Rules Publication Act 1953

Statutory rule is the central concept. Its definition in section 2(1) is deliberately broad and has three limbs: (a) a regulation, rule, or by-law made under an Act by the Governor or a rule-making authority; (b) a proclamation, notice, order-in-council, order, or other instrument that fixes a commencement date, or that repeals, amends, extends, restricts, varies, modifies, or affects the operation of an Act or enactment (as to its provisions, scope, or application); and (c) an instrument of a legislative character made in the exercise of the Crown’s prerogative rights and having force in the State. The breadth of limb (b) is notable: it captures any instrument that “affects the operation” of an Act, which could include many administrative orders, directions, or determinations that have legal effect. However, the definition expressly excludes regulations, by-laws, or other legislative instruments made by a local authority or by a person or body whose jurisdiction is limited to a district, locality, or part of the State - so local council by-laws fall outside the Act entirely. The definition also excludes judicial orders, awards, decrees, and decisions (section 4(1)(f)). The rule-making authority is defined as a person (other than the Governor) or body (incorporated or unincorporated) authorised by or under an Act to make statutory rules, however described in that Act. This includes ministers, public service officials, and statutory office holders. The term print is not defined in the Act itself but is incorporated by reference from section 6(10) of the Legislation Publication Act 1996, meaning the concept is dynamic and changes if that Act is amended. A critical procedural concept is the determination power in section 2(2): if a question arises as to whether an instrument or class of instruments is a statutory rule, the Attorney-General decides, and that decision is final. This gives the Attorney-General ultimate interpretive authority, subject only to judicial review on administrative law grounds (though the Act states “final” without qualification). The exemption power in section 4 is equally broad: the Attorney-General may exempt an instrument or class if in his or her opinion it is “unnecessary or undesirable” that it be numbered and printed in accordance with the Act. The exemption is by notice in writing. Exempted instruments remain subject to any other publication requirements in their enabling Act (section 4(3)). Finally, the citation provisions allow three modes: short title (if any), year-and-number, or “S.R. [year] No. [number]”. This standardisation was important when the Act was first enacted to ensure consistent referencing of delegated legislation.

The primary duty-bearers under the Act are rule-making authorities - those persons or bodies authorised by other Acts to make regulations, rules, by-laws, proclamations, orders, or other legislative instruments. This includes ministers, the Governor (though the Governor is not a “rule-making authority” as defined, the Act applies to instruments made by the Governor as well), statutory corporations, and some public officials. These authorities must ensure that once a statutory rule is made, it is sent for numbering and production in accordance with section 5(1). They do not, however, need to print or publish the rule themselves; that function is delegated to the Chief Parliamentary Counsel and approved producers. The Attorney-General is centrally affected: he or she has the power to determine whether an instrument is a statutory rule (section 2(2)), to exempt instruments from the Act (section 4(2)), and (through regulations) to authorise the Minister or Chief Parliamentary Counsel to determine matters (section 9(2)). The Chief Parliamentary Counsel also has a key role in approving numbering, approving the form of production, and, since 2013, examining and revising drafts of proposed statutory rules (section 9(1)(f)). The Chief Parliamentary Counsel can prohibit the making of a rule until the draft has been examined and revised. This imposes a gatekeeping function that directly affects the speed and content of delegated legislation. Legal practitioners, compliance professionals, journalists, and researchers who rely on statutory rules are indirect beneficiaries of the publication regime, but they also face uncertainty when rules are exempted or when the Attorney-General’s determination is not published. Persons subject to statutory rules - businesses, property owners, individuals - are affected because the Act determines whether a rule is properly published and therefore enforceable. If a rule is exempted from printing and numbering, it may be harder to find and rely upon. The exclusion of local authority by-laws means that ratepayers and residents must look to separate local government legislation for publication requirements. Judicial tribunals are specifically excluded from the definition of statutory rule, so their orders do not require this Act’s procedure. The Act’s compliance burden falls almost entirely on government actors, not the private sector, but the consequences of non-compliance - unclear enforceability of delegated legislation - can impose costs on private parties.

The core duty is imposed on the maker of a statutory rule after it is made: the rule must be numbered in a manner approved by the Chief Parliamentary Counsel and sent to a person approved in writing by the Chief Parliamentary Counsel under the Legislation Publication Act 1996 for production or distribution (section 5(1)). Failure to do so does not carry an express penalty in this Act, but may affect the rule’s validity or enforceability under the enabling Act or at common law. A second duty is on the person producing the statutory rule: it must contain a reference to the enabling Act or authority, the date of making, and the date of effect (section 5(3)). However, if formal or introductory parts are omitted, the produced copy is still taken for all purposes to be a correct copy (section 5(4)) - so the duty is slightly relaxed in favour of practicality.

The right to cite a statutory rule is provided in section 6, without prejudice to any other mode of citation. This gives legal professionals a safe harbour to use the standardised citation forms (short title, year-number, or S.R. notation).

The right to rely on Gazette notice is important: where an enabling Act requires statutory rules to be published or notified in the Gazette, a notice stating that the rule has been made, indicating its general purport or effect, and stating where copies can be obtained is sufficient compliance (section 5(2)). This means the full text need not be printed in the Gazette; only a summary. This reduces publication costs but also reduces the information available in a single source.

The right to seek exemption rests with the Attorney-General, not with rule-making authorities directly. A rule-making authority may request an exemption, but the discretion is entirely the Attorney-General’s. There is no statutory right to compel an exemption or to challenge the Attorney-General’s refusal, save by general administrative law remedies.

The power to determine whether an instrument is a statutory rule is vested in the Attorney-General, and section 2(2) says the decision is final. While this probably does not oust all judicial review (the High Court has held that privative clauses cannot exclude review for jurisdictional error), the provision creates a strong presumption in favour of the Attorney-General’s interpretation. This imposes a duty on anyone uncertain about the classification to seek a determination, but there is no statutory mechanism requiring the Attorney-General to publish determinations or to keep a register.

The duty to examine drafts is imposed on the Chief Parliamentary Counsel by regulations under section 9(1)(f) (added in 2013). The Governor may make regulations prohibiting the making of statutory rules until the draft has been examined and, if necessary, revised by the Chief Parliamentary Counsel. This gives the Chief Parliamentary Counsel a veto of sorts over the substance of delegated legislation, at least as to form and legality.

The Act itself contains no express penalties for non-compliance. There is no offence for failing to number or send a statutory rule for production, nor for producing it without the required content. Enforcement is indirect: if a statutory rule is not numbered and produced in accordance with the Act, it may not be considered properly made or published under the enabling Act. This could lead to challenges to the validity of the rule in court proceedings. The savings provision in section 5(4) - that omission of formal parts does not affect the status of a copy - suggests that minor non-compliance is tolerated. The real teeth come from the regulatory power: section 9(1)(f) allows regulations to prohibit the making of a statutory rule until the draft has been examined and revised by the Chief Parliamentary Counsel. That prohibition could be enforced by an injunction or by a declaration that a rule made in breach of regulation is void. But the Act does not specify consequences.

The Attorney-General’s determination under section 2(2) is stated to be final, which creates a strong barrier to challenging classification decisions. Any enforcement of that decision would be through administrative law (judicial review for jurisdictional error) rather than through criminal or civil penalties.

The exemption power under section 4(2) is similarly unreviewable on its merits. An exempted instrument is simply outside the Act’s operation. If a rule-making authority fails to seek an exemption and fails to comply, the only consequence is that the instrument may not be enforceable, but the Act does not say that non-compliance renders the instrument invalid. That depends on the enabling Act and the common law.

In practice, the enforcement mechanism is the public interest in certainty and the reputational cost to government of producing unnumbered or unpublished rules. Legal professionals and affected citizens can challenge the enforceability of a rule that has not been properly processed. However, the broad exemption power and the final determination power concentrate significant enforcement discretion in the Attorney-General, reducing the incentive for rule-making authorities to comply tightly. The Act’s lack of penalty provisions is consistent with its character as a machinery Act, but it also means that non-compliance carries no direct cost to the maker, only a risk of litigation later.

The Act is expressly subordinate to the Legislation Publication Act 1996 (SA), which is referenced for the definition of “print” and for the process of reprinting statutory rules. Section 5(1) refers to sending the rule to a person approved under section 6(10) of the 1996 Act. That Act now governs the overall publication and accessibility of legislation; the Rules Publication Act 1953 has been largely superseded in its operative functions, retaining only residual requirements for numbering, citation, and exemptions. The 1953 Act’s provisions for printing and annual volumes have been overtaken by the 1996 Act’s electronic publication regime.

The Act interacts with enabling Acts that authorise the making of statutory rules. Many enabling Acts contain their own publication requirements, typically requiring rules to be published in the Gazette. Section 5(2) of this Act provides an alternative: a notice of the making, with general purport and place of copies, suffices. This means that a rule-making authority can comply with both the enabling Act and this Act by a single Gazette notice, without printing the full text. If the enabling Act requires full publication, section 5(2) overrides that requirement to the extent of allowing a summary.

The exclusion of local authority by-laws (section 2(1) definition of statutory rule, excluding instruments made by a person or body with jurisdiction limited to a district) means that the Local Government Act and associated regulations govern the publication of council by-laws. This Act does not apply.

The exemption power (section 4(2)) allows the Attorney-General to exempt instruments from numbering and printing, but section 4(3) preserves any requirement in the enabling Act that the instrument be published or notified in the Gazette. So an exemption under this Act does not relieve the maker of a separate statutory publication duty.

The judicial exclusion (section 4(1)(f)) means that court rules, practice directions, and judgments are not statutory rules under this Act, even if they have legislative character. They remain subject to their own publication regimes under court legislation.

The prerogative instruments limb (paragraph (c) of the definition) brings certain instruments made under the Crown’s prerogative into the statutory rule framework, but only if they are of a legislative character and have force in the State. This may interact with constitutional principles about the scope of prerogative power, though the Act itself does not purport to define that scope.

The 2013 amendment to section 9(1)(f) added the requirement for examination of drafts by the Chief Parliamentary Counsel. This creates a procedural step that must be complied with before a statutory rule is made, and if regulations are made under that paragraph, they will have the force of law and can prohibit making until examination is complete. This interacts with the enabling Act’s timing requirements - if an enabling Act requires a rule to be made by a certain date, the examination requirement could cause delay.

The Act received assent in 1953 and commenced on 1 January 1954. It has been amended or affected by at least the following instruments (based on annotation evidence in the source text):

• No. 39 of 1957 - amended section 4(1) (exemptions) by adding or substituting reference.
• No. 36 of 1958 - amended section 2(1) (interpretation) by inserting a definition or modifying existing definition (schedule 3).
• No. 11 of 1979 - repealed section 8.
• No. 99 of 1982 - amended sections 5(4) and 7(1) (now repealed) with schedule 2, part II.
• No. 5 of 1990 - repealed section 3 (schedule 1).
• No. 46 of 1991 - amended section 4(1) (schedule 3).
• No. 10 of 1992 - amended section 9 (regulation-making power) at section 17.
• No. 68 of 1994 - amended section 4(1) (schedule 1).
• No. 63 of 1997 - a major amendment. Applied from 23 March 1998. It substituted section 5(1), (3), and (4); substituted section 9; repealed section 7; and amended section 2(1) (definition of “print” inserted by reference to Legislation Publication Act 1996) and section 2(2) (determination of statutory rule). This amendment effectively transferred operational roles from the original provisions to the new publication regime.
• No. 9 of 2003 - amended section 4(1) by repealing a paragraph (schedule 1, applied 16 April 2003).
• No. 18 of 2013 - amended section 9(1) by adding paragraphs (f) and attempting (g) (g was not inserted, or was repealed; the text shows “(g) …”). Applied 20 June 2013. Gave the Governor power to make regulations for examination and revision of drafts of statutory rules by the Chief Parliamentary Counsel, and to prohibit making until that is done.

The Act’s core has been retained, but most of its operational detail has been either repealed (sections 3, 7, 8) or replaced by external legislation. The 1997 amendment was the most significant, aligning the Act with the then-new Legislation Publication Act 1996. The 2013 amendment added a quality-control function over draft rules.

The source text contains no references to any litigation. No cases are named, cited, or discussed. This is consistent with the Act being a procedural and administrative measure that rarely gives rise to discrete litigation. Disputes about whether an instrument is a statutory rule, or about the sufficiency of publication, would typically be raised as subsidiary issues in judicial review of the rule itself, not as primary actions under this Act. The finality clause in section 2(2) (Attorney-General determines) tends to discourage direct challenges. In the absence of case law in the source, it is appropriate to note that the Act has not been the subject of reported interpretive litigation of note, at least not in the publicly available record as reflected in the source. Any litigation history would need to be verified through case law databases outside the source. The Act’s age (1953) suggests there may have been early challenges to its provisions, but the source does not document them. The 1997 and 2013 amendments may have generated some administrative law proceedings, but again no case law is provided. It is therefore safest to state that the source reveals no litigation history.

1. The definition of “statutory rule” catches far more than classic regulations. Limb (b) of section 2(1) includes any proclamation, notice, order, or instrument that “affects the operation” of an Act. This can catch things like fee schedules, lists of approved forms, or even ministerial directions that change how a provision applies. The rule-making authority may not realise that an instrument they treat as merely administrative is actually a statutory rule requiring numbering and production. The risk is that such an instrument may be unenforceable if not processed under this Act.

2. The Attorney-General’s determination is final but not necessarily conclusive. Section 2(2) says the Attorney-General decides whether an instrument is a statutory rule and that the decision is final. This likely ousts merits review but does not preclude judicial review for jurisdictional error. If the Attorney-General makes a patently unreasonable decision or misunderstands the law, a court may still intervene. The Act does not require the Attorney-General to give reasons or publish the determination, so third parties may never know whether a determination has been made.

3. Exemptions under section 4(2) are entirely discretionary and can be broad. The Attorney-General may exempt a class of instruments if it is “unnecessary or undesirable” that they be numbered and printed. No criteria are specified. This could be used to exempt entire categories of delegated legislation from public scrutiny, reducing transparency. The exemption does not relieve the instrument from other publication requirements under the enabling Act, but those may be minimal.

4. The “print” definition is a moving target. Because “print” is defined by reference to section 6(10) of the Legislation Publication Act 1996, any amendment to that section changes the meaning under this Act without an amendment to this Act. A rule-making authority must check the current version of the 1996 Act to know what production obligations apply.

5. Section 5(2) allows a mere notice of “general purport or effect” to satisfy gazettal requirements. This means the public may not see the actual text of a rule in the Gazette; only a summary. If the enabling Act requires full text publication, this section overrides it. Practitioners relying on the Gazette may miss the full rule.

6. Section 5(4) cures omission of formal parts, but only if the rule is “produced in accordance with subsection (3)”. That subsection requires a reference to the enabling Act and dates of making and effect. If those are missing, the savings provision may not apply. The producer must ensure at least those three pieces of information are included.

7. The Governor’s regulation-making power under section 9 is exceptionally broad. Section 9(1) is not limited by the specific paragraphs; the words “in particular and without prejudice to the generality of this section” mean regulations can go beyond the listed matters. This could be used to impose new duties on rule-making authorities without further amendment to the principal Act. For instance, regulations could require electronic uploading, or impose fees.

8. The draft-examination power under section 9(1)(f) (added 2013) can delay the making of rules. The Governor may make regulations prohibiting the making of a statutory rule until the draft has been examined and revised by the Chief Parliamentary Counsel. There is no time limit for that examination. A rule-making authority facing a statutory deadline could be caught if the Chief Parliamentary Counsel takes time.

9. Local authority by-laws are excluded, but not all local instruments. The exclusion applies only if the maker “has jurisdiction limited to a district, locality, or part of the State”. A regional health authority or water board that covers more than one district may not be a local authority for this purpose, and its instruments may be statutory rules.

10. The Act does not specify what happens if a rule is not numbered or produced. There is no deemed invalidity clause. The common law principle that subordinate legislation must be properly made and published to have effect will apply, but the Act provides no express consequence.

For a rule-making authority making an instrument that may be a statutory rule, the steps are:

1. Classify the instrument. Determine whether it falls within the definition in section 2(1). Consider limb (b) carefully - does it affect the operation of an Act? If uncertain, seek a determination from the Attorney-General under section 2(2). Note that determination is final, so it is prudent to ask early.

2. Check for exemptions. See if the instrument is exempt under section 4(1) (judicial orders, or if it is a local authority instrument). If not, consider whether the Attorney-General might exempt it under section 4(2) as unnecessary or undesirable to number and print. Apply in writing. If exemption is granted, note that any separate Gazette publication requirement under the enabling Act remains.

3. After making the rule, promptly number it. Contact the Chief Parliamentary Counsel for approval of a numbering system consistent with section 5(1). The Chief Parliamentary Counsel will specify the format.

4. Send the rule for production. Under section 5(1), send it to a person approved in writing by the Chief Parliamentary Counsel under section 6(10) of the Legislation Publication Act 1996. The approved producer will handle printing or electronic production.

5. Ensure the produced copy contains required content. Under section 5(3), the rule must include: a reference to the Act or other authority under which it was made; the date it was made; and the date it takes effect. Even if formal or introductory parts are omitted, this core information must be present. The Chief Parliamentary Counsel approves the form.

6. Satisfy any Gazette publication requirement. If the enabling Act requires publication or notification in the Gazette, section 5(2) allows a notice stating that the rule has been made, indicating its general purport or effect, and stating where copies can be obtained. You do not need to republish the full text. Ensure the notice is accurate.

7. Consider the draft-examination requirement. Since 2013, regulations under section 9(1)(f) may prohibit making a rule until the draft has been examined and revised by the Chief Parliamentary Counsel. Check if such regulations exist. If so, send the draft to the Chief Parliamentary Counsel well before the intended making date, and allow time for revision.

8. Create a citation. Under section 6, you may cite the rule by short title (if assigned), by year and number, or by “S.R. [year] No. [number]”. Ensure the numbering is consistent.

9. Maintain records. Although the Act does not require a register, keep a copy of the determination (if obtained), the exemption notice (if granted), the numbered rule as produced, and any Gazette notice. This will assist in proving compliance if the rule’s validity is challenged.

10. For legal practitioners and advisers: When relying on a statutory rule, verify that the rule you have is a produced copy under the Act. Check that it contains the required references and dates. If in doubt, consult the Attorney-General’s determination or ask the rule-making authority if an exemption applies. If a rule appears not to have been numbered or produced, consider whether it is enforceable.

11. For journalists and researchers: The Act’s exemption power means some important instruments may not appear in the standard statutory rules series. You can request from the Attorney-General a list of exempt instruments. The Gazette notice under section 5(2) is often the only public indicator; search the Gazette for notices of making.