Subordinate Legislation Amendment Act 2010

i Subordinate Legislation Amendment Act 2010 No. 78 of 2010 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purpose 1 2 Commencement 2 3 Principal Act 2 PART 2—GENERAL AMENDMENTS 3 4 Definitions 3 5 Section 5 substituted and new section 5A inserted 4 5 Automatic revocation of statutory rules 4 5A Extension regulations 5 6 Consultation 6 7 Infringements offence consultation certificate 6 8 Sections 7, 8 and 9 substituted 6 7 Regulatory impact statement must be prepared 6 8 Exemption certificates 6 9 Premier's exemption certificate—statutory rules 8 9 Regulatory impact statements 9 10 Comments and submissions 9 11 Notice of decision 10 12 Human rights certificate 10 13 New section 12B inserted 10 12B Certificates and composite certificates 10 14 Section 13 certificate 10 15 Submission of statutory rules to Governor in Council 11 16 Statutory rules to be laid before Parliament 12 17 New section 15A inserted 13 15A Accompanying documents to be sent to Scrutiny Committee 13 18 Statutory rule to be numbered, printed and published 14 19 Review of statutory rules by the Scrutiny Committee 14 20 Disallowance of statutory rule or part of a statutory rule 14 21 Repeal of spent provisions 15 22 New section 35 inserted 15 35 Transitional provisions—Part 2 of Subordinate Legislation Amendment Act 2010 15 -- 1 of 63 -- Section Page ii 23 Guidelines 17 24 Consequential amendments to other Acts 17 PART 3—AMENDMENTS RELATING TO LEGISLATIVE INSTRUMENTS 18 25 Definitions 18 26 New section 3A inserted 22 3A Transitional period—legislative instruments 22 27 New section 4A inserted 23 4A Prescribing instrument to be a legislative instrument or to be exempt 23 28 Exemption certificates 24 29 Human rights certificate 25 30 Part 2A inserted 25 PART 2A—PREPARATION OF LEGISLATIVE INSTRUMENTS 25 12C Consultation—legislative instruments 25 12D Human rights certificate—legislative instruments 26 12E Regulatory impact statement to be prepared for legislative instruments 27 12F Exemption certificates—legislative instruments 28 12G Premier's exemption certificate—legislative instruments 30 12H Content of regulatory impact statements—legislative instruments 31 12I Comments and submissions 33 12J Notice of decision 34 12K Certificates and composite certificates 35 31 Part 3A inserted 35 PART 3A—TABLING AND PUBLICATION OF LEGISLATIVE INSTRUMENTS 35 16A Legislative instrument to be published in the Government Gazette 35 16B Legislative instruments and related documents to be laid before Parliament 36 16C Legislative instrument and accompanying documents to be sent to Scrutiny Committee 37 16D Compliance with this Part and requirements of authorising Act—publication in Government Gazette 38 16E Compliance with this Part and requirements of authorising Act—tabling in Parliament 39 32 Part 4 heading amended 40 33 Part 5 heading amended 40 -- 2 of 63 -- Section Page iii 34 New Part 5A inserted 40 PART 5A—SCRUTINY, SUSPENSION AND DISALLOWANCE OF LEGISLATIVE INSTRUMENTS 40 25A Review of legislative instruments by the Scrutiny Committee 40 25B Suspension of legislative instrument or part of an instrument 41 25C Disallowance 43 25D Effect of disallowance 44 25E Clerk to publish notice of disallowance 45 35 Guidelines 46 36 Advisory role of Scrutiny Committee 46 37 Regulations 46 38 Matter to be included in guidelines 47 39 New section 16F inserted 47 16F Instrument maker to ensure consolidated version of legislative instrument is available 47 PART 4—GENERAL 49 40 New section 36 inserted 49 36 Regulations dealing with transitional matters— Subordinate Legislation Amendment Act 2010 49 41 Repeal of amending Act 50 __________________ SCHEDULES 51 SCHEDULE 1—Consequential Amendments Relating to References to Repealed Subordinate Legislation Act 1962 51 1 Accident Compensation Act 1985 51 2 Agricultural and Veterinary Chemicals (Control of Use) Act 1992 51 3 Australian Grands Prix Act 1994 51 4 Cancer Act 1958 51 5 Catchment and Land Protection Act 1994 52 6 Control of Weapons Act 1990 52 7 Corporations (Victoria) Act 1990 52 8 Country Fire Authority Act 1958 52 9 Courts (Case Transfer) Act 1991 52 10 Docklands Act 1991 52 11 Domestic Animals Act 1994 53 12 Emergency Services Superannuation Act 1986 53 13 Environment Protection Act 1970 53 14 Flora and Fauna Guarantee Act 1988 54 -- 3 of 63 -- Section Page iv 15 Health Services Act 1988 54 16 House Contracts Guarantee Act 1987 54 17 Livestock Disease Control Act 1994 54 18 Marine Act 1988 54 19 Meat Industry Act 1993 55 20 Mineral Resources (Sustainable Development) Act 1990 55 21 Museums Act 1983 55 22 Partnership Act 1958 55 23 Petroleum (Submerged Lands) Act 1982 55 24 Private Agents Act 1966 55 25 Royal Botanic Gardens Act 1991 56 26 Second-Hand Dealers and Pawnbrokers Act 1989 56 27 State Electricity Commission Act 1958 56 28 State Employees Retirement Benefits Act 1979 56 29 State Owned Enterprises Act 1992 56 30 State Sport Centres Act 1994 56 31 State Superannuation Act 1988 57 32 Subdivision Act 1988 57 33 Transport Superannuation Act 1988 57 34 Treasury Corporation of Victoria Act 1992 57 35 Victorian Funds Management Corporation Act 1994 57 36 Water Act 1989 57 37 Wildlife Act 1975 58 ═══════════════ ENDNOTES 59 -- 4 of 63 -- 1 Subordinate Legislation Amendment Act 2010 † No. 78 of 2010 [Assented to 19 October 2010] The Parliament of Victoria enacts: PART 1—PRELIMINARY 1 Purpose The main purpose of this Act is to amend the Subordinate Legislation Act 1994— (a) to make various amendments to facilitate the operation of that Act; and (b) to extend the application of certain provisions of that Act to legislative instruments. Victoria -- 5 of 63 -- Part 1—Preliminary Subordinate Legislation Amendment Act 2010 No. 78 of 2010 2 2 Commencement (1) This Act, except Part 3, comes into operation on 1 January 2011. (2) Part 3 of this Act (except section 39) comes into operation on 1 July 2011. (3) Section 39 comes into operation on 1 January 2013. 3 Principal Act In this Act, the Subordinate Legislation Act 1994 is called the Principal Act. __________________ s. 2 See: Act No. 104/1994. Reprint No. 3 as at 1 January 2007 and amending Act No. 9/2008. LawToday: www. legislation. vic.gov.au -- 6 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 3 PART 2—GENERAL AMENDMENTS 4 Definitions (1) In section 3 of the Principal Act insert the following definitions— "extension certificate means a certificate issued under section 5A(1) by the responsible Minister; extension regulation means a regulation made under section 5A extending the operation of a statutory rule; human rights certificate means a certificate issued by the responsible Minister under section 12A(1); human rights exemption certificate means a certificate issued by the responsible Minister under section 12A(3);". (2) In section 3 of the Principal Act— (a) for the definition of exemption certificate substitute— "exemption certificate means a certificate issued in relation to a proposed statutory rule by— (a) the responsible Minister under section 8; or (b) the Premier under section 9;"; (b) the definition of exception certificate is repealed. s. 4 -- 7 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 4 (3) For the definition of responsible Minister in section 3 of the Principal Act substitute— "responsible Minister means— (a) in relation to a statutory rule or proposed statutory rule which is an extension regulation, the Minister administering the authorising Act under which the statutory rule which would otherwise be revoked by section 5 is made; (b) in relation to any other statutory rule or proposed statutory rule, the Minister administering the authorising Act;". 5 Section 5 substituted and new section 5A inserted For section 5 of the Principal Act substitute— "5 Automatic revocation of statutory rules (1) Subject to section 5A, unless sooner revoked, a statutory rule is revoked by virtue of this section on the day which is the tenth anniversary of the making of the statutory rule. Note Section 25 of the Interpretation of Legislation Act 1984 provides that if a subordinate instrument is expressed to cease to have effect on a particular day, the subordinate instrument continues in operation until the last moment of the day. (2) On the revocation of a statutory rule by this section— (a) any other statutory rule that amends the statutory rule being revoked; and s. 5 -- 8 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 5 (b) any provision in any other statutory rule that amends the statutory rule being revoked— is also revoked by virtue of this section, insofar as the amending statutory rule or provision relates to the statutory rule revoked by this section. 5A Extension regulations (1) Subject to subsection (3), the responsible Minister may issue a certificate if satisfied that— (a) due to special circumstances, there is insufficient time to enable compliance with Part 2 in respect of a proposed statutory rule before the statutory rule it is intended to replace is to be revoked by section 5; and (b) the statutory rule which would otherwise be revoked by section 5 should be extended for a specified period not exceeding 12 months. (2) An extension certificate must specify the special circumstances, including the reasons why the extension is necessary. (3) Before issuing an extension certificate, the responsible Minister must obtain a certificate from the Premier which specifies that the Premier has agreed that the statutory rule which would otherwise be revoked by section 5 should be extended for the specified period. (4) On the recommendation of the responsible Minister, the Governor in Council may make a regulation under this Act extending the operation of a statutory rule that would s. 5 -- 9 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 6 otherwise be revoked by section 5 for a period specified in the regulation. (5) Only one extension regulation can be made in respect of the operation of a statutory rule.". 6 Consultation (1) In section 6(b) of the Principal Act, for "an appreciable economic or social burden" substitute "a significant economic or social burden". (2) In section 6(c) of the Principal Act, for "given to the Scrutiny Committee as soon as practicable after the statutory rule is made" substitute "issued for that statutory rule". 7 Infringements offence consultation certificate Section 6A(2) and (3) of the Principal Act are repealed. 8 Sections 7, 8 and 9 substituted For sections 7, 8 and 9 of the Principal Act substitute— "7 Regulatory impact statement must be prepared (1) The responsible Minister must ensure that a regulatory impact statement is prepared for a proposed statutory rule. (2) Subsection (1) does not apply if an exemption certificate is issued for the proposed statutory rule. 8 Exemption certificates (1) The responsible Minister may issue an exemption certificate in writing certifying that, in the opinion of the Minister— s. 6 -- 10 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 7 (a) the proposed statutory rule would not impose a significant economic or social burden on a sector of the public; or (b) the proposed statutory rule is a rule which relates only to a court or tribunal or the procedure, practice or costs of a court or tribunal; or (c) the proposed statutory rule is of a fundamentally declaratory or machinery nature; or (d) the proposed statutory rule only increases fees in respect of a financial year by an amount not exceeding the annual rate approved by the Treasurer in relation to the State Budget for the purposes of this section; or (e) the proposed statutory rule— (i) only prescribes under section 4(1)(a) an instrument or class of instrument to be a statutory rule; or (ii) only exempts under section 4(1)(b) an instrument or class of instrument from the operation of this Act; or (iii) is an extension regulation; or (f) the proposed statutory rule is required under a national uniform legislation scheme and an assessment of costs and benefits has been undertaken under that scheme; or (g) the proposed statutory rule deals with administration or procedures within or as between— s. 8 -- 11 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 8 (i) Departments or declared authorities within the meaning of the Public Administration Act 2004; or (ii) Departments within the meaning of the Parliamentary Administration Act 2005; or (h) notice of the proposed statutory rule would render the proposed statutory rule ineffective or would unfairly advantage or disadvantage any person likely to be affected by the proposed statutory rule. (2) For the purposes of subsection (1)(d), in calculating the amount of an increase, the amount is deemed to have been calculated in accordance with subsection (1)(d) if the calculation is made to the nearest whole $1. (3) An exemption certificate must specify the reasons for the exemption. 9 Premier's exemption certificate— statutory rules (1) The Premier may issue a certificate in writing that, in the Premier's opinion, in the special circumstances of the case the public interest requires that the proposed statutory rule be made without complying with section 7(1). (2) The Premier must not issue an exemption certificate unless— (a) the proposed statutory rule is to expire on or before the day which is 12 months after the first day on which any provision of the statutory rule is to come into operation; and s. 8 -- 12 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 9 (b) the relevant responsible Minister has given the Premier written reasons why the public interest requires that the proposed statutory rule be made without complying with section 7(1). (3) An exemption certificate issued under subsection (1) must— (a) specify the reasons for the exemption; and (b) be signed by the Premier; and (c) be dated with the date of signing.". 9 Regulatory impact statements (1) After section 10(1)(b) of the Principal Act insert— "(ba) in the case of a proposed statutory rule which amends fees in an existing statutory rule, a table comparing the proposed fees and existing fees, including an indication of the percentage increase or decrease for each fee;". (2) Section 10(5) of the Principal Act is repealed. 10 Comments and submissions For section 11(3) of the Principal Act substitute— "(3) The responsible Minister must ensure that all comments and submissions are considered before the statutory rule is made. Note See also section 15A.". s. 9 -- 13 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 10 11 Notice of decision After section 12(3) of the Principal Act insert— "(4) A failure to comply with subsection (1), (2) or (3) does not affect the operation or effect of the statutory rule but the Scrutiny Committee may report the failure to each House of the Parliament.". 12 Human rights certificate In section 12A(3) of the Principal Act— (a) paragraph (b)(iii) is repealed; and (b) after paragraph (b) insert— "(c) the proposed statutory rule is an extension regulation.". 13 New section 12B inserted After section 12A of the Principal Act insert— "12B Certificates and composite certificates (1) A certificate issued under this Part must be— (a) signed by the responsible Minister issuing the certificate; and (b) dated with the date of signing. (2) A certificate issued under this Part may be a composite certificate which incorporates the certificates required by sections 6, 6A, 8 and 10(4) or any combination of those certificates.". 14 Section 13 certificate (1) In section 13(b)(iii) of the Principal Act, for "onus" substitute "legal burden". s. 11 -- 14 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 11 (2) At the end of section 13 of the Principal Act insert— "(2) The Chief Parliamentary Counsel may qualify a section 13 certificate by specifying that the certificate applies only to the proposed statutory rule and not to any matter contained in a document applied, adopted or incorporated by the statutory rule if— (a) the statutory rule to which the certificate relates makes provision for or in relation to a matter by applying, adopting or incorporating matter contained in a document; and (b) the matter applied, adopted or incorporated is of such a detailed technical nature that the Chief Parliamentary Counsel is not qualified to advise about the matter. (3) A section 13 certificate may specify that the certificate relates to the circumstances as at the date of the certificate.". 15 Submission of statutory rules to Governor in Council (1) In section 14(a) of the Principal Act for "4" substitute "3". (2) In section 14(c) of the Principal Act omit "exception certificate or". (3) After section 14(d) of the Principal Act insert— "(da) if the proposed statutory rule is an extension regulation, a copy of the extension certificate and a copy of the Premier's certificate under section 5A(3); (db) if consultation was required under section 6, a copy of the consultation certificate issued under that section;". s. 15 -- 15 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 12 16 Statutory rules to be laid before Parliament (1) Insert the following heading to section 15 of the Principal Act— "Statutory rules and related documents to be laid before Parliament". (2) After section 15(1) of the Principal Act insert— "(1A) If any of the following documents have been issued or given in respect of the statutory rule, a copy of the document must also be laid before each House of the Parliament— (a) an extension certificate and the Premier's certificate under section 5A(3); (b) a certificate issued under section 6; (c) a certificate issued under section 6A; (d) an exemption certificate; (e) a compliance certificate under section 10(4); (f) a human rights certificate; (g) a human rights exemption certificate; (h) a section 13 certificate; (i) the accompanying recommendation to the Governor in Council to make the statutory rule.". (3) In section 15(2) of the Principal Act for "subsection (1)" substitute "subsection (1) or (1A)". s. 16 -- 16 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 13 17 New section 15A inserted After section 15 of the Principal Act insert— "15A Accompanying documents to be sent to Scrutiny Committee (1) When a statutory rule is made, the responsible Minister must ensure that a copy of each of the following is given to the Scrutiny Committee— (a) any applicable document referred to in section 15(1A) relating to the statutory rule; (b) if an exemption certificate has been issued under section 9 by the Premier, the reasons given by the relevant responsible Minister to the Premier as to why the public interest requires that the proposed statutory rule be made without complying with section 7(1); (c) if a regulatory impact statement has been prepared— (i) the regulatory impact statement for the statutory rule; and (ii) a copy of all comments and submissions received. (2) The documents referred to in subsection (1) must be given to the Scrutiny Committee no later than the later of— (a) 10 working days after the making of the statutory rule; or (b) 10 working days after the establishment of the Committee. (3) A failure to comply with subsection (2) does not affect the operation or effect of the statutory rule.". s. 17 -- 17 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 14 18 Statutory rule to be numbered, printed and published For section 17(2) of the Principal Act substitute— "(2) After the making of a statutory rule, notice of the making of the statutory rule must be published— (a) in the next general edition of the Government Gazette published after the making of the statutory rule; or (b) a special edition of the Government Gazette within 10 working days of that making.". 19 Review of statutory rules by the Scrutiny Committee In section 21(1)(b)(iii) of the Principal Act for "onus" substitute "legal burden". 20 Disallowance of statutory rule or part of a statutory rule (1) For section 23(1)(a) of the Principal Act substitute— "(a) the authorising Act under which the statutory rule is made states that the statutory rule is subject to disallowance by the Parliament or by a House of the Parliament; or". (2) In section 23(1)(c) of the Principal Act for "section 15(1)" substitute "section 15(1) or (1A)". (3) For section 23(2)(a) of the Principal Act substitute— "(a) a notice of a resolution to disallow the statutory rule is given in a House of the Parliament— s. 18 -- 18 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 15 (i) on or before the 18th sitting day of that House after the rule is laid before that House; or (ii) in the case of a failure to comply with section 15(1) in respect of a statutory rule, on or before the 24th sitting day of that House after the notice of the making of the statutory rule has been published in the Government Gazette under section 17(2); and". 21 Repeal of spent provisions (1) Section 33(1) of the Principal Act is repealed. (2) Section 34 of the Principal Act is repealed. 22 New section 35 inserted At the end of Part 8 of the Principal Act insert— "35 Transitional provisions—Part 2 of Subordinate Legislation Amendment Act 2010 (1) An exception certificate issued under section 8 as in force immediately before 1 January 2011 is to be taken, on and from 1 January 2011, to be an exemption certificate issued on the equivalent ground under section 8 as substituted by Part 2 of the Subordinate Legislation Amendment Act 2010. (2) An exemption certificate issued under section 9 as in force immediately before 1 January 2011 is to be taken, on and from 1 January 2011, to be an exemption certificate issued on the equivalent ground under section 8 as substituted by Part 2 of the Subordinate Legislation Amendment Act 2010. s. 21 -- 19 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 16 (3) A Premier's certificate issued under section 9(3) as in force immediately before 1 January 2011— (a) is to be taken, on and from 1 January 2011, to be an exemption certificate issued by the Premier under section 9 as substituted by Part 2 of the Subordinate Legislation Amendment Act 2010; and (b) has full force and effect despite not being accompanied by the Minister's written reasons under section 9(2)(b) or not including the reason for the exemption under section 9(3)(a). (4) If a statutory rule has been made before 1 January 2011 but section 15 as in force immediately before 1 January 2011 has not been complied with before that date— (a) section 15 as amended by Part 2 of the Subordinate Legislation Amendment Act 2010 and section 15A must be complied with; and (b) for that purpose, any certificate or other documentation required by this Act which was prepared before 1 January 2011 is taken to comply with this Act as amended. (5) If, before 1 January 2011, a regulatory impact statement has been prepared in accordance with Part 2 as in force immediately before 1 January 2011 for a proposed statutory rule but that statutory rule is not made before 1 January 2011, the regulatory impact statement prepared in accordance with Part 2 as in force immediately before 1 January 2011 is taken s. 22 -- 20 of 63 -- Part 2—General Amendments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 17 to comply with this Act as amended by Part 2 of the Subordinate Legislation Amendment Act 2010 for the purposes of the statutory rule to which it relates.". 23 Guidelines In Schedule 1 to the Principal Act, in clause 6, for "an appreciable cost or" substitute "a significant economic or social". 24 Consequential amendments to other Acts An Act specified in a heading to an item in Schedule 1 is amended as set out in that item. __________________ s. 23 -- 21 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 18 PART 3—AMENDMENTS RELATING TO LEGISLATIVE INSTRUMENTS 25 Definitions (1) Insert the following definitions in section 3 of the Principal Act— "instrument maker, in relation to a legislative instrument or proposed legislative instrument, means the entity empowered to make that instrument under the authorising Act; legislative instrument means an instrument made under an Act or statutory rule that is of a legislative character but does not include— (a) a statutory rule; or (b) a local law made under Part 5 of the Local Government Act 1989 and any other instrument made by a council under that Act or any other Act; or (c) a proclamation of commencement of an Act or any provision of an Act; or (d) a planning scheme or an amendment to a planning scheme under the Planning and Environment Act 1987; or (e) the Victoria Planning Provisions within the meaning of the Planning and Environment Act 1987; or (f) a practice note or practice direction issued by or on behalf of a court or tribunal or an instrument which relates only to a court or tribunal or the procedure, practice or costs of a court or tribunal; or s. 25 -- 22 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 19 (g) an instrument of purely administrative character; or (h) a prescribed instrument or a prescribed class of instrument; public sector body has the same meaning as it has in the Public Administration Act 2004;". (2) At the end of section 3 of the Principal Act insert— "(2) For the avoidance of doubt, but without limiting paragraph (g) of the definition of legislative instrument, instruments of purely administrative character for the purposes of this Act include, but are not limited to, the following— (a) an instrument of delegation; (b) an evidentiary certificate; (c) an instrument of appointment or an instrument which changes conditions or terms of appointment; (d) an instrument which has the sole purpose of giving notice of the making of another instrument; (e) an instrument which grants, renews, varies, transfers, suspends or cancels a lease, licence or permit that authorises a specified entity to do any act or not to do any act or an instrument refusing to grant, renew, vary or transfer such a lease, licence or permit; (f) an instrument that registers a specified entity or an instrument refusing to register a specified entity; s. 25 -- 23 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 20 (g) an instrument that renews, varies, transfers, suspends or cancels a registration of a specified entity or an instrument refusing to renew, vary, transfer, suspend or cancel a registration of a specified entity; (h) an instrument imposing conditions on a lease, licence, permit or registration held by a specified entity; (i) an instrument for the principal purpose of taking disciplinary or enforcement action to ensure compliance with an Act, subordinate instrument or any other law.". (3) In section 3 of the Principal Act— (a) for the definition of amendment substitute— "amendment, in relation to a statutory rule or legislative instrument, means the insertion, omission or substitution of words or expressions in the statutory rule or legislative instrument by another statutory rule, legislative instrument, other subordinate instrument or by an Act;"; (b) for the definition of authorising Act substitute— "authorising Act means the Act or provision of an Act under which a statutory rule or a proposed statutory rule or a legislative instrument or a proposed legislative instrument is, or is to be, made or purports to be made;"; s. 25 -- 24 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 21 (c) for the definition of compliance certificate substitute— "compliance certificate means a certificate issued by the responsible Minister— (a) in relation to a statutory rule or proposed statutory rule, under section 10(4); (b) in relation to a legislative instrument or proposed legislative instrument, under section 12H;"; (d) for the definition of exemption certificate substitute— "exemption certificate means a certificate issued— (a) in relation to a proposed statutory rule, by the responsible Minister under section 8(1) or the Premier under section 9; (b) in relation to a proposed legislative instrument, by the responsible Minister under section 12F or the Premier under section 12G;"; (e) for the definition of human rights certificate substitute— "human rights certificate means a certificate issued by the responsible Minister— (a) in relation to a proposed statutory rule, under section 12A(1); or (b) in relation to a proposed legislative instrument, under section 12D(1);"; s. 25 -- 25 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 22 (f) for the definition of human rights exemption certificate substitute— "human rights exemption certificate means a certificate issued by the responsible Minister— (a) in relation to a proposed statutory rule, under section 12A(3); or (b) in relation to a proposed legislative instrument, under section 12D(3);"; (g) for the definition of responsible Minister substitute— "responsible Minister means the Minister administering the authorising Act under which— (a) a statutory rule or a legislative instrument is made; or (b) a proposed statutory rule or a proposed legislative instrument is to be made;". 26 New section 3A inserted After section 3 of the Principal Act insert— "3A Transitional period—legislative instruments For a period of 2 years from 1 July 2011, any legislative instrument made during that period is not invalid merely because of a failure— (a) to characterise or identify that instrument as a legislative instrument; and s. 26 -- 26 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 23 (b) to comply with the requirements of this Act applying to legislative instruments.". 27 New section 4A inserted After section 4 of the Principal Act insert— "4A Prescribing instrument to be a legislative instrument or to be exempt (1) The Governor in Council may make regulations under this Act— (a) prescribing an instrument or a class of instrument for the purposes of paragraph (h) of the definition of legislative instrument; (b) prescribing an instrument or a class of instrument to be, or not to be, a legislative instrument or class of legislative instrument for the purposes of this Act or any specified provision or provisions of this Act, whether or not subject to conditions; (c) exempting an instrument or a class of instrument that is a legislative instrument from the operation of this Act or any specified provision or specified provisions of this Act, whether or not subject to conditions. (2) If an instrument or a class of instrument is prescribed to be a legislative instrument or legislative instruments— (a) this Act applies to the instrument or class of instrument; and (b) subject to this Act, any provision of the authorising Act under which the instrument or class of instrument is made which is inconsistent with, or s. 27 -- 27 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 24 duplicates, any provision of this Act does not apply to the instrument or class of instrument. (3) If an instrument or a class of instrument is prescribed as exempt— (a) the specified provision or provisions of this Act from which the instrument is prescribed to be exempt does not, or do not, apply to the instrument or class of instrument; and (b) unless provision is made to the contrary by the authorising Act under which it is made, the instrument or a provision of it comes into operation— (i) at the beginning of the day on which the instrument is published in the Government Gazette; or (ii) at the beginning of a later day that is expressed in the instrument as the day on which the instrument or provision (as the case requires) comes into operation.". 28 Exemption certificates After section 8(1)(e)(iii) of the Principal Act insert— "(iv) only prescribes under section 4A(1)(a) an instrument or a class of instrument for the purposes of paragraph (h) of the definition of legislative instrument; or (v) only prescribes under section 4A(1)(b) an instrument or a class of instrument to be, or not to be, a legislative instrument or class of legislative instrument for the purposes of this Act or any specified provision or provisions of this Act; or s. 28 -- 28 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 25 (vi) only exempts under section 4A(1)(c) an instrument or a class of instrument from the operation of this Act or any specified provision of this Act; or". 29 Human rights certificate After section 12A(3)(b)(ii) of the Principal Act insert— "(iia) prescribes under section 4A(1)(a) an instrument or a class of instrument for the purposes of paragraph (h) of the definition of legislative instrument; or (iib) prescribes under section 4A(1)(b) an instrument or a class of instrument to be, or not to be, a legislative instrument or class of legislative instrument for the purposes of this Act or any specified provision or provisions of this Act; or". 30 Part 2A inserted After Part 2 of the Principal Act insert— "PART 2A—PREPARATION OF LEGISLATIVE INSTRUMENTS 12C Consultation—legislative instruments The responsible Minister must ensure that where the guidelines require consultation— (a) there is consultation in accordance with the guidelines with any other Minister whose area of responsibility may be affected by a proposed legislative instrument so as to avoid any overlap or conflict with any other existing or proposed statutory rule, legislative instrument or other legislation; s. 29 -- 29 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 26 (b) there is consultation in accordance with the guidelines with any sector of the public on which a significant economic or social burden may be imposed by a proposed legislative instrument so that the need for, and the scope of, the proposed legislative instrument is considered; (c) a certificate of consultation in accordance with the guidelines is issued for the proposed legislative instrument. 12D Human rights certificate—legislative instruments (1) The responsible Minister must ensure that a human rights certificate is prepared in respect of a proposed legislative instrument unless the proposed legislative instrument is exempted under subsection (3). (2) A human rights certificate for a legislative instrument must— (a) certify whether, in the opinion of the responsible Minister, the proposed legislative instrument does or does not limit any human right set out in the Charter of Human Rights and Responsibilities; and (b) if it certifies that, in the opinion of the responsible Minister, the proposed legislative instrument does limit a human right set out in the Charter of Human Rights and Responsibilities, set out— (i) the nature of the human right limited; and (ii) the importance of the purpose of the limitation; and s. 30 -- 30 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 27 (iii) the nature and extent of the limitation; and (iv) the relationship between the limitation and its purpose; and (v) any less restrictive means reasonably available to achieve the purpose that the limitation seeks to achieve. (3) Subsection (1) does not apply if the responsible Minister certifies in writing that, in the Minister's opinion, the proposed legislative instrument is of not more than 12 months duration and is necessary to respond to— (a) a public emergency; or (b) an urgent public health issue or an urgent public safety issue; or (c) likely or actual significant damage to the environment, resource sustainability or the economy. 12E Regulatory impact statement to be prepared for legislative instruments (1) Subject to subsection (2), the responsible Minister must ensure that a regulatory impact statement is prepared by or on behalf of the instrument maker for a proposed legislative instrument. (2) If the Governor in Council is the instrument maker for a proposed legislative instrument, the Governor in Council is not required to prepare a regulatory impact statement and the responsible Minister must ensure that a regulatory impact statement is prepared for the proposed legislative instrument. s. 30 -- 31 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 28 (3) Subsections (1) and (2) do not apply if an exemption certificate is issued for the proposed legislative instrument. 12F Exemption certificates—legislative instruments (1) The responsible Minister may issue an exemption certificate in writing certifying that, in the opinion of the Minister— (a) the proposed legislative instrument would not impose a significant economic or social burden on a sector of the public; or (b) the proposed legislative instrument is of a fundamentally declaratory or machinery nature; or (c) the proposed legislative instrument only increases fees in respect of a financial year by an amount not exceeding the annual rate approved by the Treasurer in relation to the State Budget for the purposes of section 8; or (d) the proposed legislative instrument would only impose a burden on a public sector body; or (e) the proposed legislative instrument is an order made under the Administrative Arrangements Act 1983; or (f) the proposed legislative instrument is required under a national uniform legislation scheme and an assessment of costs and benefits has been undertaken under that scheme; or s. 30 -- 32 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 29 (g) the proposed legislative instrument is required to undergo, or has undergone, an analytical and consultation process which, in the opinion of the responsible Minister, is equivalent to the process for a regulatory impact statement required under section 12E; or (h) the proposed legislative instrument is of not more than 12 months duration and is necessary to respond to— (i) a public emergency; or (ii) an urgent public health issue or an urgent public safety issue; or (iii) likely or actual significant damage to the environment, resource sustainability or the economy; or (i) the proposed legislative instrument deals with administration or procedures within or as between— (i) Departments or declared authorities within the meaning of the Public Administration Act 2004; or (ii) Departments within the meaning of the Parliamentary Administration Act 2005; or (j) notice of the proposed legislative instrument would render the proposed legislative instrument ineffective or would unfairly advantage or disadvantage any person likely to be affected by the proposed legislative instrument; or s. 30 -- 33 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 30 (k) the proposed legislative instrument is made under a statutory rule and the regulatory impact statement for that statutory rule has adequately considered the impact of the proposed legislative instrument. (2) For the purposes of subsection (1)(c), in calculating the amount of an increase the amount is deemed to have been calculated in accordance with subsection (1)(c) if the calculation is made to the nearest whole $1. (3) An exemption certificate must specify the reasons for the exemption. 12G Premier's exemption certificate— legislative instruments (1) The Premier may issue a certificate in writing that, in the Premier's opinion, in the special circumstances of the case the public interest requires that the proposed legislative instrument be made without complying with section 12E. (2) The Premier must not issue an exemption certificate unless— (a) the proposed legislative instrument is to expire on or before the day which is 12 months after the first day on which any provision of the legislative instrument is to come into operation; and (b) the relevant responsible Minister has given the Premier written reasons why the public interest requires that the proposed legislative instrument be made without complying with section 12E. s. 30 -- 34 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 31 (3) An exemption certificate issued under subsection (1) must— (a) specify the reasons for the exemption; and (b) be signed by the Premier; and (c) be dated with the date of signing. 12H Content of regulatory impact statements—legislative instruments (1) A regulatory impact statement for a proposed legislative instrument must include— (a) a statement of the objectives of the proposed legislative instrument; (b) a statement explaining the effect of the proposed legislative instrument, including, in the case of a proposed legislative instrument which amends an existing legislative instrument, the effect on the operation of the existing legislative instrument; (c) in the case of a proposed legislative instrument which amends fees in a legislative instrument, a table comparing the proposed fees and existing fees, including an indication of the percentage increase or decrease for each fee; (d) a statement of other practicable means of achieving those objectives, including other regulatory as well as non-regulatory options; (e) an assessment of the costs and benefits of the proposed legislative instrument and of any other practicable means of achieving the same objectives; s. 30 -- 35 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 32 (f) the reasons why the other means are not appropriate; (g) any other matters specified by the guidelines; (h) a draft copy of the proposed legislative instrument. (2) The assessment of the costs and benefits must include an assessment of the economic, environmental and social impact and the likely administration and compliance costs including resource allocation costs. (3) The responsible instrument maker must ensure that independent advice as to the adequacy of the regulatory impact statement and of the assessment included in the regulatory impact statement is obtained and considered in accordance with the guidelines. (4) Before a legislative instrument for which a regulatory impact statement is required is made, the responsible Minister must give a certificate in writing specifying— (a) that the requirements relating to regulatory impact statements for legislative instruments in this Act and the guidelines have been complied with; and (b) that in his or her opinion the regulatory impact statement prepared by the instrument maker adequately assesses the likely impact of the proposed legislative instrument. s. 30 -- 36 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 33 12I Comments and submissions (1) Subject to subsection (2), if a regulatory impact statement has been prepared for a proposed legislative instrument, the responsible instrument maker must ensure that a notice in accordance with subsection (3) is published in— (a) the Government Gazette; and (b) a daily newspaper circulating generally throughout Victoria; and (c) if the responsible instrument maker considers it appropriate, in such trade, professional or public interest publications as the responsible instrument maker determines. (2) If the Governor in Council is the instrument maker for a proposed legislative instrument, the responsible Minister must ensure that the notice required by subsection (1) is published in accordance with that subsection. (3) A notice must— (a) state the reason for, and the objectives of, the proposed legislative instrument; (b) summarise the results of the regulatory impact statement; (c) specify where a copy of the regulatory impact statement and of the proposed legislative instrument can be obtained; (d) invite public comments or submissions within the time specified in the notice, being not less than 28 days from the publication of the notice. s. 30 -- 37 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 34 (4) The responsible instrument maker, or if the Governor in Council is the instrument maker, the responsible Minister, must ensure that all comments and submissions are considered before the legislative instrument is made. 12J Notice of decision (1) Subject to subsection (2), if a regulatory impact statement has been prepared for a proposed legislative instrument, the responsible instrument maker must ensure that a notice advising of the decision to make or not to make the proposed legislative instrument is published in— (a) the Government Gazette; and (b) a daily newspaper circulating generally throughout Victoria. (2) If the Governor in Council is the instrument maker for a proposed legislative instrument, the responsible Minister must ensure that the notice required by subsection (1) is published in accordance with that subsection. (3) Notice of a decision not to make a proposed legislative instrument must be published as soon as practicable after the decision has been made. (4) Notice of a decision to make a proposed legislative instrument must be published before the proposed legislative instrument is made. (5) A failure to comply with subsection (1), (2), (3) or (4) does not affect the operation or effect of the legislative instrument but the Scrutiny Committee may report the failure to each House of the Parliament. s. 30 -- 38 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 35 12K Certificates and composite certificates (1) A certificate issued under this Part must be— (a) signed by the responsible Minister issuing the certificate; and (b) dated with the date of signing. (2) A certificate issued under this Part may be a composite certificate which incorporates the certificates required by sections 12C, 12F and 12H or any combination of those certificates. __________________". 31 Part 3A inserted After Part 3 of the Principal Act insert— "PART 3A—TABLING AND PUBLICATION OF LEGISLATIVE INSTRUMENTS 16A Legislative instrument to be published in the Government Gazette (1) Subject to subsections (2) and (3), after the making of a legislative instrument, the instrument must be published in full— (a) in the next general edition of the Government Gazette; or (b) in a special edition of the Government Gazette within 10 working days after the making of the legislative instrument. (2) If, in accordance with the guidelines, a legislative instrument is unsuitable to be published in full, notice of the making of the legislative instrument and where it is available must be published— s. 31 -- 39 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 36 (a) in the next general edition of the Government Gazette; or (b) a special edition of the Government Gazette within 10 working days after the making of the legislative instrument. 16B Legislative instruments and related documents to be laid before Parliament (1) On or before the 6th sitting day after a legislative instrument has been published in the Government Gazette under section 16A, a copy of the legislative instrument must be laid before each House of the Parliament. (2) If any of the following documents have been issued or given in respect of the legislative instrument under Part 2A, a copy of the document must be laid before each House of the Parliament with the legislative instrument— (a) a certificate issued under section 12C; (b) an exemption certificate; (c) a compliance certificate under section 12H; (d) a human rights certificate; (e) a human rights exemption certificate. (3) A failure to comply with subsection (1) or (2) does not affect the operation or effect of the legislative instrument but the Scrutiny Committee may report the failure to each House of the Parliament. (4) A copy of each legislative instrument laid under subsection (1) must as soon as possible after being so laid be posted or delivered to each member of Parliament who s. 31 -- 40 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 37 has requested a copy of that legislative instrument. 16C Legislative instrument and accompanying documents to be sent to Scrutiny Committee (1) When a legislative instrument is made, the responsible Minister must ensure that a copy of each of the following is given to the Scrutiny Committee— (a) the legislative instrument; (b) any applicable document referred to in section 16B(2) relating to the legislative instrument; (c) if an exemption certificate has been issued under section 12G by the Premier, the reasons given by the relevant responsible Minister to the Premier as to why the public interest requires that the proposed legislative instrument be made without complying with section 12E; (d) if a regulatory impact statement has been prepared— (i) the regulatory impact statement for the legislative instrument; and (ii) a copy of all comments and submissions received. (2) The documents referred to in subsection (1) must be given to the Scrutiny Committee no later than the later of— (a) 10 working days after the making of the legislative instrument; or (b) 10 working days after the establishment of the Committee. s. 31 -- 41 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 38 (3) A failure to comply with subsection (1) or (2) does not affect the operation or effect of the legislative instrument. 16D Compliance with this Part and requirements of authorising Act— publication in Government Gazette (1) If the authorising Act for a legislative instrument requires publication in the Government Gazette of the instrument, compliance with the requirements of that authorising Act is taken to be compliance with section 16A(1). (2) If the authorising Act for a legislative instrument requires publication in the Government Gazette of the instrument within a time period that is shorter than that required by this Part, compliance with the requirements of that authorising Act is taken to be compliance with this Part. (3) If the authorising Act for a legislative instrument requires publication in the Government Gazette of the instrument within a time period that is longer than that required by this Part— (a) the instrument maker must comply with the time period in this Part; and (b) this Part prevails over the requirements of that authorising Act to the extent of any inconsistency. (4) Subject to section 16A(2), if the authorising Act for a legislative instrument requires publication in the Government Gazette of a notice of the making of the instrument, compliance with the requirements of that authorising Act is not sufficient compliance with section 16A(1). s. 31 -- 42 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 39 Note An authorising Act may require a notice of the making of a legislative instrument to be published in the Government Gazette. Publication of that notice of making under that Act does not relieve the instrument maker from the obligation to publish the legislative instrument in full in the Government Gazette to comply with section 16A(1), unless section 16A(2) applies. 16E Compliance with this Part and requirements of authorising Act—tabling in Parliament (1) If the authorising Act for a legislative instrument requires a copy of the legislative instrument to be laid before each House of the Parliament on or before the 6th sitting day after the legislative instrument has been published in the Government Gazette, or within a shorter time period, compliance with the requirements of that authorising Act is taken to be compliance with section 16B(1). (2) If the authorising Act for a legislative instrument requires a copy of the legislative instrument to be laid before each House of the Parliament within a longer time period than that required by this Part— (a) the instrument maker must comply with the time period in this Part; and (b) this Part prevails over the requirements of that authorising Act to the extent of any inconsistency. __________________". s. 31 -- 43 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 40 32 Part 4 heading amended In the heading to Part 4 of the Principal Act, after "AVAILABILITY" insert "OF STATUTORY RULES". 33 Part 5 heading amended In the heading to Part 5 of the Principal Act, after "DISALLOWANCE" insert "OF STATUTORY RULES". 34 New Part 5A inserted After Part 5 of the Principal Act insert— "PART 5A—SCRUTINY, SUSPENSION AND DISALLOWANCE OF LEGISLATIVE INSTRUMENTS 25A Review of legislative instruments by the Scrutiny Committee (1) The Scrutiny Committee may report to each House of the Parliament if the Scrutiny Committee considers that any legislative instrument laid before Parliament— (a) does not appear to be within the powers conferred by the authorising Act or the statutory rule under which it is made; (b) without clear and express authority being conferred by the authorising Act or the statutory rule under which it is made— (i) has a retrospective effect; or (ii) imposes any tax, fee, fine, imprisonment or other penalty; or (iii) purports to shift the legal burden of proof to a person accused of an offence; or s. 32 -- 44 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 41 (iv) provides for the subdelegation of powers delegated by the authorising Act or the statutory rule under which it is made; (c) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities; (d) has been prepared in contravention of any of the provisions of this Act or of the guidelines with respect to legislative instruments and the contravention is of a substantial or material nature. (2) A report of the Scrutiny Committee under this section may contain any recommendations that the Scrutiny Committee considers appropriate, including a recommendation that a legislative instrument should be— (a) disallowed in whole or in part; or (b) amended as suggested in the report. 25B Suspension of legislative instrument or part of an instrument (1) If the Scrutiny Committee— (a) proposes under section 25A to recommend that a legislative instrument should be— (i) disallowed in whole or in part; or (ii) amended; and (b) is of the opinion that considerations of justice and fairness require that the operation of the legislative instrument or any part of the legislative instrument should be suspended pending the s. 34 -- 45 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 42 consideration by the Parliament of the legislative instrument— the Scrutiny Committee may propose in the report under section 25A that the operation of the legislative instrument or part of the legislative instrument be suspended. (2) If the Scrutiny Committee proposes that the operation of a legislative instrument or part of a legislative instrument be suspended— (a) the Scrutiny Committee must forthwith send a copy of the report to the responsible Minister, the Governor in Council and the instrument maker; and (b) subject to subsection (3), the operation of the legislative instrument or part of a legislative instrument is suspended at the end of the period of 7 days after the sending of the report to the Governor in Council until the end of the period during which the legislative instrument or part of the legislative instrument could be disallowed under section 25C. (3) The Governor in Council, on the recommendation of the responsible Minister made within the period of 7 days referred to in subsection (2), may by Order published in the Government Gazette declare that the operation of the legislative instrument or part of the legislative instrument is not suspended. (4) As from the date on which the Order is published, the provision in a report of the Scrutiny Committee providing for the suspension ceases to have any force or effect. s. 34 -- 46 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 43 (5) While the operation of a legislative instrument or part of the legislative instrument is suspended under this section, the legislative instrument is deemed not to have been made or to have been made without that part. 25C Disallowance (1) This section applies to a legislative instrument if— (a) the authorising Act under which the legislative instrument is made states that the legislative instrument is subject to disallowance by the Parliament or by a House of the Parliament; or (b) in a report under section 25A, the Scrutiny Committee has recommended that the legislative instrument be disallowed in whole or in part; or (c) there was a failure to comply with section 16B(1) and the Scrutiny Committee has reported that failure to each House of the Parliament. (2) A legislative instrument to which this section applies is disallowed in whole or in part if— (a) a notice of a resolution to disallow the legislative instrument is given in a House of the Parliament— (i) on or before the 18th sitting day of that House after the instrument is laid before that House; or (ii) in the case of failure to comply with section 16B(1) in respect of a legislative instrument, on or before the 24th sitting day of that House after— s. 34 -- 47 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 44 (A) the legislative instrument has been published in the Government Gazette under section 16A(1); or (B) if section 16A(2) applies, notice of making and availability has been published in the Government Gazette; and (b) the resolution is passed by that House on or before the 12th sitting day of that House after the giving of the notice of the resolution. (3) Notice of a resolution to disallow a legislative instrument may be expressed to apply to the whole or to any part of the legislative instrument. (4) A resolution to disallow the whole or any part of a legislative instrument has effect according to its tenor. (5) If a House of the Parliament is prorogued or the Legislative Assembly is dissolved— (a) the prorogation or dissolution does not affect the power of the House to pass a resolution disallowing a legislative instrument; and (b) the calculation of sitting days of the House is to be made as if there had been no prorogation or dissolution. 25D Effect of disallowance (1) Subject to subsection (2), if a legislative instrument or a part of a legislative instrument is disallowed by the Parliament or by a House of the Parliament, the disallowance has the same effect as a s. 34 -- 48 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 45 revocation of the legislative instrument or part, as the case requires. (2) If a legislative instrument or a part of a legislative instrument is disallowed by the Parliament or by a House of the Parliament— (a) any statutory rule, legislative instrument or Act or part of a statutory rule, legislative instrument or Act that had been revoked or repealed by the disallowed legislative instrument or part is revived as from the beginning of the day on which the legislative instrument or part was disallowed; and (b) any statutory rule, legislative instrument or Act that had been amended by the disallowed legislative instrument or part takes effect without that amendment as from the beginning of the day on which the legislative instrument or part was disallowed in all respects as if the disallowed legislative instrument or part had not been made. 25E Clerk to publish notice of disallowance If a legislative instrument, or part of a legislative instrument, is disallowed, the Clerk of the Parliaments must cause notice of the disallowance to be published in the Government Gazette. __________________". s. 34 -- 49 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 46 35 Guidelines (1) After section 26(1)(a) of the Principal Act insert— "(ab) the preparation, content, publication and availability of legislative instruments; and". (2) In section 26(1)(b) and (3)(b) of the Principal Act after "rules" insert "and legislative instruments". 36 Advisory role of Scrutiny Committee In section 27(a) of the Principal Act after "4(1)" insert "and 4A(1)". 37 Regulations At the end of section 28 of the Principal Act insert— "(2) Regulations made under this Act— (a) may be of general or limited application; (b) may differ according to differences in time, place or circumstance; (c) may be subject to any conditions specified in the regulations; (d) may exempt specified statutory rules or legislative instruments or any class of statutory rule or legislative instrument from complying with all or any of the regulations or any provision of this Act; (e) may exempt specified persons or classes of person from complying with all or any of the regulations or any provision of this Act in relation to statutory rules, legislative instruments or any class of statutory rule or class of legislative instrument.". s. 35 -- 50 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 47 38 Matter to be included in guidelines (1) In Schedule 1 to the Principal Act— (a) in clause 1, after "rules" insert "or legislative instruments"; (b) in clauses 2, 3, 4, 5 and 6 after "rule" (wherever occurring) insert "or legislative instrument"; (c) in clause 7, after "rule" insert "or legislative instrument"; (d) in clause 8, after "rules" insert "or legislative instruments"; (e) in clause 9, omit "and the provision of statutory rules to the Scrutiny Committee". (2) After clause 9 of Schedule 1 to the Principal Act insert— "10. Guidelines as to the printing and submission of legislative instruments to the Governor in Council or other instrument maker. 11. Guidelines as to the provision of statutory rules and legislative instruments to the Scrutiny Committee. 12. Guidelines as to determining whether an instrument is a legislative instrument. 13. Guidelines relating to certificates under Part 2 and Part 2A.". 39 New section 16F inserted After section 16E of the Principal Act insert— '16F Instrument maker to ensure consolidated version of legislative instrument is available (1) Subject to subsection (3), as soon as practicable after a legislative instrument s. 38 -- 51 of 63 -- Part 3—Amendments Relating to Legislative Instruments Subordinate Legislation Amendment Act 2010 No. 78 of 2010 48 which amends an existing legislative instrument is published in the Government Gazette under section 16A, the instrument maker must ensure that an up to date consolidated version of the legislative instrument being amended by that amending legislative instrument is prepared incorporating those amendments. (2) The instrument maker must cause the up to date consolidated version of the legislative instrument prepared under subsection (1) to be— (a) available for inspection by any person free of charge during office hours at— (i) the principal office of the instrument maker; or (ii) the Department of the responsible Minister in relation to the legislative instrument; and (b) published on the Internet. (3) If the Governor in Council is the instrument maker, the responsible Minister must ensure that this section is complied with. (4) A failure to comply with this section does not affect the operation or effect of the amending legislative instrument published in the Government Gazette under section 16A.'. __________________ s. 39 -- 52 of 63 -- Part 4—General Subordinate Legislation Amendment Act 2010 No. 78 of 2010 49 PART 4—GENERAL 40 New section 36 inserted At the end of Part 8 of the Principal Act insert— "36 Regulations dealing with transitional matters—Subordinate Legislation Amendment Act 2010 (1) The Governor in Council may make regulations containing provisions of a transitional nature, including matters of an application or savings nature, arising as a result of the enactment of the Subordinate Legislation Amendment Act 2010 (including the repeals and amendments made by that Act). (2) Regulations made under this section may— (a) have a retrospective effect to a day on or from the date that the Subordinate Legislation Amendment Act 2010 receives the Royal Assent; and (b) be of limited or general application; and (c) leave any matter or thing to be decided by a specified person or class of person; and (d) provide for the exemption of persons or instruments or a class of persons or instruments from any of the regulations made under this section. (3) Regulations under this section have effect despite anything to the contrary— (a) in any Act (other than this Act, the Charter of Human Rights and Responsibilities Act 2006 or the s. 40 -- 53 of 63 -- Part 4—General Subordinate Legislation Amendment Act 2010 No. 78 of 2010 50 Subordinate Legislation Amendment Act 2010); or (b) in any subordinate instrument.". 41 Repeal of amending Act This Act is repealed on 1 July 2012. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). __________________ s. 41 -- 54 of 63 -- Subordinate Legislation Amendment Act 2010 No. 78 of 2010 51 SCHEDULES SCHEDULE 1 Section 24 CONSEQUENTIAL AMENDMENTS RELATING TO REFERENCES TO REPEALED SUBORDINATE LEGISLATION ACT 1962 1 Accident Compensation Act 1985 1.1 In section 253(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962 which disallowance is deemed disallowance by the Parliament for the purposes of that Act". 2 Agricultural and Veterinary Chemicals (Control of Use) Act 1992 2.1 In section 76(6) omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 2.2 Section 76(7) is repealed. 3 Australian Grands Prix Act 1994 3.1 In section 51(3) omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 3.2 Section 51(4) is repealed. 4 Cancer Act 1958 4.1 In section 62(11) omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 4.2 Section 62(12) is repealed. Sch. 1 -- 55 of 63 -- Subordinate Legislation Amendment Act 2010 No. 78 of 2010 52 5 Catchment and Land Protection Act 1994 5.1 In section 95(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 5.2 Section 95(4) is repealed. 6 Control of Weapons Act 1990 6.1 In section 12(2) omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 6.2 Section 12(3) is repealed. 7 Corporations (Victoria) Act 1990 7.1 In section 80(6), for "section 6A(2) of the Subordinate Legislation Act 1962" substitute "section 24(2) of the Subordinate Legislation Act 1994". 8 Country Fire Authority Act 1958 8.1 In section 110(2AA), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962, which disallowance shall be deemed disallowance by Parliament for the purposes of that Act". 9 Courts (Case Transfer) Act 1991 9.1 For section 34(3) substitute— "(3) Rules may be disallowed in whole or in part by resolution of either House of the Parliament in accordance with the Subordinate Legislation Act 1994.". 10 Docklands Act 1991 10.1 For section 55(6) substitute— "(6) Sections 15, 23, 24 and 25 of the Subordinate Legislation Act 1994 apply to a by-law as if— Sch. 1 -- 56 of 63 -- Subordinate Legislation Amendment Act 2010 No. 78 of 2010 53 (a) the by-law were a statutory rule within the meaning of that Act; and (b) the by-law had been published in the Government Gazette for the purposes of section 15 of that Act on the date on which the by-law was published in the Government Gazette under subsection (1).". 10.2 In section 55(7), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 10.3 Section 55(8) is repealed. 10.4 In section 56(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 10.5 Section 56(4) is repealed. 11 Domestic Animals Act 1994 11.1 In section 100(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 11.2 Section 100(4) is repealed. 12 Emergency Services Superannuation Act 1986 12.1 In section 31(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 13 Environment Protection Act 1970 13.1 In section 71(4), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 13.2 Section 71(5) is repealed. Sch. 1 -- 57 of 63 -- Subordinate Legislation Amendment Act 2010 No. 78 of 2010 54 14 Flora and Fauna Guarantee Act 1988 14.1 In section 69(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 14.2 Section 69(4) is repealed. 15 Health Services Act 1988 15.1 In section 158(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 15.2 Section 158(4) is repealed. 16 House Contracts Guarantee Act 1987 16.1 In section 33(4), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 16.2 Section 33(5) is repealed. 17 Livestock Disease Control Act 1994 17.1 In section 139(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 17.2 Section 139(4) is repealed. 18 Marine Act 1988 18.1 In section 108(5), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 18.2 Section 108(6) is repealed. 18.3 In section 109(5), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 18.4 Section 109(6) is repealed. Sch. 1 -- 58 of 63 -- Subordinate Legislation Amendment Act 2010 No. 78 of 2010 55 19 Meat Industry Act 1993 19.1 In section 78(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962, which disallowance shall be deemed disallowance by the Parliament for the purposes of that Act". 20 Mineral Resources (Sustainable Development) Act 1990 20.1 In section 124(4), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 20.2 Section 124(5) is repealed. 21 Museums Act 1983 21.1 In section 31(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 21.2 Section 31(4) is repealed. 22 Partnership Act 1958 22.1 In section 80(3) omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 22.2 Section 80(4) is repealed. 23 Petroleum (Submerged Lands) Act 1982 23.1 In section 152(5), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 23.2 Section 152(6) is repealed. 24 Private Agents Act 1966 24.1 In section 51(2), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 24.2 Section 51(3) is repealed. Sch. 1 -- 59 of 63 -- Subordinate Legislation Amendment Act 2010 No. 78 of 2010 56 25 Royal Botanic Gardens Act 1991 25.1 In section 51(3) omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962, and that disallowance is deemed to be disallowance by the Parliament for the purposes of that Act". 26 Second-Hand Dealers and Pawnbrokers Act 1989 26.1 In section 31(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 26.2 Section 31(4) is repealed. 27 State Electricity Commission Act 1958 27.1 In section 111(4), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 27.2 Section 111(5) is repealed. 28 State Employees Retirement Benefits Act 1979 28.1 In section 72(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 29 State Owned Enterprises Act 1992 29.1 In section 90(3), for "section 12 of the Subordinate Legislation Act 1962" substitute "section 11 of the Subordinate Legislation Act 1994". 30 State Sport Centres Act 1994 30.1 In section 32(3) omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 30.2 Section 32(4) is repealed. Sch. 1 -- 60 of 63 -- Subordinate Legislation Amendment Act 2010 No. 78 of 2010 57 31 State Superannuation Act 1988 31.1 In section 92(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 31.2 Section 92(4) is repealed. 32 Subdivision Act 1988 32.1 In section 43(4) omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 32.2 Section 43(5) is repealed. 33 Transport Superannuation Act 1988 33.1 In section 52(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 33.2 Section 52(4) is repealed. 34 Treasury Corporation of Victoria Act 1992 34.1 In section 44(2), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 34.2 Section 44(3) is repealed. 35 Victorian Funds Management Corporation Act 1994 35.1 In section 40(2) omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 35.2 Section 40(3) is repealed. 36 Water Act 1989 36.1 In section 324(5), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 36.2 Section 324(6) is repealed. Sch. 1 -- 61 of 63 -- Subordinate Legislation Amendment Act 2010 No. 78 of 2010 58 37 Wildlife Act 1975 37.1 In section 85A(3), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 37.2 Section 85A(4) is repealed. 37.3 In section 86(5) for "5, 6 and 6A of the Subordinate Legislation Act 1962" substitute "15, 23, 24 and 25 of the Subordinate Legislation Act 1994". 37.4 In section 86(6) for "5(1) of the Subordinate Legislation Act 1962" substitute "15(1) of the Subordinate Legislation Act 1994". 37.5 In section 86(7) omit "made in accordance with section 6(2) of the Subordinate Legislation Act 1962". 37.6 Section 86(8) is repealed. 37.7 In section 87(4A), omit "in accordance with the requirements of section 6(2) of the Subordinate Legislation Act 1962". 37.8 Section 87(4B) is repealed. ═══════════════ Sch. 1 -- 62 of 63 -- Subordinate Legislation Amendment Act 2010 No. 78 of 2010 59 ENDNOTES † Minister's second reading speech— Legislative Council: 27 July 2010 Legislative Assembly: 2 September 2010 The long title for the Bill for this Act was "A Bill for an Act to amend the Subordinate Legislation Act 1994 to extend the application of certain provisions of that Act to legislative instruments, to make other amendments to that Act, to consequentially amend other Acts and for other purposes." Endnotes -- 63 of 63 --