Legislation (Fees) Act 2019

Definitions and scope are central. The Act defines "fee" as an amount payable to the Crown or another person or body, but expressly excludes expiation fees, court or tribunal ordered payments to the Crown or agencies, and any other fees declared excluded by regulation (s 3(1)). The Act instructs that references in other Acts to fixing, determining or setting fees are to be read as references to prescribing fees under this Act (s 3(2)). It further treats fee notices as legislative instruments within the meaning of the Legislation Interpretation Act 2021 and extends the meaning of a "function conferred by a provision" in s 38 of that Act to include prescription, substitution or variation of a fee by a fee notice (s 3(3)-(4)).

"Relevant authority" is a key decision node. The Act defines who may make fee notices under the relevant Act: if an Act authorises a specified person or body (other than a Minister) to prescribe a fee (other than by regulation), that person or body is the relevant authority; if an Act authorises both a Minister and a specified person or body, both are the relevant authorities; in other cases the Minister administering the Act is the relevant authority (s 3(1) definition of relevant authority). This definition ties the fee‑making power to the administrative responsibility for the underlying Act.

Fee notices are the operational instrument. Section 4 authorises relevant authorities to prescribe fees by fee notice across four scenarios listed in s 4(1). Section 4(2) says a regulatory maximum set in an Act does not limit fees prescribed by fee notice. Section 5 prescribes form and publication requirements for fee notices, requires compliance with regulations (s 5(1)), and describes the substantive forms fee notices may take, including specific fees, maxima/minima, differential fees, conditional provisions, limited application and savings and transitional provisions (s 5(2)). Effectiveness is governed by s 5(3): fee notices take effect from the Gazette publication day unless the notice specifies a later day, or the relevant Act authorises earlier effect, in which case an earlier specified day may be used.

Interplay with other statutory instruments and regulation is explicit. Fee notices are to be treated as made under the relevant Act (s 5(5)), certain provisions of the Legislative Instruments Act 1978 apply (s 5(4)), the Act does not limit other fee‑regulating provisions in other Acts (s 6(1)), and where duplication occurs between regulation and fee notice the later instrument governs (s 6(2)). Finally, the Governor may make regulations to give more detail or to allow delegation of determinations to the Minister, Chief Executive or other specified persons (s 7(1)-(2)).

Primary decision‑makers affected by this Act are the "relevant authorities" as defined in s 3(1). Those will be Ministers administering particular Acts, or specified persons or bodies authorised by those Acts to prescribe fees (s 3(1)). The definition covers three configurations: a specified person or body other than a Minister; both a Minister and a specified person or body; or, in any other case, the Minister responsible for administration of the Act (s 3(1)). Those authorities gain power to prescribe, vary and revoke fees by fee notice under s 4.

Payors of fees are affected because the Act governs how statutory fees are prescribed and varied. The Act defines "fee" to mean amounts payable to the Crown or another person or body, subject to stated exclusions (s 3(1)). That definition captures persons and entities who, under other Acts, must pay licence charges, application fees, service charges or similar statutory sums where the relevant Act ties those sums to prescription. It excludes expiation fees and Court/Tribunal ordered payments to the Crown (s 3(1)(a)-(b)). Because fee notices may prescribe different fees according to circumstances (s 5(2)(b)), affected payors will include different cohorts targeted by the notice (for example, classes of licences or varying transaction types), as specified in the notice.

Administrative units that implement or collect fees are affected. Agencies, instrumentality units and other bodies charged with taking payments or administering the services where fees are imposed must follow fees as set by fee notice because a fee notice is taken to be made under the relevant Act for all purposes (s 5(5)). Where fee notices interact with existing regulations under the same Act, agencies must apply the later instrument where both regulation and fee notice prescribe the same fee (s 6(2)).

Regulators and legal advisers are affected because the Act cross‑references the Legislation Interpretation Act 2021 and applies parts of the Legislative Instruments Act 1978 to fee notices (s 3(3)-(4); s 5(4)). Those bodies will need to treat fee notices as legislative instruments and comply with any applicable procedural requirements under those Acts as they apply. The Governor and the executive are affected as regulators because regulations under s 7 may delegate determinations to the Minister, Chief Executive or other persons, altering who carries decision‑making responsibility (s 7(2)(d)). Finally, Parliament and those monitoring subordinate legislation are affected by the Act’s procedural treatment of fee notices as legislative instruments, which impacts tracking, publication and possible scrutiny processes tied to such instruments.

Duty to publish and comply with regulations. A fee notice must be made by notice in the Gazette and must comply with any other regulatory requirements set out in regulations (s 5(1)(a)-(b)). Relevant authorities therefore have a duty to ensure fee notices are published in the Gazette and that the notices meet any regulatory form or content requirements. The Governor’s regulation‑making power (s 7(1)) includes providing such requirements and may allow for saving or transitional provisions (s 7(2)(c)).

Power to prescribe, vary and revoke. The relevant authority may prescribe fees by fee notice for the purposes of a relevant Act in the four scenarios listed in s 4(1). The relevant authority may vary a fee by publishing a new fee notice substituting the current one (s 4(3)) and may revoke a fee notice by subsequent fee notice (s 4(4)). When a substituted fee notice is published, the earlier fee notice is taken to be revoked by the later one (s 4(3)).

Respect existing statutory constraints. Any requirement or limitation under the relevant Act relating to fees applies to prescription, variation or revocation under this Act, including requirements that approvals or recommendations of specified persons or bodies be obtained before action may be taken (s 4(5)). That is a duty incumbent on relevant authorities: they must comply with any pre‑existing procedural prerequisites embedded in the underlying Act before making fee notices.

Temporal and retrospective limits. A fee notice has effect according to its terms. It takes effect from its specified day where that day is not earlier than Gazette publication (s 5(3)(a)). It may take effect earlier than Gazette publication only where the relevant Act authorises earlier effect and the fee notice specifies the earlier day (s 5(3)(b)). In any other case the fee notice takes effect from the day of Gazette publication (s 5(3)(c)). The right to prescribe an earlier commencement date is therefore conditional on express authorisation in the relevant Act; otherwise the default is Gazette publication day.

Instrument status and ancillary duties. The Act declares that fee notices are legislative instruments for the purposes of the Legislation Interpretation Act 2021 (s 3(3)). Sections 10 (other than subsection (1)) and 10A of the Legislative Instruments Act 1978 apply to fee notices, with references to a regulation taken to be references to a fee notice (s 5(4)). Relevant authorities therefore have the duty to ensure fee notices comply with any procedural and technical requirements that apply to legislative instruments under those sections as applied.

Continuity and primacy rules. The Act preserves other Acts’ fee‑making powers (s 6(1)). Where a fee is prescribed both by regulation and by fee notice, the later in time governs (s 6(2)). Relevant authorities must therefore monitor the order in time of instruments and apply the instrument that is later.

Regulation‑enabled delegation. Regulations may provide that matters to be determined are to be decided at the discretion of the Minister, Chief Executive or any other specified person or body (s 7(2)(d)). That creates an administrative route for delegating certain decisions about fees, subject to any standards set in regulations.

Rights of payors are implicitly established by the content and effect of fee notices. Payors are entitled to rely on the effective dates and terms of fee notices as published in the Gazette because a fee notice is taken to be made under the relevant Act for all purposes (s 5(5)). The Act’s specification of effective dates (s 5(3)) protects payor expectations by preventing an earlier effective date unless expressly authorised by the relevant Act.

The Act itself does not create new criminal offences, administrative penalties, or enforcement sanctions within its text. Its operative focus is procedural and instrumental: it prescribes how fees are to be made, varied and revoked (ss 4-5), how fee notices are to be treated for interpretive purposes (s 3(3)-(4)), and permits regulations (s 7). The Act leaves enforcement of fee collection, recovery and penalty regimes to the underlying Acts under which particular fees are payable, and to the regulations and subordinate provisions made under those Acts. The text contains no standalone penalty provisions, no specified infringement or fine schedules, and no enforcement agencies or mechanisms established by this Act.

That allocation of enforcement implies two structural features relevant for practitioners and compliance officers. First, compliance and enforcement obligations regarding payment, late payment or non‑payment of a fee will generally be governed by the relevant Act (the Act under which the fee is payable), and not by the Legislation (Fees) Act itself (s 5(5) , a fee notice is for all purposes taken to be made under the relevant Act). Second, regulatory instruments made under s 7 could, in principle, include provisions about enforcement mechanisms or specify delegated decision‑making for enforcement processes (s 7(2)(d)), but only if such provisions are within the scope of the regulation and the enabling provision. The Act authorises the Governor to make regulations necessary or expedient for its purposes (s 7(1)), and the regulations may be of general or limited application, provide saving or transitional provisions, and allow discretion to be conferred to specified decision‑makers (s 7(2)(a)-(d)). Any enforcement design established by regulation would therefore be traceable to the regulations rather than the Act proper.

Practitioners should therefore look to the underlying Act and to any regulations made under both the underlying Act and this Act to identify precise penalties and enforcement rules that apply to particular fees. The Legislation (Fees) Act establishes the procedural vehicle by which fees are prescribed, but not the enforcement content governing the consequences of non‑payment.

The Act is primarily a cross‑instrumental statute that modifies how fees under other Acts may be prescribed while preserving existing statutory regimes. It operates in the following interactions with other laws, as set out in its text.

Subordination and coexistence with existing fee powers. Section 6(1) expressly states that nothing in the Legislation (Fees) Act limits or affects other Acts that authorise the making of regulations to prescribe or otherwise provide for fees. That preserves existing fee‑making regimes. Where both a regulation and a fee notice prescribe the same fee, s 6(2) resolves the conflict by reference to the later in time instrument. This textual rule alters operational priority: the temporal order of instruments, not the form (regulation or fee notice), determines which fee applies.

Interpretive and instrument status effects. The Act treats fee notices as legislative instruments for the purposes of the Legislation Interpretation Act 2021 (s 3(3)). It also directs that section 38 of the Legislation Interpretation Act 2021 be read to include prescription, substitution or variation of a fee by a fee notice within the meaning of a function conferred by a provision (s 3(4)). Further, s 5(4) applies sections 10 (other than subsection (1)) and 10A of the Legislative Instruments Act 1978 to fee notices, with references to “regulation” taken to be references to “fee notice”. Those cross‑references embed fee notices within the existing legal architecture for subordinate legislation and statutory instruments, thereby importing any procedural, publication, tabling, or scrutiny consequences that apply under the relevant instrument Acts, to the extent those provisions apply by virtue of these cross‑references.

Limits on regulatory maxima. If an Act authorises regulations prescribing fees and sets a maximum amount for a fee that regulations may prescribe, s 4(2) says that that maximum will be taken not to apply to fees prescribed by fee notice. That changes the interaction between express statutory ceilings and fees made by fee notice: a ceiling in an Act for regulatory fees does not constrain fees made via fee notice under this Act.

Procedural prerequisites in underlying Acts preserved. Section 4(5) requires that any requirement or limitation under an Act relating to fees will apply to prescription, variation and revocation under this Act. That includes any statutory requirement that a specified person or body approve or recommend a fee before it is made. This preserves procedural checks that exist in other Acts and prevents fee notices from bypassing statutory preconditions.

Effectiveness and retrospective application. Section 5(3) sets rules for commencement dates. A fee notice may have an effect date earlier than Gazette publication only if the relevant Act authorises such an earlier commencement and the fee notice specifies the earlier day. Otherwise the fee notice cannot be made retrospectively to a day earlier than Gazette publication. This interacts with other Acts that might confer broader retrospective power; the Legislation (Fees) Act itself preserves the need for express authorisation in the relevant Act for earlier effect.

Regulation‑level interaction. The Governor’s power to make regulations under s 7(1) permits the creation of additional procedural detail, limits or delegations that interact with this Act and with the statute book generally. Regulations may be of general or limited application, provide transitional provisions, and delegate determinations to Ministers, Chief Executives or other specified persons or bodies (s 7(2)(a)-(d)). Those regulations, once made, will interact with the Act and the underlying Acts to shape operational practice.

In short, the Act integrates fee notices into the subordinate legislation framework, preserves existing statutory controls, gives temporal primacy to the later instrument where duplicates exist, and removes regulatory maxima in some cases while preserving any procedural approval requirements in the underlying Act. Practitioners must therefore read fee notices together with the underlying Act and applicable regulations to determine operative obligations.

The Act’s legislative history as recorded in the provided text shows its enactment, commencement and subsequent amendments. The Legislation (Fees) Act 2019 was assented to on 7 November 2019 and commenced on 19 March 2020, with Schedule 1 commencing on 1 July 2020 (Gazette 19.3.2020 p546). The 2019 Act repealed the Fees Regulation Act 1927. Subsequent amendments listed are:

• Statutes Amendment and Repeal (Budget Measures) Act 2021 (No 5 of 2021), assented 25 February 2021. The legislative history records Part 7 (s 16) commenced 19 March 2020: s 2(3). The entry shows that s 3’s relevant authority definition was amended by 5/2021 s 16 with commencement 19.3.2020.

• Legislation Interpretation Act 2021 (No 36 of 2021), assented 30 September 2021. Schedule 1 clauses 6 and 7 commenced 1 January 2022 (Gazette 23.12.2021 p4619). The entries show that s 3(3) was amended by 36/2021 Sch 1 cl 6(1) and s 3(4) amended by 36/2021 Sch 1 cl 6(2), both commencing 1.1.2022. Section 5(4) was amended by 36/2021 Sch 1 cl 7 on 1.1.2022.

The provisions amended list indicates the following variations with their commencements:

• Section 2 was omitted under the Legislation Revision and Publication Act 2002 with effect 1.1.2022.
• Section 3 was amended, with the precise subclauses altered as per the 2021 amendments; the "relevant authority" subdefinition was amended by the 2021 Budget Measures Act and commenced 19.3.2020.
• Section 3(3) and 3(4) were amended by the Legislation Interpretation Act 2021 with effect 1.1.2022.
• Section 5(4) was amended by the Legislation Interpretation Act 2021 with effect 1.1.2022.
• Schedule 1 was omitted under the Legislation Revision and Publication Act 2002 with effect 1.1.2022.

Historical versions of the Act are listed for 19.3.2020 (electronic only) and 1.7.2020. The legislative history also contains a note that references in the legislation to other legislation, instruments or titles of bodies or offices are not automatically updated and therefore may be obsolete, and directs readers to the Index of South Australian Statutes or the legislation website for further information.

For practitioners tracing the statute’s evolution, the recorded amendments show two waves: an early procedural amendment in 2021 tied to budget measures affecting the definition of relevant authority, and a later set of consequential or interpretive amendments connected to the adoption of the Legislation Interpretation Act 2021, which adjusted how fee notices are treated as legislative instruments and how related provisions operate. The repeal of the earlier Fees Regulation Act 1927 is recorded as the principal Act’s repeal action.

The Act’s text as provided contains no references to judicial decisions, case law or litigation arising under the Legislation (Fees) Act 2019. The legislative history supplied lists enactment and amendment events, but does not record any litigation or court determinations. The source names no cases and provides no citations to judicial interpretation.

Absent any case law listed in the text, any questions about how courts have interpreted key phrases in the Act, such as "fee", "relevant authority", or the application of sections 10 and 10A of the Legislative Instruments Act 1978 to fee notices, cannot be supported from the supplied material. The Act itself imports interpretive machinery by treating fee notices as legislative instruments under the Legislation Interpretation Act 2021 (s 3(3)) and by applying specified provisions of the Legislative Instruments Act 1978 (s 5(4)). Those cross‑references suggest that, if litigation were to arise, courts would likely interpret fee notices within the broader legislative instrument framework, but that is an inference about interpretive context rather than a recorded judicial finding in the materials provided.

Practitioners seeking judicial guidance should therefore check databases and court records beyond the text provided here for any decisions that have considered the Act, its definitions, the temporal operation of fee notices, conflicts with regulation, or procedural requirements imported from the Legislative Instruments Act 1978 and the Legislation Interpretation Act 2021. The Act’s legislative history does not disclose any litigation up to the dates shown for the amendments and commencements recorded.

1. Fee definition exclusions. "Fee" explicitly excludes expiation fees and expiation reminder notice fees, amounts a court or tribunal has ordered to be paid to the Crown or to an agency or instrumentality of the Crown, and any other fee declared excluded by regulation (s 3(1)(a)-(c)). Failure to note these exclusions can produce incorrect assumptions about scope.

2. Regulatory maxima may not bind fee notices. If an Act expressly sets a maximum amount for fees payable under regulations, that maximum does not apply to fees prescribed by fee notice under this Act (s 4(2)). Practitioners should not assume statutory ceilings for regulatory fees will constrain fee notices.

3. Procedural prerequisites still apply. Section 4(5) says requirements or limitations under the relevant Act relating to fees apply to fee notices, including requirements that specified approvals or recommendations be obtained. A fee notice cannot be used to circumvent statutory approval procedures contained in the underlying Act.

4. Effective date traps. By default a fee notice cannot have effect earlier than Gazette publication (s 5(3)(a)-(c)). An earlier effective date is only possible where the relevant Act explicitly authorises a fee notice to have earlier effect and the fee notice specifies that earlier day (s 5(3)(b)). Assuming retrospective effect without that authorisation is risky.

5. Fee notices treated as legislative instruments. The Act takes fee notices to be legislative instruments for the purposes of the Legislation Interpretation Act 2021 (s 3(3)), and it applies certain provisions of the Legislative Instruments Act 1978 (s 5(4)). Practitioners must therefore consider any procedural, publication, or tabling requirements that apply to legislative instruments as they apply to fee notices by virtue of these provisions. Ignoring those procedural obligations may affect validity.

6. Conflict resolution by timing. Where a particular fee is prescribed both by regulation and by fee notice, the later in time of the instruments determines the fee (s 6(2)). That creates the potential for operational confusion if agencies do not track instrument dates carefully.

7. Delegation via regulation. Regulations may provide that a matter is to be determined at the discretion of the Minister, the Chief Executive or other specified person or body (s 7(2)(d)). That allows delegated control over fee details but also introduces potential accountability and recordkeeping obligations for whoever is given the discretion by regulation.

8. Who is "relevant authority" varies. The relevant authority under an Act may be a specified body other than a Minister, both the Minister and a specified body, or the Minister alone (s 3(1)). Confusion about who actually has the authority to publish a fee notice can arise if practitioners do not match the governance structure in the underlying Act to the definitions in s 3(1).

9. Exclusions by regulation. The Act permits regulations to declare other fees excluded from the definition of "fee" (s 3(1)(c)). That means the scope of the Act can be narrowed by regulation, an outcome that may not be obvious from the underlying Act alone.

10. No enforcement detail in the Act. The Act does not set out penalties or enforcement mechanisms (no provision creates an offence or penalty). Enforcement will generally be governed by the underlying Act and any regulations made under either the underlying Act or this Act (ss 5(5), 6(1), 7(1)-(2)). Assuming enforcement mechanics exist in this Act is therefore a mistake.

11. Technical amendment timing. Several amendments to s 3 and s 5 took effect on different dates (see legislative history). Practitioners must check the version of the Act in force at the relevant time because s 3(3), s 3(4) and s 5(4) were amended by the Legislation Interpretation Act 2021 with effect from 1.1.2022, and the relevant authority definition was altered by the 2021 Budget Measures Act with effect 19.3.2020.

12. Publication form requirement. A fee notice must be made by notice in the Gazette (s 5(1)(a)). Publication elsewhere without Gazette notice will not meet the Act’s mandatory publication form requirement.

For relevant authorities intending to prescribe, vary or revoke fees under the Legislation (Fees) Act 2019, the following checklist, grounded in the Act’s text, identifies required steps and compliance touchpoints.

1. Confirm authority. Determine who is the "relevant authority" under s 3(1) for the underlying Act: a specified person or body other than a Minister; both a Minister and a specified person or body where both are authorised; or the Minister administering the Act in any other case. If both a Minister and a specified body are authorised, both are the relevant authorities under the definition.

2. Check underlying Act constraints. Review the underlying Act for any requirements or limitations relating to fees that will apply to fee notices under s 4(5). This includes statutory preconditions such as required approvals, consultations, recommendations or other constraints. Compliance with those procedural prerequisites is mandatory before publishing a fee notice.

3. Assess whether the fee falls within the Act’s definition. Ensure the sum to be prescribed is a "fee" as defined by s 3(1). If it is an expiation fee, a court‑ordered payment to the Crown, or otherwise declared excluded by regulation, the fee notice route under this Act will not apply.

4. Determine whether regulation maxima apply. If the underlying Act sets a maximum amount for fees payable under regulations, note s 4(2) , that maximum will not constrain fees prescribed by fee notice. If the intention is to keep fees within a statutory ceiling, consider whether to use regulation rather than fee notice, or whether the underlying Act permits earlier authorisation.

5. Draft the fee notice to authorised forms. Prepare the fee notice to be made by notice in the Gazette (s 5(1)(a)) and to comply with any regulatory requirements for content or form (s 5(1)(b)). The notice may prescribe specific fees, maxima or minima, differential fees, conditional application, limited application, and saving or transitional provisions (s 5(2)). Ensure content aligns with any applicable regulatory templates or procedural rules.

6. Choose an effective date consistent with s 5(3). By default the fee notice takes effect from the day of Gazette publication (s 5(3)(c)). If an earlier commencement is required, confirm that the relevant Act expressly authorises fee notices to have effect from a specified earlier day; if so, the fee notice must specify that earlier day (s 5(3)(b)). Do not assume retrospective effect is permitted without express authorisation.

7. Apply the Legislative Instruments requirements. Treat the fee notice as a legislative instrument under the Legislation Interpretation Act 2021 (s 3(3)). Ensure compliance with the provisions of the Legislative Instruments Act 1978 that the Act applies to fee notices (specifically, sections 10 other than subsection (1), and 10A, as applied by s 5(4)), reading references to "regulation" as references to "fee notice". Confirm any tabling, disallowance or technical drafting requirements that these provisions entail.

8. Coordinate timing with existing regulations. If the same fee is also prescribed by regulation under the underlying Act, the later in time of the two instruments will govern (s 6(2)). Coordinate drafting and publication so the intended instrument is the operative one.

9. Record and publish approvals and consultative steps. Where the underlying Act requires approvals, recommendations or consultations before a fee can be made (s 4(5)), document and retain those approvals to evidence compliance prior to Gazette publication.

10. Plan for variations and revocations. If a fee will need periodic adjustment, note that the relevant authority may vary a fee by publishing a substituted fee notice (s 4(3)) and may revoke by subsequent fee notice (s 4(4)). Draft standardised procedures for preparing substituted notices and ensure the earlier notice is explicitly revoked by the later instrument in practice.

11. Consider delegation under regulations. If regulations under s 7 provide that some matters are to be determined by the Minister, Chief Executive or another specified person (s 7(2)(d)), ensure that any delegated decision‑making complies with the delegation instrument and internal governance, and that records of discretion exercised are retained.

12. Maintain administrative systems. Operational teams responsible for fee collection must be informed that a fee notice is taken to be made under the relevant Act for all purposes (s 5(5)). Update systems, receipts and information materials to reflect the fee notice terms and effective date.

13. Keep version control and monitor amendments. Because amendments to the Act and related instrument rules have occurred (see legislative history), ensure you are working with the current version. Track the date and Gazette publication of the fee notice and any regulations to determine which instrument prevails (s 6(2)).

14. Verify exclusions by regulation. Check whether any fees have been declared excluded by regulation pursuant to s 3(1)(c) before relying on the fee notice route.

Following these steps will align fee prescription, variation and revocation processes with the requirements and constraints set out in the Legislation (Fees) Act 2019. Where questions of interpretation or interaction arise, consult the underlying Act, any applicable regulations made under this Act, and the Legislation Interpretation Act 2021 provisions that the Act brings into play.