Interpretation Act 1987 (NSW) s39
A statutory rule shall be published in the Gazette and shall take effect on the day on which it is published, or a later date if specified.  If a rule is published in the Gazette after it is supposed to take effect it is not invalid.  It just means that it takes effect from the day the statutory rule is published in the Gazette, instead of from the earlier day.

Participation – What the legislation says

Subordinate Legislation Act (NSW)
-    s4 – before a statutory rule is made the Minister must ensure that the guidelines from Schedule 1 are complied with.

-    Schedule 1 Guidelines

1) wherever “costs and benefits” is used in the guidelines, it means economic and social costs and benefits.

2) Before a statutory rule is proposed to be made you have to:-
* clearly state the objectives of the rule and the reasons for those objectives.
* check that the objectives are reasonable, appropriate, accord with the principles and spirit of the enabling Act and are not inconsistent with other Acts, statutory rules and government policies.
* state alternative options for achieving the objective
* evaluating the costs and benefits of these alternatives
* consult with people if the statutory rule would impinge on any other area of authority.

3) Minister must have regard to the following principles:-
* administrative decisions should be based on adequate information and consultation.
* a statutory rule should not be passed unless the benefits outweigh the costs to the community – have particular regard to the impact on the economy and on consumers, interest groups and industry and commerce.

4) A statutory rule must be expressed plainly and unambiguously and consistently with the language of the enabling Act.


-    S5 – before a statutory rule is made the minister must ensure a regulatory impact statement is prepared in connection with the substantive matters of the rule.  The statement must comply with Schedule 2.

-    S5 – notice of the rule to be published in the Gazette and a daily newspaper in NSW, as well as any relevant trade/professional publication or journal.  Consultation is to take place with groups who are likely to be affected by the statutory rule.

-    S5 – the nature and extent of publicity is to be determined based on the impact likely to arise for consumers, the public and interest groups.

-    Schedule 2 states the provisions applying to regulatory impact statements – what it must include and that “costs and benefits” includes economic and social costs, both direct and indirect.

-    S6 – regulatory impact statements are not needed when:-
* the proposed statutory rule relates to matters in Schedule 3
* the Minister certifies that public interest requires that the proposed statutory rule should be made without having a statement.

-    Regulatory Impact Statement  Considers the impact the delegated legislation will have.
-    Must communicate through pub newspaper
-    Agency must notify broadly about its intention to create delegated legislation. Inviting comment in a specified time. Gives people three weeks to write their submissions.
-    If Agency publish on the internet, they may reduce the time allowed for submissions.
-    The problems with this are that not all groups are equally resourced.
-    People need the same amount of time to put together solid submissions even though communication technology is improved.
-    All comments and submissions must be equally considered  this has more of a civic republicanism feel, rather than “striking a deal” associated with interest group pluralism.

Point 3: The public is mentioned in NSW legislation unlike Cth legislation. Parliament must form a legislation review committee. Reg Impact Statements
not necessary in all cases

S6(b) - Not necessary to comply with pub consultation provisions, if minister feels in his opinion there is no need to consult. This is a subjective jurisdictional fact: The minister cannot exercise a discretion unless certain circumstances have been fulfilled. The minister’s writing of a certificate depends on the minister’s subjective opinion as to whether consultation is necessary. This gives the minister much more discretion.

S9: As with Cth legis, the failure to comply with consult provisions, does not affect the validity of a statutory rule. Rule wont be knocked back just because public consultation provisions have not been complied with.

-    Schedule 1: guidelines for what needs to be done to prepare statutory rules
-    S1: Law maker must take social and economic considerations into account. Clearly formulate the objectives of the statutory rule. Objectives must be reasonable and appropriate. Courts look at whether the legislation is proportionate
-    State of … v Tanner: You don’t need to extend the objectives and be heavy handed. You must be proportionate in the objectives you achieve. The delegated legislation must not impinge on people’s rights unnecessarily
-    Shanahan v Scott; Foley v Padley; Courts decide whether delegated legislation is within the framework of the enabling legislation
-    (c) alternative options for achieving these objectives must be considered.
-    (d) Agency must weigh up the costs and benfits to society
-    (e) One agency cannot step on toes of another agency. If this occurs need consultation. Legislation often requires the concurrence (agreement) of agencies. But here, consultation does not necessarily mean one agency has to agree to the other, they merely have to consult
-    The words “Have regard to”. Statute tells the minister what the guiding principles are, which is not common
-    Choose the options with the least cost and the most benefit to the community.

3.2 Parliamentary Scrutiny

Commonwealth Senate Standing Order 23
-    The Committee scrutinizes legislation to ensure:-
* it is in accordance with the statute
* it does not trespass unduly on personal rights and liberties
* it does not unduly make the rights of citizens dependent on admin decisions which are not subject to review by their merits or by the judiciary.

Interpretation Act 1987 (NSW) s40 and 41
-    s40 – written notice of making a statutory rule shall be laid before each House of Parliament.

-    s41 – Either House of Parliament may pass a resolution disallowing a statutory rule.  Disallowance has the same effect as repeal of the rule.  If the rule that was disallowed replaced some other rule or Act, the other rule or Act comes back into force when the rule is disallowed.

-    S37 : Parliament has scrutinised the proposed delegated legislation and ensured it doesn’t go ahead
-    S38
-    S42: A principal legislation often doesn’t commence until delegated legislation is in place, because there will be no detail. If delegated legislation is scrutinised and not allowed through by parliament, the Executive will have to go through the whole process of revision
-    S49: A sunsetting process ensures the legislation is only in place as long as needed
-    S50: Del legislation lasts only 10 years. Then it must be reviewed
-    S51: AG can defer the sunsetting
-    S52: Parl can defer the sunsetting
-    On 10th anniversary of the legislation, it needs to be reviewed otherwise the scheme could collapse
-    Delegated legislation  affects everybody. The minister is not considering the impact on individuals, rather the broader impact.

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