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Statutory Instruments and Legislative Standards Amendment
STATUTORY INSTRUMENTS AND
LEGISLATIVE STANDARDS
AMENDMENT BILL 1994
EXPLANATORY NOTE
(Circulated by authority of the Premier, Minister for
Economic and Trade Development)
OBJECTIVE
To amend the Statutory Instruments Act 1992 and the Legislative
Standards Act 1992 as a result of the recommendations of the
Parliamentary Committee of Electoral and Administrative Review on the
Report of the Review of the Parliamentary Committees about the sunsetting
of subordinate legislation and requiring the preparation of regulatory impact
statements for significant subordinate legislation and explanatory notes for
Bills and significant subordinate legislation. Consequential amendments are
required to be made of the Acts Interpretation Act 1954.
REASONS FOR THE BILL
The Electoral and Administrative Review Commission (EARC) in its
Report on Review of Parliamentary Committees recommended that
subordinate legislation should be sunsetted on a 7 year cycle, that rule
making proposals and explanatory memoranda should be prepared for
subordinate legislation and that the current explanatory notes for Bills
should be expanded.
The Parliamentary Committee of Electoral and Administrative Review
(PCEAR) in its Report on Review of Parliamentary Committees
recommended that (EARC's) proposed scheme to sunset subordinate
legislation be varied to provide that subordinate legislation be reviewed
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Statutory Instruments and Legislative Standards Amendment
every 10 years rather than every 7 years. PCEAR recommended that
regulatory impact statements (RIS's) be prepared for subordinate legislation
with some exceptions and that explanatory notes be prepared for Bills and
for subordinate legislation.
ESTIMATED COST FOR GOVERNMENT
Because of uncertainty in the amount of subordinate legislation which is
likely to impose appreciable costs on the community or a part of the
community, it is difficult to estimate a cost for the implementation of this
legislation.
CONSULTATION
Extensive consultation was conducted by EARC and PCEAR on these
matters in the Review of the Office of the Parliamentary Counsel and the
Review of Parliamentary Committees
All departments were consulted several times in the development of the
legislation. The Parliamentary Service Commission was consulted on
operational aspects of the policy.
NOTES ON CLAUSES
PART 1--PRELIMINARY
Clause 1 states the short title of the Act.
PART 2--AMENDMENT OF STATUTORY
INSTRUMENTS ACT 1992
Clause 2 states that this Part of the Act amends the Statutory Instruments
Act 1992.
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Statutory Instruments and Legislative Standards Amendment
Clause 3 replaces section 5 of the Principal Act. It provides for a
dictionary in Schedule 3 that defines particular words used in this Act. New
section 5A states that the Act binds the State, continuing the effect of section
8.
Clause 4 omits existing Parts 5 and 6 of the Act. It provides for a new
Part 5 and 6 to reflect the new arrangements. The Parts are based on Parts 5
and 6 of a proposed Bill attached to PCEAR'S Report on the Review of
Parliamentary Committees.
The current Part 5 of the Act which becomes Part 6 provides for
procedural matters relating to subordinate legislation. With the new
requirement for the preparation of regulatory impact statements and
explanatory notes, the process will be more comprehensive and more open
to scrutiny and accountability, which will, in turn, lead to better regulation.
The new Part 5 sets out guidelines on procedures before making
subordinate legislation. These guidelines are intended to help persons
developing subordinate legislation to ensure that Queensland has an efficient
and effective regulatory system.
PART 5--GUIDELINES FOR REGULATORY
IMPACT STATEMENTS
Division 1--Introductory
The new section 40 provides for regulatory impact statements for
subordinate legislation under guidelines in Division 2. Subsection (2) states
that Division 2 is directory only and does not create rights or legally
enforceable obligations on anyone.
The new section 41 states that failure to comply with Division 2 does not
affect the validity of the subordinate legislation. Subsection (2) removes the
RIS procedures from review under the Judicial Review Act 1991.
The new section 42 provides that subordinate legislation which is
affected by other legislation requiring publication or consultation about the
proposal is not affected by this Division.
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Statutory Instruments and Legislative Standards Amendment
Division 2--Regulatory Impact Statements
The new section 43 provides that RIS's must be prepared for significant
subordinate legislation made or approved after 1 July 1995 (new section 60
refers). Significant subordinate legislation is legislation that is likely to
impose appreciable costs on the community or a part of the community.
This lead time is necessary to ensure that officers responsible for the
development of subordinate legislation may be trained and to allow for
adequate consultation time in preparing the significant subordinate
legislation as well as preparing a comprehensive database for subordinate
legislation.
The new section 44 states the form and content of a regulatory impact
statement and emphasises that the RIS must be expressed in clear and
precise language so that the public can understand it. The content of the RIS
is based on an assessment of the ways of achieving the policy objectives
rather than on the policy objectives themselves. This will assist in deciding
whether subordinate legislation was the best option. Paragraph (g) ensures
that all benefits and costs are stated either quantitatively or qualitatively.
Where benefits and costs are not able to be quantitatively defined, they are
to be included as a qualitative description of the impact of the proposed
legislation in terms of benefits and costs.
The new section 45 provides that the RIS having been prepared, a notice
must be published so that stakeholders and the public are given the
opportunity to comment on the proposal. Subsection (2) provides that, if the
proposed subordinate legislation is likely to have a significant impact on a
particular group of people, special attention needs to be given to ensure that
these people have access to and understand the purpose and content of the
notice. Subsection (3) states what information must be included in the
notice. Subsection (4) provides for the minimum amount of time to be
allowed for comment to be made. Subsection (5) requires the RIS to be
available at the places stated in the notice and the cost of the RIS.
The new section 46 states certain types of subordinate legislation for
which the preparation of a RIS or consultation need not occur. Subsection
(2) provides an exemption to the RIS process for subordinate legislation if it
would be against the public interest to undergo the RIS process because of
the nature of the subordinate legislation. For example, if it was required to
provide for some issue urgently, the impact of the 28 day minimum period
for the notice of the preparation of a RIS could prove disastrous.
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Statutory Instruments and Legislative Standards Amendment
PART 6--PROCEDURES AFTER MAKING OF
SUBORDINATE LEGISLATION
Division 1--Notification and making copies available
This Division provides for procedural matters after the making of
subordinate legislation and replaces PART 5--PROCEDURAL
MATTERS RELATING TO SUBORDINATE LEGISLATION of the
Act.
Section 40 of the Statutory Instruments Act 1992 (the Act) is now the
new section 47. It continues the current requirement to either notify or
publish subordinate legislation in the Gazette. However, exempt subordinate
legislation must be published in full. Since 1 July 1991 subordinate
legislation drafted by the Office of the Queensland Parliamentary Counsel
has been published in the Subordinate Legislation Series.
Sections 41 and 42 of the Act are now the new section 48 which
specifies that copies of the subordinate legislation must be available on the
day the notice is published, or as soon as practicable after that day.
Subsection (3) provides that if the copies of the subordinate legislation are
not available on the day of publication of the notice, the Minister responsible
for matters connected with Government printing and publishing must table
a statement in the Legislative Assembly, within 14 sitting days of the
notification day, advising that the subordinate legislation was not available
and an explanation why the copies were not available.
Division 2--Tabling in Legislative Assembly
The new section 49 was section 43 in the Act and requires that
subordinate legislation be tabled within 14 sitting days after notification
otherwise it ceases to have effect.
Division 3--Disallowance procedures
The new section 50 replaces section 44 of the Act and gives the
Legislative Assembly power to allow or disallow subordinate legislation.
The number of sitting days is determined under section 29B of the Acts
Interpretation Act 1954.
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Statutory Instruments and Legislative Standards Amendment
Division 4--General
The new section 51 replaces section 45 of the Act and saves the effect of
anything done under the subordinate legislation before the subordinate
legislation ceases to have effect under the new sections 49 and 50.
However if subordinate legislation which ceases to have effect because it
has not been tabled or disallowed, amended or repealed other legislation, the
other legislation is revived.
The new section 52 replaces section 46 of the Act and provides that the
provisions in the Bill relating to notification, gazettal, tabling or
disallowance of subordinate legislation override any provisions in this
regard in any other Act.
PART 7--STAGED AUTOMATIC EXPIRY OF
SUBORDINATE LEGISLATION
This Part replaces the Regulatory Reform Act 1986 and has been
expanded to include the recommendations of the PCEAR.
New section 53 states the purposes of the Part that includes the objective
of the Regulatory Reform Act 1986 as set out in section 2 of that Act and
the recommendation of the PCEAR.
The new section 54 replaces section 5 of the Regulatory Reform Act
1986 by providing for a 10 year cycle for the review and remaking of
subordinate legislation instead of a 7 year cycle. This amendment accords
with the PCEAR recommendation. Also, in accordance with the PCEAR
recommendation there is a limited exemption provision for subordinate
legislation from expiry on certain grounds which are set out in the new
section 56. Subsection (2) provides for subordinate legislation which has
been exempted from expiry by a regulation made under this Act to expire
when the period of exemption ends.
The new section 55 provides for the Parliamentary Counsel to have a
statutory responsibility to notify an administering agency 6 months before
the subordinate legislation expires. This is in line with the PCEAR
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Statutory Instruments and Legislative Standards Amendment
recommendation. The Office of the Queensland Parliamentary Counsel
already has a substantial database of subordinate legislation and is taking
steps to ensure that this database is comprehensive as soon as possible.
The new section 56 states that subordinate legislation may be exempted
from expiry for not more than 1 year on the basis that the subordinate
legislation is either being drafted, or will not be replaced, or if the
subordinate legislation is substantially uniform or complementary with
legislation of the Commonwealth or another State. In the latter case this is a
specific exemption to align the Queensland Statute Book with
complementary legislation in the Commonwealth or the other States.
Subsection (3) allows this type of legislation to continue for further periods
of not more than 5 years.
The new section 57 states that the Part does not apply to subordinate
legislation that is subject to a resolution of the Legislative Assembly to
amend or repeal the status of land. These are subordinate legislation made
under the provisions of the Marine Parks Act 1982, Nature Conservation
Act 1992, Forestry Act 1959 etc.
PART 8--FORMS
The new section 58 replaces section 47 of the Statutory Instruments Act
1992 and continues its effect.
PART 9--MISCELLANEOUS
This Part replaces Part 6--Miscellaneous of the Statutory Instruments
Act 1992.
The new section 59 replaces section 48 of the Act and continues its
effect.
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Statutory Instruments and Legislative Standards Amendment
PART 10--TRANSITIONAL
The new section 60 nominates 1 July 1995 as the day after which the
requirement to prepare a RIS commences. Any significant subordinate
legislation made after this day should have a regulatory impact statement
and an explanatory note prepared for them. This amount of time is
necessary to implement the legislation effectively. Subsection (2) provides
that if a responsible entity is in a position to comply with the relevant
Division before that time then there is nothing to stop them from doing so.
The new subsection 61(1) states that the earliest that subordinate
legislation will expire under this Act is 1 July 1997. This is intended to give
the responsible entities time in which to review and remake those
instruments which may have expired under the provisions of the
Regulatory Reform Act 1986 and have been exempted or continued under
separate provisions of that same Act. This section also brings those
instruments which would have expired under the Regulatory Reform Act
1986 on a 7 year cycle into a 10 year cycle as the first expiry under that Act
commenced in 1987. The effect of new section 61 is to allow subordinate
legislation that would expire before 1 July 1997 to continue in force until
that day.
New subsection 62(1) harmonises the subordinate legislation which will
expire under the Act with section 22C of the Acts Interpretation Act 1954
which provides amending subordinate legislation notified or published after
30 June 1994 is automatically repealed on the day after the last of its
provisions take effect. Subsection (2) ties the amending subordinate
legislation made before 30 June 1994 with legislation that has been
exempted under this Act to continue with the legislation.
The new section 63 states that Part 8 (FORMS) does not apply to a form
approved or made available before 1 July 1994. This continues the effect of
section 47(10) of the Act.
Clause 5 inserts Schedule 3 that contains a dictionary of terms
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Statutory Instruments and Legislative Standards Amendment
PART 3--AMENDMENT OF LEGISLATIVE
STANDARDS ACT 1992
This Part amends the Legislative Standards Act 1992 to include
provisions relating to explanatory notes for Bills and subordinate legislation.
Clause 6 states that this Part amends the Legislative Standards Act 1992.
PCEAR recommended that amendments about the requirement for
explanatory notes for Bills and subordinate legislation should be included in
the Statutory Instruments Act 1992, however, the Parliamentary Counsel's
opinion was that it is more appropriate to amend the Legislative Standards
Act 1992.
Clause 7 inserts a definition of "benefits" and "costs" into section 2 of
the Legislative Standards Act 1992 as well as cross referencing the
definition of significant subordinate legislation and replacing the definition
of "exempt instrument".
Clause 8 makes a minor amendment to section 4 to reflect more
correctly the purpose of the provision.
Clause 9 makes a minor amendment to clarify the section.
Clause 10 replaces Part 4 of the Act with a new Part 4 which includes the
requirement to prepare explanatory notes.
PART 4--EXPLANATORY NOTES
The PCEAR recommended that explanatory notes for Bills and
subordinate legislation should be prepared and presented to the House.
The new section 22 provides that explanatory notes must be prepared for
Bills and significant subordinate legislation and be presented to the
Legislative Assembly. As far as subordinate legislation is concerned the
operative date is after 30 June 1995.
The new section 23 provides for the content of an explanatory note for a
Bill.
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Statutory Instruments and Legislative Standards Amendment
The new section 24 provides for the content of an explanatory note for
significant subordinate legislation and in this case also requires that the
regulatory impact statement must accompany the explanatory note.
The new section 25 provides for the subordinate legislation to continue to
have effect in the event an explanatory note is not prepared or presented.
PART 5--MISCELLANEOUS
This Part replaces Part 4--Miscellaneous of the Legislative Standards
Act 1992.
The new section 26 replaces section 22 and continues the effect.
The new section 27 clarifies a reference.
PART 4--AMENDMENT OF ACTS
INTERPRETATION ACT 1954
Clause 11 states that this Part amends the Acts Interpretation Act 1954.
Clause 12 makes a minor technical amendment to section 22C of the
Act.
Clause 13 inserts a provision to clarify the determination of the number
of sitting days for a resolution. This is necessary for those instruments
mentioned in the new section 57.
Clause 14 replaces the definition "purpose" in section 36 to make a
minor technical amendment.
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Statutory Instruments and Legislative Standards Amendment
PART 5--REPEALS
This Part provides those Acts which will be repealed by the
commencement of this Act.
Clause 15 repeals the Regulatory Reform Act 1986 and consequential
amendments.
© The State of Queensland 1994