Legislative Instruments Act 1978

"Regulation" is defined in the Act at s 4 as any regulation, rule or by‑law made under an Act. That definition is the starting point for the instrument classes the Act governs. The Act distinguishes between regulations and other legislative instruments, and it expressly permits extension by proclamation so that provisions which normally apply only to regulations may be made to apply to other defined kinds of legislative instruments (s 9(1)). The Act therefore creates a two‑tier architecture: the core regulatory framework (Parts 2 and 3A) and a catch‑all set of rules applicable to other instruments by proclamation or express inclusion (s 9(1) and Part 3B, s 16D).

Making and authorisation. Where an enabling Act passed after 16 December 1915 provides for the making of regulations but does not name the maker, the Governor is the default maker (s 10(1)). The Act preserves the ability of other authorities to make regulations where the enabling Act so provides, but it limits the effect of such instruments until any required confirmation by the Governor or other authority has occurred (s 10(7)). This establishes an allocation of legislative power that is sensitive to express delegation in parent Acts.

Parliamentary supervision and disallowance. The Act requires that, except where another Act expressly provides otherwise, every regulation must be laid before each House of Parliament within six sitting days after it has been made (s 10(3)). The Legislative Review Committee receives every laid regulation by force of s 10A(1) and must inquire into and consider each regulation (s 10A(2)). Parliament retains a procedural power to disallow regulations referred to it or reported upon by the Committee. A regulation may be disallowed by resolution of either House and will cease to have effect if properly disallowed under the notice and timing rules (ss 10(5a)-(5b)). The Act sets timing rules for when such motions may be moved and requires publication in the Gazette of a notice of disallowance (s 10(6)).

Commencement and timing. The Act sets a default commencement rule for regulations that must be laid: four months after the day on which they are made unless the regulation specifies a later date (s 10AA(1)). The Act allows earlier commencement only if the responsible Minister certifies it is necessary or appropriate and the earlier commencement is authorised by the enabling Act (s 10AA(2)). For instruments not required to be laid, the default is immediate operation upon making unless a later date is specified (s 10AA(3)). The Ministerial certificate is a procedural instrument that, once issued, cannot be questioned in legal proceedings (s 10AA(5)) and a document that appears to be such a certificate is prima facie accepted as such in proceedings (s 10AA(4)).

Expiry and postponement. Part 3A sets a broad expiry regime for most regulations (ss 16A-16C). It lists specific exclusions (s 16A) and provides for staggered expiry dates depending on the date the regulation was made (s 16B). Where a regulation falls to expire, regulations may postpone that expiry for periods not exceeding two years at a time and not exceeding four years in aggregate (s 16C(1)). A disallowance of a postponing regulation has specified effects on the original regulation (s 16C(2)).

General legal mechanics. Part 4 supplies presumptions and scope rules: a presumption that all conditions and preliminary steps required for making a legislative instrument have been satisfied, absent contrary evidence (s 16E(1)); power to exercise delegated regulation‑making power by prohibition (s 16E(2)); and a broad power to apply, adopt or incorporate other statutory or non‑statutory instruments (s 16E(3)). The Act handles the effect of disallowance on repeals (s 16F) and fixes the time a disallowance takes effect at the end of the day it is disallowed (s 16G).

Publication and numbering. Regulations must be published forthwith after making in the Gazette or under the Legislation Revision and Publication Act 2002 (s 11). The Governor may appoint a day by proclamation for consecutive numbering of regulations (s 13).

Procedural limits and immunities. The Act contains procedural limits and immunities that affect legal challenges, notably the non‑justiciability of a Ministerial certificate authorising early commencement (s 10AA(5)). The absence of documentary proof is addressed by the evidentiary presumption in s 10AA(4) for certificates.

These main concepts frame allocation of decision rights, administrative timelines, parliamentary oversight and the evidential posture of instruments made under Acts in South Australia. The Act therefore functions more as process architecture than as a catalogue of policy‑substantive rules.

State actors. The Act primarily affects executive and parliamentary actors. The Governor is the default maker of regulations where the enabling Act is silent (s 10(1)) and the Governor also has power to make regulations under this Act for its purposes (s 17) and to appoint a day for numbering by proclamation (s 13(1)). Responsible Ministers feature in the Act through the power to certify earlier commencement of a regulation and the consequential duty to provide reasons to the Legislative Review Committee when such a certificate is issued (s 10AA(2) and s 10A(1a)). Authorities other than the Governor who make regulations under their enabling Acts are also affected, both because they may be required to have their instruments confirmed by the Governor or another authority before force (s 10(7)) and because instruments made by other authorities are excluded from the Part 3A expiry regime (s 16A(f)).

Parliament. Both Houses of Parliament are affected by the statutory laying and disallowance processes. Every regulation that must be laid is to be presented to each House within six sitting days (s 10(3)). Each House holds the procedural right to disallow a regulation, subject to notice and timing rules (s 10(5a)-(5b)). The Legislative Review Committee of Parliament is required to receive and consider every regulation that must be laid (s 10A(1)-(2)) and may report to both Houses if it forms the opinion that a regulation ought to be disallowed (s 10A(4)).

Administrators and regulated parties. Agencies and officials who draft, make or administer regulations, rules or by‑laws must comply with the procedural and publication requirements in the Act (ss 10(3), 11). Regulated persons and businesses are indirectly affected because the Act prescribes when a regulation comes into effect (s 10AA) and how long it will remain in force (Part 3A, ss 16A-16C). The four month default delay to commencement for laid regulations (s 10AA(1)) will change the timing of regulatory obligations and compliance costs for private parties. Where a Minister certifies an earlier commencement, regulated persons may be required to comply earlier and have reduced time to adjust because the certificate cannot be challenged in legal proceedings (s 10AA(5)).

Publishers and legal information services. The obligation to publish regulations in the Gazette or under the Legislation Revision and Publication Act 2002 (s 11) places a procedural relationship on the agency responsible for official publication. The numbering scheme (s 13) affects record keeping and citation practice for lawyers, courts and information services.

Excluded and special classes. Part 3A lists classes of instruments excluded from the expiry regime (s 16A), including by‑laws under the Local Government Act 1934 (s 16A(ab)), regulations amending an Act (s 16A(c)), certain superannuation regulations (s 16A(eb), (ec)) and regulations made by persons other than the Governor (s 16A(f)). Those classes have different lifecycle expectations under the Act.

Who pays and who decides. Procedurally, the State pays for making and publishing instruments, for supporting the Legislative Review Committee and for administrative processes. Regulated parties pay compliance costs, adjustment costs and monitoring costs tied to commencement and expiry timing. Decision rights are divided among the Governor (maker/default), the responsible Minister (certificate for early commencement and reasons), the Legislative Review Committee (inquiry and report), and each House of Parliament (disallowance).

Other jurisdictions and incorporated instruments. Agencies and advisers drafting instruments must account for s 16E(3), which allows instruments to apply, adopt or incorporate provisions of Acts or legislative instruments from other jurisdictions. That creates cross‑jurisdictional dependencies for compliance and legal interpretation.

In summary, the Act principally governs the procedural relationships among the executive, Parliament and regulated entities. It imposes administrative actions and timelines on makers of instruments, establishes parliamentary oversight routes for repeal, and shapes the timing of regulatory obligations that fall on private persons and businesses.

Duties imposed on makers and Ministers

• Maker defaults. Where an Act passed after 16 December 1915 allows but does not specify who may make regulations, the Governor must make them (s 10(1)). If the enabling Act specifies another authority, that authority may make the regulations but any required confirmation must occur for the regulation to have force (s 10(7)). This is a duty of allocation under a default rule.

• Laying obligations. Except where another Act expressly provides otherwise, every regulation must be laid before each House of Parliament within six sitting days after it has been made (s 10(3)). That lays a clear administrative timeline on the agency making the regulation.

• Publication. Every regulation shall be published forthwith after it is made in the Gazette or under the Legislation Revision and Publication Act 2002 (s 11). This is a duty on the maker and on the official publisher.

• Numbering. The Governor may, by proclamation, appoint a day after which regulations are to be numbered consecutively beginning with "1" each year, and regulations made on and after that day shall be numbered as nearly as may be in order of making (s 13(1)-(2)). A duty to number arises once the Governor has made the proclamation.

• Ministerial certificate and reporting. If a Minister issues a certificate under s 10AA(2) to permit earlier commencement of a regulation, the Minister must cause a report setting out the reasons for the certificate to be given to the Legislative Review Committee as soon as practicable after the making of the regulation (s 10A(1a)). The certificate itself must state that, in the Minister’s opinion, earlier commencement is necessary or appropriate (s 10AA(2)).

• Expiry postponement. The regulations may postpone expiry of another regulation under Part 3A for periods not exceeding two years at a time and not exceeding four years in aggregate (s 16C(1)). A duty to keep track of and limit postponement periods falls on the maker.

Rights and powers retained by Parliament and the Committee

• Disallowance. Subject to procedure, each House of Parliament may disallow a regulation that has been laid or that is the subject of a Legislative Review Committee report; a regulation disallowed by resolution ceases to have effect (s 10(5a)). Procedural timing requirements limit when such a motion may be brought: 14 sitting days after laying in the case of ordinary laying, or six sitting days after a Committee report in the case of a report‑triggered motion (s 10(5b)(a)-(b)). The right to disallow is a substantive parliamentary control.

• Committee inquiry and report. The Legislative Review Committee must inquire into and consider all regulations referred to it (s 10A(2)). If it forms the opinion that a regulation ought to be disallowed it must report that opinion and grounds to both Houses before the end of the disallowance motion period, and may report the opinion to the maker when Parliament is not in session (s 10A(4)).

Procedural presumptions and evidentiary rules

• Presumption of compliance. All conditions and preliminary steps required for making a legislative instrument must be presumed to have been satisfied absent evidence to the contrary (s 16E(1)). This places an initial evidentiary burden on any challenger to a regulation.

• Certificates and non‑justiciability. A document appearing to be the Minister’s certificate under s 10AA(2) will, in the absence of proof to the contrary, be accepted as such in any legal proceedings (s 10AA(4)). A certificate cannot be called in question in any legal proceedings (s 10AA(5)). This grants the executive a procedural shield for earlier commencements authorised by Ministers.

Consequential effects and rights on repeal/disallowance

• Revival on disallowance. If a legislative instrument that repealed another instrument is itself disallowed, the instrument or part sought to be repealed revives (s 16F). That creates a legal sequitur that protects the continuity of previously repealed rules where the subsequent repealing instrument falls.

• Continuation to end of day. If a legislative instrument is disallowed, it continues to have effect until the end of the day on which it is disallowed (s 16G). This fixes the precise extinguishment moment for legal effect and obligations.

Other operational rights

• Regulation‑making for the Act. The Governor may make regulations necessary or expedient for the purposes of this Act (s 17). That is an enabling right to flesh out process details.

• Power to prohibit. If an Act authorises regulation of a matter, that power may be exercised by prohibiting the matter or any aspect of it (s 16E(2)). This is an express statement of scope for regulatory instruments, broadening the possible form of delegated rules.

These duties and rights allocate administrative obligations to makers and Ministers, procedural and review powers to Parliament and its Committee, and evidential and continuity protections that affect legal challenges and continuity of regulation. Practitioners must map these statutory duties and rights against the enabling Act for any particular instrument to ensure compliance with both the parent Act and the procedural architecture in this statute.

The Act does not create criminal offences or monetary penalties for non‑compliance. Its enforcement relies on procedural remedies and the legal effect of instruments rather than sanctioning individual actors.

Parliamentary disallowance and effect

• Disallowance is the principal enforcement mechanism against a regulation that Parliament considers objectionable. Under s 10(5a) a regulation that has been laid or referred may be disallowed by resolution of either House; on successful disallowance the regulation ceases to have effect. The Act requires notice of a disallowance resolution to be published in the Gazette (s 10(6)). The timing windows for bringing motions mean that procedural non‑compliance with laying, or a Legislative Review Committee report, may trigger a disallowance motion subject to the time limits in s 10(5b).

• Time of effect. When a regulation is disallowed it continues in force until the end of the day on which it is disallowed (s 16G). That rule fixes the extinguishment point for legal obligations and potential enforcement dependent on the regulation.

Procedural and evidentiary constraints that reduce legal challenges

• Presumption and non‑justiciability. The Act builds safeguards that reduce risk of successful procedural attacks in litigation. Section 16E(1) requires courts to presume that all conditions and preliminary steps for making a legislative instrument have been satisfied unless evidence to the contrary is produced. The Ministerial certificate that permits earlier commencement (s 10AA(2)) is protected by s 10AA(5), which states it cannot be called in question in legal proceedings, and s 10AA(4) which creates a prima facie acceptance rule for documents appearing to be such certificates. These provisions limit the avenues available to litigants seeking to quash or restrain regulatory operation on procedural grounds.

Administrative effects on legal status

• Laying failure does not invalidate operation. A failure to have a regulation laid before both Houses in accordance with s 10(3) does not affect the operation or effect of that regulation (s 10(4)). The Act therefore separates procedural compliance for parliamentary oversight from the substantive validity of the instrument. The Legislative Review Committee may nonetheless report the failure (s 10(5)), and the Parliament retains its disallowance remedy, but administrative lapses do not themselves nullify the instrument.

Revival and continuity consequences

• Revival by disallowance. Section 16F provides that if a legislative instrument that repealed another instrument is disallowed, the instrument or part sought to be repealed revives. That provision has the practical enforcement effect of reinstating previously applicable rules where replacement instruments are invalidated by parliamentary action. It shifts continuity of regulatory obligations back onto the repealed instrument rather than creating a legal vacuum.

No express penalties

• Absence of penal sanctions. The statute contains no enforcement provisions that impose fines, imprisonment or administrative penalties on officials for failing to comply with its procedural duties. Compliance consequences are therefore political and legal rather than penal , Parliament can disallow instruments, and courts will interpret statutory presumptions and non‑justiciability clauses as shaping likely litigation outcomes.

Operational enforcement by publication and procedural notice

• Publication requirement. Section 11 requires publication of regulations in the Gazette or under the Legislation Revision and Publication Act 2002, which provides public notice and facilitates administrative enforcement by agencies and courts. Publication is the channel through which the regulated community can discover rules and through which administrative or private enforcement regimes rely on knowledge of instruments.

In short, enforcement under the Act is achieved through parliamentary oversight, publication and continuity mechanics rather than through criminal or civil penalties imposed on officers for breaches of the Act’s procedural obligations. The Act gives Parliament the ultimate enforcement tool in disallowance and builds procedural protections into the executive’s decision mechanics that affect litigation risk.

Interplay with enabling Acts

• Default maker versus express delegation. Section 10(1) supplies a default rule that the Governor makes regulations when an Act passed after 16 December 1915 permits regulations but does not name the maker. If an enabling Act names another authority, that authority may make regulations but any statutory confirmation required before the instrument has force must occur (s 10(7)). Practitioners must therefore read this Act together with the enabling Act to determine the proper maker and any confirmation or specific commencement rules required by the parent statute.

• Commencement constraints subject to other Acts. Section 10AA(1) states that, subject to this and any other Act, the default four month commencement applies. Section 10AA(2)(b) explicitly prevents earlier commencement unless the enabling Act authorises earlier operation. Section 16D(1)(b) repeats that principle for legislative instruments other than regulations, stating that such instruments may not come into operation earlier than making, approval or adoption unless earlier operation is authorised by the enabling Act. These cross‑references mean the parent Act can trump the default commencement rules set in this statute. Users must check the enabling Act for any express commencement provision that varies these defaults.

• Confirmation by Governor or other authority. Where an Act provides that regulations shall be made by an authority other than the Governor and that those regulations must be confirmed by the Governor or some other authority, s 10(7) says those regulations shall not take effect unless confirmed as required. That creates a direct interaction between the enabling Act’s confirmation provisions and this Act’s rules on legal force.

Legislation Revision and Publication Act 2002

• Publication channel. Section 11 requires publication in the Gazette or under the Legislation Revision and Publication Act 2002. The amendment history in the Act’s schedule notes that s 11 was amended by the Legislation Revision and Publication Act 2002 (2002, No 32) and subsequently by the Legislation Interpretation Act 2021 (s 11 amended by 36/2021 Sch 1 cl 18, commencement 1.1.2022). This shows that publication procedures for instruments under this Act are integrated into the state’s central publication machinery.

Local and uniform legislation regimes

• Exclusions for certain instruments. Part 3A excludes certain classes of regulations from the expiry regime, including by‑laws made under the Local Government Act 1934 (s 16A(ab)) and regulations made pursuant to agreements for uniform legislation between the State and other jurisdictions and prescribed for the section (s 16A(d)). Those exclusions reflect an interaction with other legislative schemes that either preserve local government autonomy or accommodate uniform national regimes.

Incorporation and cross‑jurisdictional adoption

• Broad incorporation power. Section 16E(3) allows instruments to apply, adopt or incorporate provisions of Acts, legislative instruments or other documents from this or any other jurisdiction, as in force at a time or from time to time. That creates a direct legal mechanism by which South Australian instruments can import rules from other jurisdictions. Users must therefore consider interjurisdictional variation and ensure the incorporated material is current, or that the instrument specifies the version to be imported.

Acts Interpretation Act link

• Section 7 amendment. The Act amends references in earlier Acts: where an earlier Act referred to s 38 of the Acts Interpretation Act 1915, that reference is to be read as a reference to s 10 of this Act from commencement (s 7(3)). The legislative history records other amendment linkages, including later consolidations in the Legislation Interpretation Act 2021.

Revival mechanics affecting statutory continuity

• Revival on disallowance. Section 16F requires revival of a previously repealed instrument if the repealing instrument itself is disallowed. This interacts directly with the statute under which the repeals and subsequent instruments were made and with any saving or transitional provisions that might otherwise have governed transitional continuity.

Timing and parliamentary procedure

• Committee and disallowance deadlines. Section 10A(3) requires the Legislative Review Committee to consider regulations as soon as practicable and, if Parliament is in session, before the end of the period within which any motion for disallowance may be moved, linking the Committee’s timetable to parliamentary procedure under s 10(5b). The enabling Acts that affect sitting days and sessional calendars will therefore indirectly affect the disallowance timetable.

Transitional provisions

• The legislative history includes a transitional provision associated with the Statutes Amendment (Justice Portfolio) Act 2006 (s 62), which applies Part 3A amendments to regulations previously exempt under a repealed provision and creates specific expiry timing for those regulations. That shows how later Acts amend the operation of expiry rules in this statute as they affect particular instruments.

Practically, every instrument must be read against this Act and the enabling Act, and practitioners must check other Acts that alter publication, confirmation, commencement and expiry rules. The Act is designed to sit alongside, incorporate and be overridden or supplemented by other statutes where those statutes expressly do so.

The Act’s legislative history, recorded in the source, shows a steady program of amendments that have altered its structure and scope since first enacted in 1978 as the Subordinate Legislation Act 1978.

Key chronological points and insertions

• Enactment and early amendments. The Subordinate Legislation Act 1978 (No 3 of 1978) received assent on 23 February 1978 and commenced 1 June 1978. An amendment to s 10(2) was made by the Subordinate Legislation (Expiry) Amendment Act 1992 (No 31 of 1992), with other amendments in the early 1990s.

• Part 3A and expiry regime. Part 3A, dealing with the expiry of regulations, was inserted by the Subordinate Legislation Act Amendment Act 1987 (28/1987), s 4, commencing 23 April 1987. The expiry machinery was later amended by the Subordinate Legislation (Expiry) Amendment Act 1992 (31/1992), which substituted s 16B(1) and added detailed expiry rules based on the date of making. Section entries show that s 16C was inserted by the 1992 amendment as well.

• Legislative Review Committee and referral. Section 10A, requiring regulations to be referred to the Legislative Review Committee, was inserted by the Parliamentary Committees Act 1991 (No 50), Schedule Pt 2, commencing 11 February 1992. Related procedural rules, such as s 10A(1a), were later inserted as well.

• Commencement and certificates. Section 10AA, which sets commencement rules including the four month default and the Ministerial certificate for early commencement, was inserted by the Subordinate Legislation (Expiry) Amendment Act 1992 (31/1992), s 4, commencing 1 August 1992. Subsequent amendments in 2005 (Acts Interpretation (Miscellaneous) Amendment Act 2005, No 13) modified s 10AA(1)-(3) and s 10AA(2).

• Publication and revision. The Legislation Revision and Publication Act 2002 (No 32) amended the long title and s 11 among other provisions, with changes commencing 1 January 2003. Section 11 received further amendment under the Legislation Interpretation Act 2021 (No 36), Sch 1 cl 18, which commenced 1 January 2022.

• Recent structural changes. The Legislation Interpretation Act 2021 made several adjustments to this Act, with Sch 1 cl 15-22 making changes that commenced 1 January 2022. Notably Part 3B (s 16D) was inserted by the 2021 Act, providing commencement rules for legislative instruments other than regulations. Part 4 (ss 16E-16G) was also inserted by the 2021 Act (Sch 1 cl 22), bringing in the general presumptions, revival on disallowance and time of disallowance provisions, all commencing 1 January 2022.

• Superannuation and landscape exclusions. The Southern State Superannuation Act 2009 and related superannuation amendments in 2012 and later affected the list of exclusions in s 16A. The Landscape South Australia Act 2019 also amended s 16A to add certain landscape watercourse regulations as excluded (s 16A(e) and associated entries recorded in the legislative history, with commencement 1 July 2020).

• Justice portfolio transitional provision. The Statutes Amendment (Justice Portfolio) Act 2006 included transitional provisions (s 62) that affected the application of Part 3A to regulations previously exempt from expiry, setting expiry timing for specific regulations (Criminal Investigation (Extraterritorial Offences) Regulations 1986 and Prisoners (Interstate Transfer) Regulation 1984).

Reprints and dates

• The source lists multiple reprints and commencement dates showing the Act’s amendment history: Reprint No 1 (15.1.1992), Reprints No 2-7, and specific commencement dates for amendments in 1992, 1994, 1997, 2003, 2005, 2007, 2009, 2012, 2016, 2020 and 2022. The legislative history table specifies which provisions were substituted, inserted, deleted or amended and the enactments responsible.

Practical consequence of amendments

• Structural shifts. The insertion of Part 3A in 1987 and the later extension and refinement of expiry and commencement rules in the early 1990s materially changed the lifecycle management of regulations. The more recent 2021 Legislation Interpretation Act insertions (Part 3B and Part 4) broadened the Act’s scope to other legislative instruments and added general presumptions and continuity rules, indicating a policy move to codify procedural defaults and evidentiary presumptions across a wider class of instruments.

• Ongoing integration with publication and interpretation regimes. Amendments linked this Act to the state’s central publication and interpretation laws, as reflected in the 2002 and 2021 amendments affecting s 11 and other provisions. Those changes align procedural mechanics with broader state legislative infrastructure.

The legislative history supplied in the source should be read alongside the statute to track which provisions applied at particular times and to identify transitional consequences for instruments made before amendment dates. The Act’s text and the schedule entries in the source provide the precise amendment dates and references for each change.

The statutory text provided does not record any judicial decisions or litigation history. The Act itself lists no cases, and the legislative history records only statutory amendments and transitional provisions. There are no named judicial authorities, reported decisions or case citations in the text supplied.

What the Act does indicate about litigation risk

• Limited procedural challenges. The Act creates procedural presumptions and shields that constrain certain forms of judicial review. Section 16E(1) requires courts to presume necessary conditions and preliminary steps have been satisfied in the absence of evidence to the contrary, and s 10AA(5) states that a Ministerial certificate permitting earlier commencement cannot be called in question in legal proceedings. These provisions alter the evidentiary posture that a litigant must overcome if seeking to challenge a regulation on procedural grounds.

• Disallowance as primary political remedy. Because the Act gives Parliament explicit powers to disallow regulations and because failure to lay a regulation does not affect its operation (s 10(4)), the legislature is the primary forum for contesting executive instruments under this statute. That reduces the centrality of courts in resolving disputes about procedural non‑compliance, insofar as the statute intends the parliamentary route to be the corrective mechanism.

• Revival and continuity effects. Section 16F’s revival rule and s 16G’s timing rule are statutory devices that would be relied on by parties in litigation about the legal status of instruments after disallowance or during repeal disputes. Those rules are procedural and would frame remedial relief in litigation where relevant, but the statute itself does not report case law applying them.

Absent case citations in the Act, readers must consult external legal databases and authorities for judicial treatment of the Act’s provisions. The Act’s built‑in evidentiary and non‑justiciability clauses are likely to affect the shape and success of litigation strategies, but the statute itself contains no recorded litigation history.

Timing traps and accelerated commencement

• Four month default and unchallengeable certificates. Regulations required to be laid before Parliament do not come into force immediately; they come into operation four months after the day they are made unless a later date is specified (s 10AA(1)). A responsible Minister can certify that earlier commencement is necessary or appropriate, allowing immediate or earlier operation (s 10AA(2)(a)). Two consequential risks arise. First, drafters and stakeholders may assume immediate effect where none is intended or may fail to plan for the four month delay. Second, where a Minister issues a certificate for earlier commencement, the certificate cannot be called in question in legal proceedings (s 10AA(5)), and a document appearing to be such a certificate is prima facie accepted as such (s 10AA(4)). That limits judicial review and may leave affected parties with reduced time to plan or seek remedies.

Parliamentary timing and disallowance windows

• Laying vs. invalidation mismatch. A failure to have a regulation laid within six sitting days does not affect the regulation’s operation or effect (s 10(4)), yet the Legislative Review Committee may report failures to comply (s 10(5)) and Parliament retains the disallowance power. Practitioners need to understand that administrative failure to lay does not automatically negate the instrument; political or procedural remedies through the Committee and disallowance remain the route to challenge.

• Notice proceduralities. A notice of motion to disallow must be given within precise sitting day windows: 14 sitting days (which need not be in the same session) for a regulation laid, or six sitting days for a regulation subject to a Committee report (s 10(5b)). Counting sitting days across sessions, prorogation and adjournments can be non‑intuitive and can affect whether a disallowance motion is valid. This procedural technicality can determine whether a motion is effective.

Expiry complexities

• Staggered expiry dates and exceptions. Part 3A sets complex expiry dates depending on when the regulation was made (s 16B(1)(a)-(g)). Additionally, a long list of exclusions in s 16A means many instruments will not be subject to the Part 3A expiry regime. Misclassifying an instrument as excluded or included will produce wrong expiry calculations. For older instruments, the Act treats the "date made" as the date of first Gazettal or first publication under the Legislation Revision and Publication Act 2002 (s 16B(2)), which can be different from the maker’s internal date. Postponement is possible but limited to two year periods and a four year aggregate (s 16C(1)), so reliance on indefinite extension via postponement is not available.

Revival and repeal sequencing

• Revival consequence. If a repealing instrument is disallowed, the instrument or part it sought to repeal revives (s 16F). This can reintroduce older regulatory obligations unintentionally if the draftsman and administration do not account for the possibility of disallowance. Practitioners should check whether a repeal is intended to be contingent upon disallowance outcomes.

Evidence and rebuttal burdens

• Presumption of validity. All preliminary steps required for making an instrument are presumed satisfied absent evidence to the contrary (s 16E(1)). That shifts an initial burden to challengers to produce affirmative evidence of procedural defect. For firms or litigants considering judicial review, assembling evidence to rebut the statutory presumption is essential.

Incorporation pitfalls

• Importing external materials. Section 16E(3) permits incorporation or adoption of external Acts, legislative instruments or documents. If an instrument incorporates material "as in force from time to time" without pinning to a particular version, subsequent alterations in the imported material can change the operation of the local instrument unexpectedly. Drafters should specify fixed versions where stability is required.

Confirmation requirements

• Instruments by others. Where an Act provides that another authority, not the Governor, must make a regulation and that it must be confirmed by the Governor or some other authority before taking effect, s 10(7) requires that confirmation. Failure to secure confirmation means the instrument does not take effect. The interplay between the enabling Act’s delegation and this Act's confirmation rule can be overlooked.

Publication and citation issues

• Publication channel impacts "made" date. Section 16B(2) takes the day a regulation is made to be the day it was published in the Gazette or first published under the Legislation Revision and Publication Act 2002, whichever is first. Administrative delays in publication can therefore affect the instrument’s commencement and expiry dates; practitioners must check publication dates when calculating time limits.

Committee reporting and timing

• Committee report windows. The Legislative Review Committee must consider regulations as soon as practicable and, if Parliament is in session, before the end of the disallowance motion period (s 10A(3)). If the Committee delays, that may constrain Parliament’s ability to act, but the Committee is also empowered to report to the maker when Parliament is not in session (s 10A(4)(b)). Coordination between maker, Committee and Parliament is necessary to manage oversight and potential disallowance risk.

Overall, the main gotchas arise from timing and procedural mechanics: default commencement delays, non‑challengable Ministerial certificates, complex expiry and postponement rules, the presumption of procedural compliance, and the revival effect on repeals. Each of these is grounded in the specific sections cited above.

Checklist for drafters and agencies

1. Determine maker and confirmation requirements. Check the enabling Act. If it does not specify a maker and the Act postdates 16 December 1915, the Governor is the maker by default (s 10(1)). If the enabling Act names an authority other than the Governor, confirm whether confirmation by the Governor or another authority is required before the instrument takes effect (s 10(7)).

2. Plan for laying within six sitting days. Except where another Act expressly displaces this rule, ensure every regulation is laid before each House of Parliament within six sitting days after it has been made (s 10(3)). Even though failure to lay does not invalidate the regulation (s 10(4)), laying enables the Legislative Review Committee process and mitigates political risk.

3. Manage commencement timing. For regulations that must be laid, assume a default commencement four months after the day they are made unless you specify otherwise in the regulation (s 10AA(1)). If early commencement is necessary, obtain a Ministerial certificate stating that earlier commencement is necessary or appropriate and confirm the enabling Act authorises earlier operation (s 10AA(2)(a)-(b)). Prepare to provide the Committee with reasons for any certificate promptly (s 10A(1a)).

4. Prepare publication and numbering logistics. Publish the regulation forthwith in the Gazette or under the Legislation Revision and Publication Act 2002 (s 11). If a Governor’s proclamation has been made for consecutive yearly numbering, ensure the instrument is allocated the correct number (s 13).

5. Assess expiry applicability. Determine whether the regulation falls within the Part 3A regime or an exclusion listed in s 16A. If it is subject to expiry, calculate the applicable expiry date using the making/publishing date rules in s 16B(2) and the tiered expiry schedule in s 16B(1). File expiry dates and plan for postponement or re‑making well before expiry.

6. Use postponement sparingly and within limits. If postponement of expiry is necessary, use a regulation to postpone for no more than two years at a time and no more than four years in aggregate (s 16C(1)). Track aggregate postponement periods to avoid invalid extensions.

7. Document procedural preconditions and evidence. Although s 16E(1) presumes conditions and steps have been satisfied, maintain contemporaneous evidence demonstrating compliance with all preliminary steps and conditions to rebut potential challenges. Keep records proving compliance with consultation, approvals and statutory prerequisites.

8. Mind incorporation language. If intending to incorporate external Acts or documents make clear whether the incorporated material is to be taken as at a fixed date or "as in force from time to time" given the practical and compliance consequences under s 16E(3).

9. Coordinate with the Legislative Review Committee. Where the instrument must be referred to the Committee (s 10A(1)), ensure timely provision of explanatory materials, impact statements and, if a Minister’s certificate has been issued, the report of reasons required by s 10A(1a).

10. Anticipate disallowance windows and parliamentary process. Understand the notice periods in s 10(5b): 14 sitting days for ordinary laying cases or six sitting days after a Committee report. A disallowance motion invalidates a regulation only if moved in strict conformity with these timings. Ensure legal advisers are prepared to respond to parliamentary inquiries and possible disallowance motions promptly.

Operational advice for regulated parties and compliance professionals

• Monitor Gazette publication dates. For determining the date an instrument is "made" for commencement and expiry calculations, rely on the Gazette publication date or the first publication under the Legislation Revision and Publication Act 2002 (s 16B(2)). Subscription to Gazette or official publication channels is essential.

• Confirm applicability and exceptions. Check s 16A exclusions for categories such as local government by‑laws and certain superannuation and landscape regulations to determine whether the expiry regime and its timelines apply.

• Build contingency plans for earlier commencement. Where an early commencement certificate has been issued (s 10AA(2)), organisations should assume the regulation is operational immediately if the certificate and the enabling Act permit it, because the certificate cannot be challenged in court (s 10AA(5)). Plan compliance and communication accordingly.

• Keep track of revival risk. Where an instrument repeals a predecessor, maintain contingency plans in case the repealing instrument is disallowed and the earlier instrument revives under s 16F. That includes assessing ongoing obligations and any transitional arrangements.

Legal review and evidence

• Retain proof of steps taken. Because procedural compliance is presumed under s 16E(1), any later challenge will require evidence to the contrary. Maintain records of approval processes, ministerial advice, consultation and publication to rebut any claims of procedural defects.

• Ensure enabling Act alignment. Cross‑check the enabling Act for any specific commencement, confirmation, consultation or other procedural requirements that override or supplement this Act’s defaults (see ss 10(7), 10AA(2)(b) and 16D(1)(b)). If the enabling Act specifies a different maker, commencement date, or confirmation mechanism, follow that Act’s specifications.

By following these steps and mapping the instrument lifecycle against the sections identified above, drafters and compliance professionals will align practice with the Act’s procedural architecture and reduce exposure to disallowance, administrative error and unforeseen timing outcomes.