Subordinate legislation Australian Law Postgraduate Network
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At the end of this module, you will be able to:
explain the concept of subordinate or delegated legislation
recognise the different terms used to describe subordinate legislation
locate subordinate legislation made under Federal, State or Territory Acts.
Many Acts (known as an enabling or delegating Acts) provide for subordinate or delegated legislation. Enabling Acts stipulate the manner in which the subordinate legislation is to be made and the authority entrusted with the power to make these laws. Subordinate legislation is typically made by the Governor or Governor-General, Ministers of the Crown, Commonwealth or State Government agencies, local government bodies and Rule Committees of courts.
In general, subordinate legislation takes effect on the date of notification in the relevant Government Gazette, unless another date is specified in the legislation itself. This presents some complexities with older legislation. With newer legislation this information is usually available online from the official register of legislation provided by the State, Territory or Commonwealth government.
Further details on the operation of subordinate legislation in each Australian jurisdiction are available from the following Acts:
Traditionally, the process of finding subordinate legislation was very similar to finding printed or consolidated Acts of Parliament. In most cases, subordinate legislation was published first in the form of numbered pamphlets and then later in bound volumes. This assumption no longer holds true in all cases. Some categories of subordinate legislation, such as many disallowable instruments, escape inclusion in the regular printed series. Fortunately, the arrival of online legislative registers has greatly simplified the process of finding subordinate legislation, at least in relation to recent laws.
Commonwealth subordinate legislation is available through the Federal Register of Legislative Instruments (FRLI). The FRLI is accessible from the ComLaw site. The FRLI is an authoritative source for the text of Commonwealth legislative instruments.
Finding recent subordinate legislation is usually a matter of locating the text in the relevant State or Territory register:
Government of New South Wales Legislation
Other online sources of subordinate legislation
Apart from the relevant online registers there are two other useful online sources of subordinate legislation:
AustLII. AustLII''s databases include subordinated legislation for the Commonwealth, States and Territories. It covers consolidated regulations, numbered regulations and repealed regulations (for some jurisdictions). Although AustLII is updated on a regular basis, more recent updates may be available from the online legislative register of the relevant jurisdiction.
TimeBase. TimeBase provides assent, notification, commencement, amendment and repeal details for subordinate legislation in all Australian jurisdictions. TimeBase also includes a product known as LawTracker. This products tracks legislative activity by subject matter or specific Act or Bill and sends automatic email alert when activity occurs. TimeBase is a subscription-only service.
Under the Legislative Instruments Act 2003 (Cth), most forms of Commonwealth subordinate legislation are now known simply as legislative instruments. The terminology in use at the State and Territory level is far more diverse. Commonly used terms include:
By-laws. Typically, by-laws are delegated legislation intended to operate in relation to the conduct of staff within an organisation (such as a University) or to apply in a local government area.
Codes of Practice. Codes of practice are pieces of subordinate legislation made under certain Acts, such as the Fair Trading Act 1987 (NSW).
Disallowable Instruments. A disallowable instrument is a piece of subordinate legislation which is required to be tabled in both Houses of Parliament within a set time, and which can be disallowed (repealed) by either House.
Guidelines. Acts in some States may authorise agencies to establish guidelines in relation to specific areas of commercial or private activity.
Orders. Enabling Acts often include provision for the making of Orders. These may be used to amend the schedules included in Acts or provide exemptions from certain provisions of Acts. Orders in Council are made by a Governor or the Governor-General.
Regulations. Regulations are the most common form of subordinate legislation outside jurisdictions which favour the term statutory instruments. Typically, regulations have a general application (unlike by-laws).
Rules. Rules are made to specify procedures, usually by the Rule Committee of a Commonwealth or State Court.
Statutory Instruments. This term is used at the State or Territory level to describe a range of different instruments made under the authority of an Act of Parliament.
Statutory Rules. This is another general term which includes regulations, by-laws, rules, ordinances and rules.
What terminology is used in the State or Territory in which you live? Try and find as many different terms as you can within 30 minutes. What sources did you use? How successful were you?
This module examined the following topics:
the concept of subordinate or delegated legislation
the different terms used to describe subordinate legislation
finding subordinate legislation made under Federal, State or Territory Acts.