7.4 Significant Subordinate Legislation
Subordinate Legislation includes regulations, orders in council
of a legislative character and other statutory instruments declared to be
Subordinate Legislation by the Statutory Instruments Act 1992 or by
another Act.
Significant Subordinate Legislation must be submitted to Cabinet prior to
being forwarded to Executive Council. The type of submission used is an
Authority to Forward Significant Subordinate Legislation. "Significant
Subordinate Legislation" can be defined as:
- Subordinate Legislation for which a regulatory impact statement is required under the Statutory Instruments Act 1992; or
- Subordinate Legislation that affects a politically sensitive policy area; or
- Subordinate Legislation that involves major government expenditure for which Cabinet approval has not previously been sought; or
- Subordinate Legislation that the OQPC has refused to certify.
From time to time Ministers and Chief Executive Officers will seek advice on
whether particular Subordinate Legislation is "significant" in the first three
matters above. Such advice may be obtained from the Queensland Office for
Regulatory Efficiency, Treasury Department and from Policy Division, Department
of the Premier and Cabinet.
7.4.1 Compliance certificate
On every occasion when Subordinate Legislation is proposed to be made, a
compliance certificate must accompany the proposed instrument for the
information of Cabinet and Executive Council. The purpose of the certificate is
to expressly indicate that departments have considered the obligations imposed
by Part 5 of the Statutory Instruments Act 1992 and the likely
recommendations of the Parliamentary Scrutiny of Legislation Committee.
It is the responsibility of the departments concerned to prepare compliance
certificates which must be signed by the Chief Executive Officer. Compliance
certificates will take the following form:
STATUTORY INSTRUMENTS ACT 1992
Part 5 - Guidelines
for Regulatory Impact Statements
COMPLIANCE CERTIFICATE
I, (Full Name), Director-General, (Full Title of Department) certify that in
proposing the making of the (Short Title of the Subordinate Legislation),
consideration has been given to the obligations imposed by Part 5 of the
Statutory Instruments Act 1992 and to the likely recommendations of the
Scrutiny of Legislation Committee.
Regulatory Impact Statement Prepared: Yes No
(Full Name)
Director-General
(Full Title of Department)
Date: / /
Refer also to Chapter 7.5 "Parliamentary Scrutiny of Legislation Committee"
7.4.2 Regulatory impact statements
A regulatory impact statement must be prepared for all Subordinate
Legislation which is "...likely to impose appreciable costs on the community or
a part of the community." This requirement is imposed by the Statutory
Instruments Act 1992 (the Act). "Costs" are defined by the Act as
including:
- burdens and disadvantages; and
- direct and indirect economic, environmental and social costs.
The regulatory impact statement must be prepared in accordance with the
requirements of the Act and any relevant guidelines approved by Cabinet.
The Act requires the regulatory impact statement to identify, among other
things, the benefits and costs of the proposed Subordinate Legislation.
The Act requires that the availability of the regulatory impact statement
must be notified in the Queensland Government Gazette and in a newspaper likely
to be read by persons particularly affected by the proposed Subordinate
Legislation. The notice must allow at least 28 days for public comment on the
proposed legislation.
All regulatory impact statements for Subordinate Legislation must be
submitted to Cabinet:
- prior to the regulatory impact statement being notified in the Queensland
Government Gazette and the media - the regulatory impact statement should
accompany an Information Submission to Cabinet; and
- following receipt of public comment and settling of the proposed Subordinate
Legislation with the OQPC, the regulatory impact statement should accompany the
Authority to Forward Significant Subordinate Legislation submission to Cabinet.
Further advice and assistance on regulatory impact statement requirements is
available from the Queensland Office for Regulatory Efficiency within
the Treasury Department of by reference to the Regulatory
Impact Statement Guidelines (external site). Information on
Regulatory Impact Statements is also available in the Queensland Legislation
Handbook.
If the Treasury Department has advised that a public benefit test is also
required for the legislation, it may be possible to undertake a joint public
benefit test/regulatory impact statement process to satisfy both requirements.
Contact the Queensland Office for Regulatory Efficiency and the Economic and
Structural Policy Branch within the Treasury Department as soon as possible for
advice.
7.4.3 Explanatory notes
Under the Legislative Standards Act 1992, explanatory notes must
accompany all Subordinate Legislation tabled in the Legislative Assembly for
which a regulatory impact statement is required. The Legislative Standards
Act 1992 sets out the various matters to be addressed in the explanatory
notes.
However, information is taken to be included in the explanatory note if it is
in the accompanying regulatory impact statement and is referred to in the
explanatory note and, if necessary, supplemented or updated.
The explanatory note must accompany the Authority to Forward Significant
Subordinate Legislation submission to Cabinet.
7.4.4 Office of the Queensland Parliamentary Counsel
The Office of the Queensland Parliamentary Counsel (OQPC) has two roles in
the Subordinate Legislation process.
Firstly, it drafts the Subordinate Legislation. In doing this, it provides
advice to Ministers, departments and agencies on alternative ways of achieving
policy objectives, the application of fundamental legislative principles, and
the Subordinate Legislation process. Early consultation with OQPC is highly
recommended, especially for Subordinate Legislation that may require a
regulatory impact statement.
Secondly, OQPC coordinates processes before and after the making of
Subordinate Legislation. OQPC prepares certified copies of Subordinate
Legislation drafted by OQPC and provides them to departments for submission to
Executive Council. Also, if a department must submit to Executive Council a
regulatory impact statement and explanatory note prepared by the department,
OQPC electronically formats these documents and provides the department with
copies for submission to Executive Council. OQPC also arranges for the
notification, printing and tabling of Subordinate Legislation after making and
for the printing and tabling of any regulatory impact statement and explanatory
note.
Last reviewed: 17 July, 2009
Last updated: 22 July, 2009
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