8.6 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.
8.6.1 Significant Subordinate Legislation
Significant Subordinate Legislation must be submitted to Cabinet prior to being forwarded to Executive Council. The Subordinate Legislation Impact Analysis Statement (IAS) must be attached to the Cabinet Submission. Significant Subordinate Legislation can be defined as:
- Subordinate legislation for which a Full Impact Analysis Statement (IAS) is required under The Queensland Government Better Regulation Policy (see 8.2.3)
- 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
- 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 regard to the second and third matters above. Such advice may be obtained from the The Cabinet Office in the DPC and QT. In relation to whether a Full IAS is required, guidance should be sought in the first instance from The Queensland Government Better Regulation Policy (see 8.2.3).
8.6.2 Explanatory notes
Under the Legislative Standards Act 1992, explanatory notes must accompany all Subordinate Legislation tabled in the Legislative Assembly. The Legislative Standards Act 1992 sets out the various matters to be addressed in the explanatory notes.
For significant Subordinate Legislation for which a Full IAS is required, the explanatory note should be accompanied by the IAS prepared for the Subordinate Legislation. Information is taken to be included in the explanatory note if it is in the accompanying IAS 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.
More detailed information on explanatory notes is available in the Guidelines to the preparation of explanatory notes, the Handy Hints checklist and the Queensland Legislation Handbook. Agencies are required to adopt the templates set out in these guidelines to ensure a consistent approach across government.
8.6.3 Compliance Certificate
When subordinate legislation is proposed to be made, the proposed instrument must be accompanied by the Parliamentary Counsel’s certification that the instrument is within power and has sufficient regards to fundamental legislative principles. Subordinate legislation that has not been certified may be made only with Cabinet’s approval.
8.6.4 Compatibility with human rights
The Human Rights Act 2019 (the Act) requires human rights to be taken into account when developing legislation. All subordinate legislation tabled in the Legislative Assembly must be accompanied by a Human Rights Certificate.
A Human Rights Certificate must set out whether, in the opinion of the Member who has tabled the subordinate legislation, it is compatible or incompatible with the human rights set out in the Act, and set out reasons that explain how the instrument is compatible or otherwise, and the nature and extent of any incompatibility. Subordinate legislation that is incompatible with human rights will be valid only if the incompatibility is authorised by the empowering provision under which it is made.
Further guidance about how to address human rights when developing policy and legislation can be found at the Queensland Government Human Rights Portal.
