions in a range of Acts that apply or
refer to the Subordinate Legislation Act 1962, in particular, the
disallowance of subordinate legislation, to a range of subordinate
legislation.
Schedule 1 substitutes provisions that apply the Subordinate
Legislation Act 1962 with provisions that apply the equivalent
provisions of the Subordinate Legislation Act 1994.
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