Subordinate legislation is a collective term for statutory rules, regulations, ordinances, by-laws and rules that support primary legislation (an Act of Parliament). Primary legislation is usually general in nature, establishing a framework for regulation.

Subordinate legislation made under primary legislation contains the necessary detail to ensure the successful operation of the primary legislation. Authority to prepare subordinate legislation is delegated by the Parliament to an agency (or in rare cases, to another body) in the primary legislation.

In Tasmania, the Subordinate Legislation Act 1992 defines subordinate legislation as:

1. a regulation, rule or by-law that is:

• made by the Governor; or
• 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

2. any other instrument of a legislative character that is:

Agencies are encouraged to liaise with the Economic Policy Branch as early as possible in relation to any proposed subordinate legislation. This will:​

• ensure that the Economic Policy Branch is aware of the issues surrounding the proposed subordinate legislation;
• enable agencies to obtain a clear indication of the status of the proposal under the Subordinate Legislation Act, and plan their project timeline accordingly. In most cases, the Economic Policy Branch will be able to give a preliminary indication of whether a Regulatory Impact Statement (RIS) will be required; and
• assist the Economic Policy Branch in minimising the time required to process the required certificates.
  

Agencies should identify the need to develop new subordinate legislation, amend existing subordinate legislation, or re-make existing subordinate legislation that is due for repeal. When re-making existing subordinate legislation, agencies should ensure that they allow sufficient time for the regulations to be re-made prior to their expiry, including the time needed to prepare and consult on a Regulatory Impact Statement, should one be required.

Once appropriate policy directions are developed and agreed, proposals are to clearly formulate the objectives of the subordinate legislation.  If there is any question regarding the identified objectives overlapping, duplicating, conflicting or being inconsistent with other legislation or Government policy, consult with other agencies as required.

Agencies should consider the following issues:

1. Has any consultation with key affected stakeholders occurred to assist in the examination of costs and benefits of the proposed legislation?
2. If the agency considers that a proposal will not impose a significant cost, burden or disadvantage on any sector of the public, what evidence can it provide to support that assessment?

As a rule, if the Economic Policy Branch has insufficient information to demonstrate that there is no significant cost, burden or disadvantage, it is likely to require a RIS.

In considering whether proposed subordinate legislation will impose a significant burden, cost or disadvantage on a sector of the community, consideration must be given as to the arrangements that would exist if the new regulations were not made compared to the arrangements that would arise under the proposed subordinate legislation. 

That is:

• proposed new subordinate legislation will be compared with a no regulation or a non‑legislative approach;
• for subordinate legislation that is due to be repealed under the Act, a proposal to remake the regulations will be compared with letting the regulations lapse; and
  
• proposed amendments to existing subordinate legislation will be compared with maintaining the subordinate legislation in its current form.

The regulatory proposal is assessed as imposing a significant burden, cost or disadvantage when it has an impact on the whole community or on groups of people within the community, although the question of how many people constitute a 'sector' of the public is a matter of judgement. Consideration must also be given to whether the regulatory proposal imposes a significant cost or burden on that identified sector of the public.

In considering whether a regulatory proposal will impose a significant burden or cost, the questions that must be considered include:

• Does it impose significant penalties for non-compliance?
• Does it impact on individual rights and liberties?
• Will business, community groups or individuals have to spend funds or devote time to compliance activities, change current practices or seek external advice?
• Does it result in the imposition of additional costs on any particular sector of the public?
• Does the impacted sector have the ability to adapt to the proposed regulatory change?
• Does it impact on multiple parties within the community?
• Does it create new, unique or unequal impacts within the community?
• Does it create clear groups of 'winners' or 'losers' within the community?
• Are the impacts likely to be controversial?

​A useful point of reference is to consider whether the sector which will be affected by the proposed subordinate legislation would consider the impact to be significant, in its circumstances. If the answer to this is yes, then the significance threshold is met. If the answer is no, and this can be supported by evidence, then the significance threshold is not met. If the question cannot be answered, then consultation with potentially impacted sectors of the public would be appropriate.

In a number of cases, it will be readily apparent that the subordinate legislation will not impose a significant burden, cost or disadvantage on any sector of the public. In those cases, drafting instructions can be sent to the Office of Parliamentary Counsel (OPC) in the Department of Premier and Cabinet. Alternatively, agencies may choose to seek 'in-principle' assessment from Economic Policy Branch before commencing drafting.

Once the subordinate legislation has been finalised, agencies need to obtain advice from the OPC as to whether the legislation complies with section 7 of the Subordinate Legislation Act.

A final draft of the subordinate legislation, together with a copy of the section 7 advice from the OPC should then be provided to the Economic Policy Branch for final assessment.

If the subordinate legislation has not substantially changed, the Economic Policy Branch will confirm the in-principle assessment with a final assessment and issue the appropriate certificate.

Subordinate legislation does not generally require Cabinet approval. However, when there are broader policy considerations involved, and the regulations form part of those considerations, or the subordinate legislation is of a sensitive nature, it may be advisable to seek Cabinet approval.

If subordinate legislation is likely to have a significant impact on the community, or agencies are uncertain of the potential impact, an 'in-principle' assessment should be requested from the Economic Policy Branch. This will give the agency an indication of how the final subordinate legislation will be assessed.

The Initial Legislation Impact Assessment template can be used as the basis for that in‑principle assessment (see drop down box above).

Drafting instructions can then be sent to the Office of Parliamentary Counsel (OPC).

Once the subordinate legislation has been finalised, agencies again need to obtain advice from the OPC as to whether the legislation complies with section 7 of the Subordinate Legislation Act.

A final draft of the subordinate legislation, together with a copy of the section 7 advice from the OPC should then be provided to the Economic Policy Branch for final assessment.

If the legislation is assessed as significant by the Economic Policy Branch, an appropriate certificate will be issued to that effect, and a Regulatory Impact Statement (RIS) must be prepared.

The requirements for preparing a RIS are set out in Schedule 2 of the Subordinate Legislation Act as follows:

1. A regulatory impact statement must include —
1. a statement of the objectives sought to be achieved and the reasons for them;
2. an identification of the alternative options by which those objectives can be achieved (whether wholly or substantially);
3. an assessment of the costs and benefits of the proposed subordinate legislation, including the costs and benefits relating to resource allocation, administration and compliance;
4. 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;
5. 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;
6. an assessment as to which of the alternative options involves the greatest net benefit or the least net cost to the community; and
7. a statement of the consultation program undertaken and to be undertaken.
2. ​​Where costs and benefits are referr​​​​​​​ed 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.
3. ​​​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.

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 a 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 organisation 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

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.

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.

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

1. the provisions have been in operation at some time in the preceding 12 months; and
2. not more than 10 years have elapsed since the making of the earlier subordinate legislation; and
3. a regulatory impact statement was prepared in relation to the earlier subordinate legislation.

Depending on the nature of the exemption, either the Secretary or the Treasurer will issue the applicable certificate to the agency.

If an exemption is required from the Treasurer, the Economic Policy Branch will manage this process. The agency should not provide a request for an exemption directly to the Treasurer.

The agency can then proceed to prepare the subordinate legislation for submission to the Governor-in-Council.

Background

Section 6(a) of the Subordinate Legislation Act provides for the following exemption:

“. . . where the rate of increase in 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."

To ensure that all proposals to increase fees are treated consistently and fairly, the Economic Policy Branch adopts the following approach to how it will apply the relevant provision of the Act. 

Starting Date for Measuring Increases

The term "since the fee or fees were last fixed" will be interpreted as the date on which a particular fee was last increased. This avoids disadvantaging agencies where entire fee schedules are replaced simply to alter one or two of the fees in that schedule.

Determining Index Numbers

The index number to be used is the "all groups index number" for Hobart, published by the Australian Bureau of Statistics in Consumer Price Index, Catalogue No. 6401.0.

Starting index number

The "starting index number" is to be the last CPI number that was published prior to the date on which the existing fee commenced. 

Ending index number

The "ending index number" will be the most recently published CPI number at the time the proposal is assessed by the Economic Policy Branch. 

Maximum allowable increase

The maximum allowable increase in a fee is the percentage difference between the "starting index number" and the "ending index number" as defined above. Any increase above this amount would require assessment by the Economic Policy Branch.

Proposals to Increase Fees

If at any future point, prior to subordinate legislation expiring, the agency wishes to increase a fee further, it should provide the Economic Policy Branch with appropriate documentation which indicates the "ending index number" that was last used.  This "ending index number" then automatically becomes the "starting index number" for the next round of fee increases. This is subject to any revision of the index number by the Australian Bureau of Statistics in the meantime.

However, if the agency does not provide any documentation of the "ending index number" that was last used, the new "starting index number" will be determined in exactly the same manner as above - that is, the last CPI number that was published prior to the date on which the new fee commenced.

The new "ending index number" is the most recently published CPI number at the time the new proposal is assessed by the Economic Policy Branch.

Increasing Fees to the Level of Cost Recovery

Government policy encourages agencies to adopt full cost recovery for fees and charges and requires that the level of fees be explicitly accountable. Guidelines are available on the Treasury website under 'Budget Guidelines' in the Budget and Financial Home Page (Costing Fees and Charges Guidelines for Use by Agencies).

Agencies may seek an increase in a fee, or group of fees, predicated on the need to achieve cost-recovery. When applying for Treasury certification in such cases, agencies are encouraged to provide any documentation produced in line with Treasury's advice which substantiates the increased level of each fee.

Section 9 of the Subordinate Legislation Act requires copies of all relevant documents to be submitted to the Subordinate Legislation Committee within seven days of the notification of the making of the subordinate legislation being published in the Gazette or, where notification of its making is not required, within seven days of the subordinate legislation being made. 

Relevant documents include:

• any certificates issued by the Secretary or the responsible Minister;
  
• the RIS (if one was required to be prepared);
• any written comments and submissions received as a result of any public consultation process undertaken (if public consultation had been required);
• the advice from the OPC under section 7;
• copies of previous regulations if the subordinate legislation being submitted is amending or remaking existing subordinate legislation.

The agency must then liaise with the responsible Minister's office to ensure that, in accordance with section 47(3) of the Acts Interpretation Act 1931, the appropriate number of copies of the subordinate legislation are tabled in each House of Parliament. This must be done within the first ten sitting days of the House after either the making of the subordinate legislation or the notification of its making is published in the Gazette.

While not mandatory under the Subordinate Legislation Act, agencies should provide Fact Sheets, along with the information above, to the Subordinate Legislation Committee. The Fact Sheets should provide a summary of the regulations and also include information relating to the consultation undertaken in the preparation of the regulations and the outcome of the consultation. If a RIS was required, the Fact Sheets should include information as to how stakeholders, and the broader community, were advised that a RIS was released and the outcome of the consultation.

Contact

Department of Treasury and Finance
GPO Box 147
HOBART TAS 7001
Email: economic.reform@treasury.ta​s.gov.au

In considering whether proposed subordinate legislation will impose a significant burden, cost or disadvantage on a sector of the community, consideration must be given as to the arrangements that would exist if the new regulations were not made compared to the arrangements that would arise under the proposed subordinate legislation. 

That is:

• proposed new subordinate legislation will be compared with a no regulation or a non‑legislative approach;
• for subordinate legislation that is due to be repealed under the Act, a proposal to remake the regulations will be compared with letting the regulations lapse; and
• proposed amendments to existing subordinate legislation will be compared with maintaining the subordinate legislation in its current form.

The regulatory proposal is assessed as imposing a significant burden, cost or disadvantage when it has an impact on the whole community or on groups of people within the community, although the question of how many people constitute a 'sector' of the public is a matter of judgement. Consideration must also be given to whether the regulatory proposal imposes a significant cost or burden on that identified sector of the public.

In considering whether a regulatory proposal will impose a significant burden or cost, the questions that must be considered include:

• Does it impose significant penalties for non-compliance?
• Does it impact on individual rights and liberties?
• Will business, community groups or individuals have to spend funds or devote time to compliance activities, change current practices or seek external advice?
• Does it result in the imposition of additional costs on any particular sector of the public?
• Does the impacted sector have the ability to adapt to the proposed regulatory change?
• Does it impact on multiple parties within the community?
• Does it create new, unique or unequal impacts within the community?
• Does it create clear groups of 'winners' or 'losers' within the community?
• Are the impacts likely to be controversial?

​A useful point of reference is to consider whether the sector which will be affected by the proposed subordinate legislation would consider the impact to be significant, in its circumstances. If the answer to this is yes, then the significance threshold is met. If the answer is no, and this can be supported by evidence, then the significance threshold is not met. If the question cannot be answered, then consultation with potentially impacted sectors of the public would be appropriate.