6.1 What is subordinate legislation?

Generally

Under the general law, the term ‘subordinate legislation’ is often used to refer to a legislative instrument made by an entity under a power delegated to the entity by the Parliament.

It can be necessary for legislative power to be delegated for any of the following reasons:

• to save pressure on parliamentary time
• the legislation is too technical or detailed to be suitable for parliamentary consideration
• to deal with rapidly changing or uncertain situations
• to allow for swift action in the case of an emergency.

Particular meaning under the Statutory Instruments Act 1992

This handbook, however, uses the term ‘subordinate legislation’ in a more particular sense, in accordance with the framework established by the Statutory Instruments Act 1992.

Under the Statutory Instruments Act 1992, subordinate legislation refers to a defined subset of statutory instruments.

A ‘statutory instrument’ is an instrument made directly or indirectly under an Act by an entity other than the Parliament. ‘Subordinate legislation’ refers to a statutory instrument that is classified as subordinate legislation under that Act. See sections 6 to 9 of that Act for more details.

There are many types of subordinate legislation. Some of the most common are:

• regulations made by the Governor in Council
• proclamations that provide for the commencement of provisions of an Act
• local laws
• rules
• by-laws.

Sometimes, whether a statutory instrument is classified as subordinate legislation depends on the provisions of the empowering Act. For example, an empowering Act may provide for a statutory instrument to be made by an entity (for example, a board), but require the instrument to be approved by the Governor in Council. Under the Statutory Instruments Act 1992, the instrument is subordinate legislation. Rules and by-laws can be instruments of this nature.

On the other hand, an empowering Act may provide for a statutory instrument to be made by an entity (for example the Minister or the chief executive) with no requirement that it be approved by the Governor in Council. However, the empowering Act may declare the instrument to be subordinate legislation. If so, this instrument is also subordinate legislation under the Statutory Instruments Act 1992. Standards and notices can be instruments of this nature.

Significance of status as subordinate legislation

The significance of whether a statutory instrument is subordinate legislation lies in the fact that subordinate legislation:

• must be drafted by OQPC, unless it is exempt subordinate legislation (see Chapter 6.2)
• is subject to the notification, tabling and disallowance provisions of the Statutory Instruments Act 1992 (see Chapter 6.13)
• is subject to scrutiny by the appropriate portfolio committee (see Chapter 6.14).