Subordinate legislation

Subordinate legislation is law made under the authority of a power conferred by an Act of Parliament. On this website, subordinate legislation is simply listed under, or referred as, regulations even though it includes other types of instruments.

Acts often confer the authority to make subordinate legislation on the Governor. However, Acts sometimes confer the authority on other persons or bodies (for example, Ministers, courts and tribunals and public officials).

The most common example of subordinate legislation is a statutory rule. Section 21 (1) of the Interpretation Act 1987 defines a statutory rule to be:

  • a regulation, by-law, rule or ordinance made by the Governor, or
  • a regulation, by-law, rule or ordinance made by another person or body that must be approved or confirmed by the Governor (for example, a University by-law made under section 36 of the University of Sydney Act 1989 ), or
  • a rule of court (which is a rule made by the person or body having power to make rules regulating the practice and procedure of a court or tribunal).

 

However, the Governor no longer makes ordinances.

Part 6 of the Interpretation Act 1987 provides that written notice of the making of a statutory rule must be tabled before each House of Parliament within 14 sitting days after it is published on the NSW legislation website (that is, this website). Either House of Parliament may pass a resolution that disallows a statutory rule at any time after it is published. However, notice of a resolution to disallow a statutory rule must be given no later than 15 days after the written notice of its making is tabled.

A statutory rule can be disallowed even if only one House of Parliament passes a disallowance resolution. The disallowance of a statutory rule operates to repeal it and to reinstate the legislation in force before the changes made by the statutory rule. Also, section 8 of the Subordinate Legislation Act 1989 prevents the remaking of a disallowed statutory rule (in substantially the same terms) for 4 months.

Examples of other kinds of subordinate legislation include (but are not limited to) the following:

  • proclamations made by the Governor that commence provisions of Acts,
  • proclamations made by the Governor that alter local council areas or amalgamate them under the Local Government Act 1993,
  • rules made by the Legal Profession Admission Board concerning the admission of lawyers,
  • water sharing plans made by order under the Water Management Act 2000,
  • proclamations, orders, notices or other instruments that operate to amend an Act (see, for example, final determinations under the Biodiversity Conservation Act 2016 ).

 

Subordinate legislation that is not a statutory rule cannot be disallowed by Parliament unless the Act under which it is made expressly provides for it. See, for example, section 26 of the Marine Estate Management Act 2014, which provides that proclamations under that section can be disallowed in the same way as statutory rules.

All statutory rules must be published on this website before they can take effect. Other subordinate legislation will usually be required to be published in either the Gazette or on this website by the Act under which it is made.


Last updated 30 August 2020 at 14:31