An Act relating to the making and staged repeal of subordinate legislation.
Part 1 Preliminary
1 Name of Act
This Act may be cited as the Subordinate Legislation Act 1989.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
(1) In this Act:Legislation Review Committee means the committee for the time being constituted under the Legislation Review Act 1987.principal statutory rule means a statutory rule that contains provisions apart from:(a) direct amendments or repeals, and(b) provisions that deal with its citation and commencement.responsible Minister, in connection with a statutory rule, means the Minister administering the Act under which the statutory rule is or is proposed to be made.statutory rule means a regulation, by-law, rule or ordinance:(a) that is made by the Governor, orbut does not include any instruments specified or described in Schedule 4.(b) that is made by a person or body other than the Governor, but is required by law to be approved or confirmed by the Governor,(2) In this Act, a reference to a direct amendment is a reference to an amendment that inserts, adds, amends or substitutes matter.s 3: Am 2002 No 77, Sch 2.2 [1] [2].
Part 2 Requirements regarding the making of statutory rules
4 Guidelines
(1) Before a statutory rule is made, the responsible Minister is required to ensure that, as far as is reasonably practicable, the guidelines set out in Schedule 1 are complied with.(2) This section does not apply to a statutory rule containing matters of a savings or transitional nature (provided the only other provisions contained in the statutory rule are provisions dealing with its citation and commencement).s 4: Am 2010 No 59, Sch 1.26 [1].
5 Regulatory impact statements
(1) Before a principal statutory rule is made, the responsible Minister is required to ensure that, as far as is reasonably practicable, a regulatory impact statement complying with Schedule 2 is prepared in connection with the substantive matters to be dealt with by the statutory rule.(2) Before a principal statutory rule is made, the responsible Minister is required to ensure that, as far as is reasonably practicable, the following provisions are complied with:(a) A notice is to be published in the Gazette and in a daily newspaper circulating throughout New South Wales and, where appropriate, in any relevant trade, professional, business or public interest journal or publication:(i) stating the objects of the proposed statutory rule, and(ii) advising where a copy of the regulatory impact statement may be obtained or inspected, and(iii) advising whether, and (if so) where, a copy of the proposed statutory rule 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.(b) Consultation is to 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 statutory rule.(c) All the comments and submissions received are to be appropriately considered.(3) The nature and extent of the publicity for the proposal, and of the consultation regarding the proposal, are to be commensurate with the impact likely to arise for consumers, the public, relevant interest groups, and any sectors of industry or commerce from the making of the statutory rule.(4) In the event that the statutory rule is made, a copy of the regulatory impact statement and all written comments and submissions received are to be forwarded to the Legislation Review Committee within 14 days after it is published.(5) Comments and submissions received within one week before the statutory rule is submitted to the Governor (or at any time afterwards) need not be considered or forwarded to the Legislation Review Committee.(6) Section 75 of the Interpretation Act 1987 does not apply to notices required to be published under this Act.s 5: Am 1993 No 48, Sch 1 (1); 2002 No 77, Sch 2.2 [3]; 2006 No 43, Sch 2.3 [1].
6 Regulatory impact statements not necessary in certain cases
(1) It is not necessary to comply with section 5 to the extent that:(a) the responsible Minister certifies in writing that, on the advice of the Attorney General or the Parliamentary Counsel, the proposed statutory rule comprises or relates to matters set out in Schedule 3, or(b) the Minister administering this Act (or a Minister for the time being nominated by the Minister administering this Act for the purpose) certifies in writing that, in his or her opinion in the special circumstances of the case, the public interest requires that the proposed statutory rule should be made without complying with section 5, or(c) the responsible Minister certifies in writing that:(i) the proposed statutory rule has been or is to be made by a person or body (other than the Governor) who or which is not expressly subject to the control or direction of the responsible Minister, and(ii) it was not practicable, in the circumstances of the case, for the responsible Minister to comply with section 5.(2) If a statutory rule is made in the circumstances mentioned in subsection (1) (b), the responsible Minister is required to ensure that the relevant requirements of section 5 (with any necessary adaptations) are complied with within 4 months after the statutory rule is made.(3) A certificate under this section may relate to either or both of the following:(a) all or any specified requirements of section 5,(b) all or any specified aspects of the statutory rule concerned.s 6: Am 1994 No 95, Sch 2.
7 Requirements before making statutory rules
A proposed statutory rule must not be submitted for making by the Governor, or for the approval or confirmation of the Governor, unless the following are submitted together with the proposed statutory rule:(a) a copy of a certificate of the responsible Minister stating whether or not, in his or her opinion, the provisions of this Act relating to the proposed statutory rule have been complied with,(b) a copy of any relevant certificate under section 6,(c) a copy of the opinion of the Attorney General or the Parliamentary Counsel as to whether the proposed statutory rule may legally be made.
8 Remaking of disallowed statutory rule
(1) This section applies where a House of Parliament has disallowed a statutory rule under section 41 of the Interpretation Act 1987.(2) No statutory rule, being the same in substance as the statutory rule so disallowed, may be published on the NSW legislation website within 4 months after the date of the disallowance, unless the resolution has been rescinded by the House of Parliament by which it was passed.(3) If a statutory rule is published in contravention of this section, the statutory rule is void.s 8: Am 2006 No 43, Sch 2.3 [2] [3].
9 Compliance with Part
(1) Except as provided by section 8, failure to comply with any provisions of this Part does not affect the validity of a statutory rule.(2) The provisions of this Part regarding the requirements to be complied with before a statutory rule is made, approved or confirmed are in addition to, and do not affect, the provisions of any other Act.
Part 3 Staged repeal of statutory rules
10 Staged repeal of statutory rules
(1) Unless it sooner ceases to be in force, a statutory rule published before a date specified in Column 1 below is repealed on the date specified opposite in Column 2:
10A Certain statutory rules to remain in force
(1) Despite the other provisions of this Part, unless sooner repealed, a statutory rule listed in Schedule 5 remains in force until the date specified in that Schedule for the rule or, if more than one date is so specified, the later of those dates.(1A)–(3) (Repealed)s 10A: Ins 2010 No 59, Sch 1.26 [3]. Am 2010 No 119, Sch 1.33 [1] [2]; 2011 No 22, Sch 2.26; 2012 No 42, Sch 1.26 [1] [2]; 2013 No 47, Sch 1.30 [1] [2].
11 Governor may postpone repeal by order
(1) The Governor may, by order published on the NSW legislation website, from time to time postpone by one year the date on which a specified statutory rule is repealed by section 10.(2) Such an order is effective to postpone the repeal of the statutory rule, provided the order is published before the repeal would otherwise take effect.(3) The repeal of a particular statutory rule may not be postponed on more than 5 occasions.(4) The repeal of a statutory rule may not be postponed on a third, fourth or fifth occasion unless the responsible Minister has given the Legislation Review Committee at least one month’s written notice of the proposed postponement.(5) The Legislation Review Committee may make such reports to the responsible Minister and to each House of Parliament as it thinks desirable in connection with the third, fourth or fifth postponement of the repeal of a statutory rule.(6) This section does not apply to the regulations referred to in section 10A.s 11: Am 1993 No 48, Sch 1 (3); 1993 No 108, Sch 2; 1996 No 30, Sch 1; 1997 No 55, Sch 1.26 [2]; 1998 No 54, Sch 1.19 [3]; 1999 No 31, Sch 1.49 [2]; 2000 No 53, Sch 1.31 [3]; 2002 No 77, Sch 2.2 [3]; 2006 No 43, Sch 2.3 [4]; 2007 No 82, Sch 2.20; 2009 No 56, Sch 1.39 [3]; 2010 No 59, Sch 1.26 [4].
12 Machinery provisions regarding repeal
(1) A statutory rule is, for the purposes of this Part, to be taken to have been published on the following date:(a) if the statutory rule was required to be published on the NSW legislation website or in the Government Gazette or any other official gazette—the date on which it was originally so published,(b) if the statutory rule was not required to be so published but was required to be made, approved or confirmed by the Governor—the date on which it was so made, approved or confirmed,(c) in any other case—the date on which it was made.(2) The repeal of a statutory rule by this Part extends to any direct amendments (whenever made) of the statutory rule and to so much of any statutory rule as makes any such amendments.(3) A set of regulations, by-laws, rules or ordinances constituting a single instrument is, for the purposes of this Part, to be taken to be a single statutory rule.(4) If an instrument made under one Act is by law to be treated as a statutory rule made under another Act, the date of publication is, for the purposes of this Part, the date it was originally published.(5), (6) (Repealed)s 12: Am 1992 No 34, Sch 1; 1994 No 95, Sch 2; 1995 No 13, Sch 4; 2006 No 43, Sch 2.3 [5].
Part 4 Miscellaneous
13 Procedure when Legislation Review Committee not in office
If the Legislation Review Committee is not in office when material is required to be forwarded to it under section 5, the material is to be forwarded to a person nominated by the Clerk of the Legislative Assembly, for the attention of the Committee after its appointment.s 13: Am 2002 No 77, Sch 2.2 [3].
14 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) Regulations may, after consultation with the Legislation Review Committee, be made amending or replacing Schedule 3 or 4.s 14: Am 2002 No 77, Sch 2.2 [3].
15 (Repealed)
s 15: Rep 1999 No 85, Sch 4.
Schedule 1 Guidelines for the preparation of statutory rules
(Section 4)
1
Wherever costs and benefits are referred to in these guidelines, economic and social costs and benefits are to be taken into account and given due consideration.
2
Before a statutory rule is proposed to be made:
(a) The objectives sought to be achieved and the reasons for them must be clearly formulated.
(b) Those objectives are to be checked to ensure that they:• are reasonable and appropriate, and• accord with the objectives, principles, spirit and intent of the enabling Act, and• are not inconsistent with the objectives of other Acts, statutory rules and stated government policies.
(c) Alternative options for achieving those objectives (whether wholly or substantially), and the option of not proceeding with any action, must be considered.
(d) An evaluation must be made of the costs and benefits expected to arise from each such option as compared with the costs and benefits (direct and indirect, and tangible and intangible) expected to arise from proceeding with the statutory rule.
(e) If the statutory rule would impinge on or may affect the area of responsibility of another authority, consultation must take place with a view to ensuring in advance that (as far as is reasonably practicable in the circumstances):• any differences are reconciled, and• there will be no overlapping of or duplication of or conflict with Acts, statutory rules or stated government policies administered by the other 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 a statutory rule should not normally be undertaken unless the anticipated benefits to the community from the proposed statutory rule outweigh the anticipated costs to the community, bearing in mind the impact of the proposal on the economy and on consumers, members of the public, relevant interest groups, and any sector of industry and commerce, that may be affected.
(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
A statutory rule must be expressed plainly and unambiguously, and consistently with the language of the enabling Act.
Schedule 2 Provisions applying to regulatory impact statements
(Section 5)
1
A regulatory impact statement must include the following matters:
(a) A statement of the objectives sought to be achieved and the reasons for them.
(b) An identification of the alternative options by which those objectives can be achieved (whether wholly or substantially).
(c) An assessment of the costs and benefits of the proposed statutory rule, including the costs and benefits relating to resource allocation, administration and compliance.
(d) An assessment of the costs and benefits of each alternative option to the making of the statutory rule (including the option of not proceeding with any action), including the costs and benefits relating to resource allocation, administration and compliance.
(e) An assessment as to which of the alternative options involves the greatest net benefit or the least net cost to the community.
(f) A statement of the consultation program to be undertaken.
2
(1) Wherever costs and benefits are referred to in this Schedule, economic and social costs and benefits, both direct and indirect, are to be taken into account and given due consideration.
(2) Costs and benefits should be quantified, wherever possible. If this is not possible, the anticipated impacts of the proposed action and of each alternative should be stated and presented in a way that permits a comparison of the costs and benefits.
3
A regulatory impact statement for a committee’s foundation regulation (within the meaning of the Agricultural Industry Services Act 1998) must contain an assessment of the regulation carried out in accordance with the principles set out in Clauses 1 (3), 5 (1) and 5 (9) of the Competition Principles Agreement, being the agreement between the Commonwealth, the States and the Territories that was entered into, for and on behalf of New South Wales, on 11 April 1995.
sch 2: Am 1998 No 45, Sch 3.8.
Schedule 3 Matters not requiring regulatory impact statements
(Section 6)
1
Matters of a machinery nature.
2
Direct amendments or repeals.
3
Matters of a savings or transitional nature.
4
Matters arising under legislation that is substantially uniform or complementary with legislation of the Commonwealth or another State or Territory.
4A
Matters involving the substantial implementation of Agreed Reforms, within the meaning of the Inter-Governmental Agreement for Regulatory and Operational Reform in Road, Rail and Intermodal Transport entered into by the Commonwealth and each of the States and Territories (which came into effect on 15 January 2004), being Reforms that have been progressed in accordance with clause 11 of that Agreement.
5
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.
6
Matters that are not likely to impose an appreciable burden, cost or disadvantage on any sector of the public, having regard to any assessment of those issues by the relevant agency after the consideration and application of relevant guidelines set out in Schedule 1 to this Act.
7
A management plan for a share management fishery or a supporting plan made under the Fisheries Management Act 1994.
8
Matters arising under the Protection of the Environment Operations Act 1997:
(a) that implement protection of the environment policies under that Act or national environment protection measures under the National Environment Protection Council (New South Wales) Act 1995, or
(b) that have undergone a public consultation process that is similar to or no less rigorous than the public consultation process for the making of such policies.
9
Management rules for a marine park or an aquatic reserve under the Marine Estate Management Act 2014.
10
A regulation under the Homebush Motor Racing (Sydney 400) Act 2008.
11
A regulation under the Major Events Act 2009.
sch 3: Am GG No 108 of 26.8.1994, p 5144; 1997 No 153, Sch 6.5; 1997 No 156, Sch 4.16 (am 1998 No 54, Sch 1.14 [3]); 1999 No 19, Sch 4.3 [2]; 2004 No 26, Sch 2.2; 2004 No 55, Sch 1.40 [2]; 2008 No 29, Sch 2 [2]; 2008 No 106, sec 45; 2014 No 72, Sch 4.14 [2]; 2015 No 58, Sch 1.12.
Schedule 4 Excluded instruments
(Section 3)
1
Standing Rules and Orders of the Legislative Council and Legislative Assembly.
2
Rules of court.
3
Regulations under the Constitution Act 1902.
4 (Repealed)
4A
Regulations under the Australian Mutual Provident Society Act 1988.
5
By-laws under the Anzac Memorial (Building) Act 1923.
6, 7 (Repealed)
8
By-laws under the Farrer Memorial Research Scholarship Fund Act 1930.
9
Rules under the McGarvie Smith Institute Incorporation Act 1928.
10 (Repealed)
10A
By-laws under the National Trust of Australia (New South Wales) Act 1990.
11
By-laws under Part 2 of Chapter 4 of the Water Management Act 2000.
12
Rules under the Sporting Injuries Insurance Act 1978.
13, 14 (Repealed)
15
By-laws under the Technical Education Trust Funds Act 1967.
16
By-laws of a university.
16A (Repealed)
17
By-laws under the Wellington Show Ground Act 1929.
18
An instrument containing matters of a savings or transitional nature (provided the only other provisions contained in the instrument are provisions dealing with its citation and commencement) being an instrument that was in force on 1 July 2010.
19
Regulations under Part 6 of the Energy and Utilities Administration Act 1987.
20
Regulations under Part 2 of the Essential Services Act 1988.
21
Regulations under the Road Obstructions (Special Provisions) Act 1979.
22
Ordinances under Part 12A of the Local Government Act 1919, being:
(a) planning scheme ordinances that are deemed to be deemed environmental planning instruments under the Environmental Planning and Assessment Act 1979, and
(b) (Repealed)
23
Regulations under the Bank Mergers Act 1996.
24 (Repealed)
25
Regulations under the AGL Corporate Conversion Act 2002.
26 (Repealed)
27
Regulations under the James Hardie Former Subsidiaries (Winding up and Administration) Act 2005.
28
Regulations under the James Hardie (Civil Liability) Act 2005.
29
Regulations under the James Hardie (Civil Penalty Compensation Release) Act 2005.
30–32 (Repealed)
sch 4: Am 1990 No 92, sec 40; 1991 No 17, Sch 1; GG No 157 of 8.11.1991, p 9375; 1996 No 30, Sch 1; 1996 No 130, sec 9; 2000 No 92, Sch 8.26; 2001 No 32, Sch 2.6; 2002 No 16, Sch 5; 2003 No 64, Sch 2; 2005 No 18, Sch 2.10; 2005 No 45, Sch 2; 2005 No 105, Sch 2; 2006 No 106, Sch 2.3; 2007 No 14, sec 41 (c), Sch 3.4; 2008 No 52, Sch 2.3; 2008 No 91, Sch 1.2; 2009 No 1, Sch 2.2; 2009 No 56, Sch 2.68 [1] [2]; 2009 No 60, Sch 5.3; 2010 No 8, Sch 6.3; 2010 No 59, Sch 1.26 [5]; 2010 No 93, Sch 3.3 [1] [2]; 2011 No 27, Sch 3.12; 2011 No 62, Sch 4.9; 2012 No 35, Sch 7; 2012 No 101, Sch 6.6; 2015 No 5, Sch 8.29; 2016 No 19, Sch 7; 2016 No 27, Sch 4; 2016 No 46, Sch 4.6.
33
Regulations under the NSW Lotteries (Authorised Transaction) Act 2009.
34
Regulations under the Waste Recycling and Processing Corporation (Authorised Transaction) Act 2010.
35
By-laws under the Australian Jockey and Sydney Turf Clubs Merger Act 2010.
36
Regulations under the Electricity Generator Assets (Authorised Transactions) Act 2012.
37
Regulations under the Ports Assets (Authorised Transactions) Act 2012.
38
Regulations under the Electricity Network Assets (Authorised Transactions) Act 2015.
39
Regulations under the Superannuation Administration Corporation (Pillar) (Authorised Transaction) Act 2016.
40
Regulations under the Land and Property Information NSW (Authorised Transaction) Act 2016.
Schedule 5 Further postponement of repeal of certain statutory rules
(Section 10A (1))
1 Postponement of statutory rules due for repeal in 2013
The following statutory rules remain in force until 1 September 2014, unless sooner repealed:
2 Postponement of statutory rules due for repeal in 2014
The following statutory rules remain in force until 1 September 2015, unless sooner repealed:
3 Postponement of repeal of Environmental Planning and Assessment Regulation 2000 due for repeal in 2015
The Environmental Planning and Assessment Regulation 2000 remains in force until 1 September 2016, unless sooner repealed.
4 Postponement of repeal of other statutory rules due for repeal in 2015
The following statutory rules remain in force until 1 September 2016, unless sooner repealed:
5 Postponement of repeal of Water Industry Competition (Access to Infrastructure Services) Regulation 2007 due for repeal in 2015
The Water Industry Competition (Access to Infrastructure Services) Regulation 2007 remains in force until 1 September 2019, unless sooner repealed.
6 Postponement of repeal of other statutory rules due for repeal in 2016
The following statutory rules remain in force until 1 September 2017, unless sooner repealed:
7 Postponement of repeal of other statutory rules due for repeal in 2017
The following statutory rules remain in force until 1 September 2018, unless sooner repealed:
sch 5: Ins 2013 No 47, Sch 1.30 [3]. Am 2014 No 33, Sch 1.16; 2014 No 79, Sch 5; 2015 No 15, Sch 1.26; 2016 No 27, Sch 1.28; 2017 No 22, Sch 1.20.