Legislation Regulations 2023

Official version. This is the central concept of the regulations. An “official version” of a law is one that can be tendered in evidence without further proof under the Evidence Act 1906. The regulations prescribe how an electronic or hard copy version must be marked to become official. For electronic versions under regulation 7, the coat of arms on the first page and “Official Version” in every page footer are mandatory. For hard copies under regulation 8, the same applies for laws made or amended after 1 July 2023. Laws made before that date continue to be official if they carry the older indicia (statement of Government printer’s authority, reprint statements, etc.). The significance is that anyone relying on an unofficial copy - for example, a version downloaded from a non-government website without the tick or coat of arms - may be required to prove its accuracy in court.

WA legislation website. The website is the statutory repository for WA laws, operated by the Parliamentary Counsel. Section 10 of the Act requires certain laws to be published there. These regulations flesh out that obligation by specifying subsidiary legislation that must appear both in original form and with amendments incorporated. The website is also the sole medium for official electronic versions; there is no provision for official versions on USB drives, CD-ROMs or third-party platforms.

Subsidiary legislation. This is a defined term under the Act (not reproduced here) but the regulations list specific instruments that fall within it for publication purposes. Not all subsidiary legislation is covered - only the types listed in regulation 3. For instance, regulations under the Police Act and Industrial Relations Act are mandatory, but by-laws under many other Acts (e.g., local government local laws) are not listed and therefore may not need to be published as official versions on the website. Practitioners must check whether a particular instrument appears on the list to know whether the official version is guaranteed to be on the website.

Incorporation of amendments. The regulations require that for certain laws, both the original text and a consolidated text with amendments incorporated must be published. This is important because a user can see the current law without tracking individual amendment instruments. The regulations ensure that the website maintains both the historical record (original as made) and the working text.

Imperial enactments. Regulation 4(a) requires publication of any Imperial Act that remains part of WA law because it was adopted by the 1836, 1844 or 1867 Imperial Acts adopting statutes. These are old British statutes that still have force in WA, potentially including some obscure property or criminal law provisions. Their inclusion on the website makes them accessible to practitioners who might otherwise need to consult British archives.

Proclamations. These are executive instruments that bring Acts into operation, fix repeal dates, or extend the operation of laws. Regulations 4(b) and 5 require or permit their publication, ensuring the public can see when a law came into effect or will cease.

Dormant commission. This is a document appointing the Chief Justice as Administrator in the absence of the Governor. Regulation 5(e) and (f) permit publication of the 1998 Dormant Commission and the 2018 appointment, making the succession arrangements publicly accessible.

The primary duty under these regulations falls on the Parliamentary Counsel (the office charged with publishing laws). The Parliamentary Counsel must ensure that the listed categories of subsidiary legislation are uploaded to the website in PDF format with the correct authentication marks. This is a continuous obligation as new laws are made and amendments enacted. The office must also decide whether to publish the discretionary items under regulation 5 and must maintain both original and consolidated versions.

Government agencies that create subsidiary legislation are indirectly affected because their instruments will only be truly official once published. For example, a regulation made by the Governor under an Act is not fully operational for evidentiary purposes until it appears on the website with the tick and official markings. However, the regulations do not impose a duty on the agency to publish; that duty rests with the Parliamentary Counsel. The agency must ensure its instrument is delivered to the Parliamentary Counsel for publication.

Legal practitioners, judges, and courts are the main users. They rely on the official versions for citation in submissions, judgments, and legal advice. The evidentiary presumptions in the Evidence Act 1906 (sections 53 and 58) mean that an official version is accepted as correct without further proof. A hard copy without the proper indicia may be rejected or require additional evidence. This creates a strong incentive for practitioners to always pull laws from the website and check for the “Official Version” footer.

Journalists, researchers, and the public benefit from free access to authoritative versions. The regulations ensure that there is no ambiguity about which text is current. This is especially important for compliance matters - a business must know the exact text of subordinate legislation to avoid penalties.

Publishers and legal information providers (e.g., AustLII, Westlaw, LexisNexis) are affected because they cannot claim their versions are official. They must rely on the website as the primary source and must clearly distinguish their versions as unofficial. The regulations reinforce the government’s monopoly on official text, which may be controversial for those who argue that third-party re-publication improves accessibility.

Agencies whose subsidiary legislation is not listed in regulation 3 may find that their instruments are not published as official versions. This could create a gap where the text exists but is not easily verifiable. Practitioners dealing with those instruments may need to rely on Gazette notices or other means, which may be less reliable.

The key duty is on the Parliamentary Counsel to publish the specified laws and material on the WA legislation website. Section 10(1) of the Act imposes the primary obligation, and these regulations define its scope. For subsidiary legislation, the duty is to publish both the “as originally made” version and the “with amendments incorporated” version (regulation 3). This is important because a user can see the current law immediately without manually applying amendment instruments. The duty also extends to publishing Imperial enactments, proclamations, and Letters Patent (regulation 4).

There is a right of the public to access official versions of these laws free of charge on the website. The regulations do not impose a fee, and the creative commons licence on the compiled version suggests the government intends free access. However, the right is limited to the material mandated to be published; the Parliamentary Counsel has discretion over some material (regulation 5) and may choose not to publish certain proclamations or commissions. A user cannot compel publication of discretionary items.

A user who obtains a version that meets the prescribed indications (coat of arms, footer, tick) has the right to rely on it as evidence without further proof. Under the Evidence Act 1906 s 53 and s 58, a document purporting to be an official copy is taken to be correct unless the contrary is shown. This is a practical right that saves time and cost in litigation.

There is a duty on the Parliamentary Counsel to maintain the integrity of the official versions. The regulations specify the format (PDF) and the authentication marks. If the Parliamentary Counsel were to publish a version without the required coat of arms or footer, it would not be an official version under the Act. This creates an implied duty to ensure the markings are correct. The compilation table at the end of the regulations shows that amendments are incorporated, and the note states that this is a compilation of the regulations as amended, indicating the office’s practice.

No private rights are created. These regulations do not give an individual a cause of action if the website is down or if a version is missing. The remedies, if any, would be through the Act’s oversight mechanisms or through ministerial direction.

The Legislation Regulations 2023 do not themselves create any criminal offences or civil penalties. Enforcement is indirect and arises from the consequences of using an unofficial version. The primary risk is that a person who relies on a copy lacking the prescribed indicia may find it rejected in legal proceedings, forcing them to prove the text’s accuracy by other evidence (e.g., Gazette extract, affidavit from the Parliamentary Counsel). This adds cost and delay.

If the Parliamentary Counsel fails to publish required material, there is no penalty specified in these regulations. The parent Act (Legislation Act 2021) may provide for mechanisms such as a duty enforceable by declaration or complaint to the minister, but that is outside the text here. The regulations assume that the Parliamentary Counsel will comply; there is no appeal or enforcement mechanism within the delegated legislation.

There is a potential liability for misrepresentation if the Parliamentary Counsel publishes a version that is not correct (e.g., missing an amendment). However, the regulations do not address this. The government’s standard disclaimers on the website (mentioned in the copyright notice) may limit liability. The creative commons licence at the end of the compiled regulations suggests the material is provided “as is” but does not exclude statutory guarantees.

For users, the penalty for using an unofficial version is not a penalty at all - it is merely the loss of the evidentiary shortcut. A court could still accept an unofficial copy if it is proved to be correct by other means. However, in practice, judges and tribunals may be reluctant to accept a version without the tick or coat of arms. This creates a strong practical incentive to use the official versions.

No sanctions are imposed on agencies that fail to submit subsidiary legislation for publication. The duty to publish is on the Parliamentary Counsel, not the maker. If a regulation made by the Governor is not published, it may still be valid law (depending on the Act), but it would be difficult to enforce because proving its content would be cumbersome.

The regulations sit under the Legislation Act 2021 and give effect to its sections 10, 15 and 16. Section 10(1)(c), (d) and (e) require the Parliamentary Counsel to publish specified laws; these regulations designate what those laws are. Section 15 requires the format and indications for electronic official versions; regulations 6 and 7 provide that detail. Section 16 does the same for hard copy versions; regulation 8 provides the detail.

The regulations interact significantly with the Evidence Act 1906. Section 53 of that Act deals with proof of Acts, and section 58(1)(a) deals with proof of subsidiary legislation purporting to be contained in a copy of the Gazette. The new regulations do not repeal those provisions but supplement them. For laws made or amended after 1 July 2023, the official version is the one with the coat of arms and “Official Version” footer, not a Gazette extract. However, for pre-2023 laws, the old Gazette and reprint methods remain valid. This creates a dual regime: practitioners must be aware of the date of the law to know which standards apply.

The Reprints Act 1984 and the Reprinting of Regulations Act 1954 are the previous regimes for authorised reprints. Regulation 8(1)(d)(i) and 8(2)(c)(i) explicitly preserve the validity of reprints made under those Acts for amendments made before 1 July 2023. This means an Act reprinted under the Reprints Act in 2020 with the statement “Reprinted under the Reprints Act 1984” remains an official version. However, the new regulations also provide that the Parliamentary Counsel may publish official versions with the new indicia even for pre-2023 laws, presumably for the sake of consistency. Practitioners need to check the date of the amendment to determine which indicia are required.

The regulations also reference specific Acts whose subsidiary legislation must be published: the Police Act 1892, Industrial Relations Act 1979, Liquor Control Act 1988, State Administrative Tribunal Act 2004, Workers Compensation and Injury Management Act 2023, Energy Operators (Powers) Act 1979, Government Railways Act 1904, Parks and Reserves Act 1895, Queen Elizabeth II Medical Centre Act 1966, Water Agencies (Powers) Act 1984, Electricity Corporations Act 2005, Health Services Act 2016, Local Government Act 1995, and Planning and Development Act 2005. Each of those Acts may have their own requirements for publication in the Gazette or elsewhere. The regulations do not override those requirements but add the additional requirement of publication on the website. Potentially there could be a conflict if an Act requires publication in the Gazette but the Parliamentary Counsel only publishes on the website. However, the regulations only set minimums; they do not prohibit other forms of publication.

The Imperial Acts Adopting Act 1836 and its successors are also referenced. Those Acts determine which Imperial enactments are part of WA law. Regulation 4(a) requires those enactments to be published on the website, presumably making them more accessible. This does not alter their force but may affect their availability.

The Legislation Regulations 2023 were originally made on 2 June 2023 and published as SL 2023/57. They commenced on 1 July 2023 as per regulation 2. Since then, two amending instruments have been made.

SL 2024/132, the Attorney General Regulations Amendment (Workers Compensation) Regulations 2024, Part 4, amended regulation 3 by substituting a reference to the Workers Compensation and Injury Management Act 2023 for the previous reference (which would have been to the earlier workers compensation Act). This amendment took effect on 1 July 2024.

SL 2024/136, the Legislation Amendment Regulations 2024, made several changes. Regulation 2 provides that the regulation itself came into operation on 26 June 2024 for regulations 1 and 2, and on 27 June 2024 for the substantive amendments. This amending regulation deleted the former regulation 3(e)(iii) (which presumably referred to a now-repealed provision) and added a new item (iv) for the Workers Compensation and Injury Management Act 2023 sections 381 or 382. It also amended regulation 5 by updating references. The compilation table confirms these amendments have been incorporated into the official version as at the date of the copyright notice (2024).

Importantly, the regulations are still relatively new, with only two years of operation. There have been no other recorded amendments. The fact that the Workers Compensation reference was updated within a year of the original instrument shows that the drafters are keeping the list current as Acts are repealed and replaced. The deletion of regulation 3(e)(iii) suggests that a previous head of power to make rules under some Act has been repealed or ceased, and the list is being pruned. Future amendments will likely occur as new Acts create subsidiary legislation that the government considers important enough to mandate publication.

The regulations themselves do not have a sunset clause or review date. They will continue indefinitely unless repealed or amended by subsequent regulations.

There are no cases reported (or identifiable from the source) that have considered the Legislation Regulations 2023. This is unsurprising given their recent commencement and their primarily administrative nature. The regulations are unlikely to be litigated directly because they do not create rights or duties for private parties. Any litigation would likely arise in the context of a dispute about the admissibility of a version of a law. For example, a party might challenge whether a downloaded PDF is an official version because it lacks the tick symbol or coat of arms. The court would then need to interpret regulation 6(3) or 7(2). No such reported cases exist yet.

Another potential area of litigation could be a challenge to the validity of subsidiary legislation that was not published on the website in accordance with these regulations. The Act may have a provision (not reproduced here) about whether failure to publish affects validity. If a person is prosecuted for breaching an unpublished regulation, they might argue that the regulation is not enforceable because it was not properly published. The regulations themselves do not address this; the parent Act would be the focus. The regulations would be relevant to show what constitutes proper publication.

The dormant commission provisions in regulation 5(e) and (f) could become relevant in a constitutional challenge to the appointment of an Administrator, but that would be unusual. More likely, litigation would focus on the evidentiary weight of a version: for example, a landlord relying on a hard copy of the Residential Tenancies Act from a commercial publisher printed in 2019 with the old reprint statement, versus a version from the website with the new coat of arms. The regulations give both equal validity if they meet the respective indicia for their time period.

Given the lack of litigation, one must assume the regulations are working as intended. The absence of reported disputes is itself a sign that the authentication system is clear enough to avoid confusion, or that no party has yet found it worthwhile to challenge. It is possible that future litigation will arise over the definition of “amendment made on or after 1 July 2023” for the purposes of hard copy indicia. For example, if an Act is reprinted after 1 July 2023 but the only amendments it contains are from before that date, which indicia apply? Regulation 8(1)(c) applies to “an Act with amendments made on or after 1 July 2023 incorporated”. If the amendments are all pre-2023 but the reprint is new, then the old indicia under (d) would apply. This could cause confusion.

Not all subsidiary legislation is covered. Regulation 3 lists exhaustively the types of subsidiary legislation that must be published. Many instruments - for example, local laws made by local governments, rules of professional bodies, or orders under the Mental Health Act 2014 - are not listed. Their official versions may still be published in the Gazette or elsewhere. Users cannot assume that every subordinate instrument they need will be on the website with an official tag.

Pre-2023 incorporated amendments are tricky. Regulation 8(1)(d) provides five alternative ways for a hard copy Act with pre-2023 amendments to be official, depending on which reprint scheme was used. A practitioner looking at a hard copy must determine whether it was reprinted under the Reprints Act, the Amendments Incorporation Act, or the older system. If it has only a list of amending laws and a government printer’s statement, that is valid. But if it has nothing, it may not be official.

The tick symbol is only on the PDF icon link, not inside the document. Regulation 6(3) says the website indicates an official version by a tick symbol on the PDF icon link for accessing or downloading. Once you open the PDF, the tick does not appear inside. So if you save the PDF and send it to someone, they may not see the tick. The only internal indicators are the coat of arms and footer (regulation 7). But those are only for Acts and subsidiary legislation, not necessarily for other material like proclamations. For a proclamation published under discretion, the only indicator may be the tick on the link. If you downloaded it and the link is gone, you cannot prove it was official.

Hard copies printed from the website may not have the official indicia. The PDF from the website will have the coat of arms and footer if it is an Act or subsidiary legislation. But if you print a page that is not the first page, you lose the coat of arms. The footer must appear on every page, so that is okay. But if you print only extracts, you may not be able to show the full document. The safest is to keep the original electronic file.

Imperial enactments are still in force. Many practitioners may be unaware that obscure British statutes from the 1800s are part of WA law. They are now published on the website (regulation 4(a)). Not knowing about them can be a trap - for example, the Statute of Marlborough (1267) still restricts certain land rights in some common law jurisdictions. Practitioners should check the Imperial enactments list.

Transitional rules for pre-2023 reprints remain. An Act reprinted in 2022 under the Reprints Act with a statement that it is printed by authority of the Government remains official. But a reprint done after 1 July 2023 that does not incorporate any post-2023 amendments should still use the old indicia (d). If the Parliamentary Counsel mistakenly applies the new coat of arms to a pre-2023-only text, is that still official? The regulations do not address error - likely it would still be official because it carries the prescribed indicia for the wrong reason, but a court might need to interpret.

The regulations are silent on the effect of website downtime. There is no obligation for the website to be available 24/7. If a person needs to prove a law that exists only on the website and the website is down, they cannot access it. There is no fallback to Gazette copies for post-2023 laws. This creates a single point of failure.

Amendments to these regulations themselves have retroactive or immediate effect. The 2024 amendment deleted a reference without a saving provision. If someone had relied on that category being published, they may be caught out. The compilation shows the current text, but the deleted item may have historical relevance.

The regulations place the primary compliance obligation on the Parliamentary Counsel. The office must maintain a system that ensures all mandated laws are uploaded in PDF format. The system must generate the correct tick symbol on the download link and embed the coat of arms and “Official Version” footer in every page of Acts and subsidiary legislation. This likely requires automated workflows from legislative drafting to publication. The office must also maintain both the original and consolidated versions and keep them updated when amendments occur.

For government agencies that make subsidiary legislation, compliance is two-step. First, ensure that the instrument falls within the prescribed categories. If it does, the agency must transmit it to the Parliamentary Counsel for publication after making. If it does not fall within the categories, the agency should still publish it in the Gazette or otherwise, because the regulations do not remove existing publication requirements. The agency should not assume that the Parliamentary Counsel will automatically publish; the duty is to publish “for the purposes of section 10(1)(c) and (d)”, but the agency should confirm with the counsel.

For practitioners and users, the key compliance action is to always obtain the law from the WA legislation website and check for the authentication marks. For electronic versions, look for the tick symbol on the download link. After downloading, open the PDF and check that the coat of arms appears on the first page and “Official Version” appears in the footer of every page. If either is missing, the version may not be official, and you should seek the version again or contact the Parliamentary Counsel. For hard copies printed from the website, ensure you print the entire document including all footers. Do not photocopy only the text pages.

For courts and tribunals, when a party tenders a law, the court should verify the indicia. If the law is made after 1 July 2023 and lacks the coat of arms and footer, the court may require additional proof under the Evidence Act. The party tendering it should be prepared to explain why it is still authoritative (e.g., if it is a pre-2023 reprint). Judicial officers should be aware of the transitional provisions to avoid wrongly rejecting a valid pre-2023 reprint that uses the old style.

Anyone relying on a discretionary publication (regulation 5) should note that the tick symbol is the only official indicator. Save the PDF immediately after download, and consider taking a screenshot of the icon with the tick as evidence. Because the tick does not appear inside the document, there is a risk that the file later cannot be clearly linked to the website.

Finally, all users should check the compilation table at the end of these regulations to see whether any amendments have been made to the regulations themselves. The compilation table in the official version shows amendment history. If you are using a version that does not include updates, you might be relying on an outdated list of mandated publications. Always access the current version from the website.