Subordinate Legislation Act 1992

Subordinate legislation: The Act defines “subordinate legislation” broadly to include regulations, rules, by‑laws made by the Governor or made by others but requiring the Governor’s approval, and any other instrument of legislative character made under an Act that the Treasurer declares to be subordinate legislation (s 3(1) and s 3(2)). The Act therefore treats both classic statutory instruments and certain instruments declared by Treasurer notice as subordinate legislation for the purposes of its procedural regime. The Act also expressly states that a Treasurer’s notice making such a declaration is not a “statutory rule” under the Rules Publication Act 1953 (s 3(3)).

Guidelines and Secretary oversight: The Treasurer may issue guidelines for preparation of subordinate legislation by Gazette notice (s 3A(1)). Those guidelines may address objectives, assessment of advantages and disadvantages, competition impacts, alternative options and standardisation of procedural steps (s 3A(2)). Until the Treasurer issues fresh guidelines, the Act takes Schedule 1 to be the operative guidelines (s 19). The responsible Minister must ensure compliance with the Treasurer’s guidelines “so far as is reasonably practicable” before subordinate legislation is made (s 4).

Regulatory impact statements: The Act requires a regulatory impact statement meeting Schedule 2 whenever proposed subordinate legislation would impose a “significant burden, cost or disadvantage” on any sector of the public (s 5(1)). The Secretary decides whether any part of proposed subordinate legislation is sufficiently significant to trigger an RIA, and that decision is conclusive (s 5(1A)-(1C)). If an RIA is necessary, the responsible Minister must obtain a certificate from the Secretary certifying compliance with Schedule 2 requirements and that the proposed consultation is appropriate before proceeding to the consultation step (s 5(1D) and s 5(2A)). Schedule 2 prescribes the content of the RIA, including objective statements, identification of alternatives, quantified costs and benefits where possible, competition impact assessment and a statement of consultation (Schedule 2 items 1-2).

Consultation and publication: Where an RIA is required, the responsible Minister must publish a notice in the Gazette and in at least three daily newspapers circulated generally throughout Tasmania setting out the objects of the proposed subordinate legislation, where to obtain the RIA and proposed instrument, and inviting submissions for at least 21 days (s 5(2)(a)(i)-(iv)). The Minister must consult with appropriate representatives of consumers, public interest groups and affected sectors and consider all submissions (s 5(2)(b)-(c)). The extent of consultation must be commensurate with the likely impact (s 5(3)).

Referral to Chief Parliamentary Counsel and documents to Committee: Proposed subordinate legislation must be submitted to the Chief Parliamentary Counsel for advice on powers, retrospective effect, tax/fine/penalty implications, delegation and clarity (s 7). Advice of Counsel and required certificates must be submitted with proposed subordinate legislation when it is presented for making or Governor approval (s 8). After subordinate legislation is made, the responsible Minister must send copies of the Counsel advice and the relevant certificates to the Subordinate Legislation Committee within seven days of Gazette publication or seven days of making if not published (s 9(1A)-(2)).

Staged repeal: The Act stages repeal of older subordinate legislation on specified cohort dates for historical instruments and, for anything made after commencement, automatically repeals subordinate legislation on the tenth anniversary of its making (s 11(1)-(2)). The Act clarifies that the repealed text is the consolidated form as amended, not the amending instruments (s 11(3)). Repeal of a piece of subordinate legislation also repeals any amending subordinate legislation (s 11(4)). The Governor may postpone repeal by up to 12 months by order made before the scheduled date (s 11(5)-(6)). For the purposes of timing, the date of making is the Gazette publication date (s 12).

Exemptions and administrative categories: Schedule 3 lists matters that may be certified as exempt from the guidelines and RIA process, including corrections, transitional provisions, uniform or complementary Commonwealth/state matters, adoption of standards where costs were assessed, procedural or machinery matters, internal departmental administrative matters and certain fees if increases do not exceed the Hobart CPI since last fixed (Schedule 3 Parts 1 and 2). There is also an exemption route for Government Business Enterprises in narrow circumstances (s 6(c)).

Administrative and legal effect: The Act establishes administrative machinery, imposes certain pre‑making certifying requirements and directs post‑making disclosure to the Subordinate Legislation Committee. Notably, failure to comply with the procedural parts of Part 2 does not affect the validity of subordinate legislation (s 10(1)). The Act gives the Governor power to make regulations for its purposes (s 14(1)) and, until a fixed date in the 1990s, to alter Schedules (s 14(2)-(3) as expressed in the text).

Responsible Ministers and Departments: The primary duty‑bearer under the Act is the responsible Minister for the Act under which the subordinate legislation would be made (definition in s 3(1)). That Minister must ensure compliance with the Treasurer’s guidelines “so far as is reasonably practicable” (s 4), ensure an RIA is prepared where required (s 5(1)) and carry out the consultation and publication steps mandated when an RIA is necessary (s 5(2)). The responsible Minister is also tasked with submitting Counsel advice and certificates when proposing subordinate legislation for making or Governor approval (s 8) and with sending required documents to the Subordinate Legislation Committee after the instrument is made (s 9(1A)).

Secretary of the Department: The Secretary has decisive gatekeeper functions. The Secretary determines whether parts of proposed subordinate legislation would impose a significant burden, cost or disadvantage such that an RIA is required, and the Secretary’s determination is declared conclusive (s 5(1A)-(1C)). Where an RIA is required, the Secretary must certify that the RIA complies with Schedule 2 and that proposed consultation is appropriate; that certificate must be obtained before consultation is undertaken (s 5(1D) and s 5(2A)). The Secretary also issues certificates under s 6 for certain exemptions and provides certificates to the responsible Minister (s 6(a), s 8).

Treasurer: The Treasurer may, by Gazette notice, declare an instrument of legislative character made under an Act to be subordinate legislation for the purposes of the Act (s 3(2)). The Treasurer may issue guidelines for the preparation of subordinate legislation (s 3A(1)) and rescind or reissue those guidelines (s 3A(4)). The Treasurer also has a specific power to certify that in special circumstances the public interest requires subordinate legislation to be made without complying with sections 4 and 5 (s 6(b)). The Treasurer’s declarations that make instruments subordinate legislation are not treated as statutory rules under the Rules Publication Act 1953 (s 3(3)).

Chief Parliamentary Counsel: Proposed subordinate legislation must be submitted to the Chief Parliamentary Counsel for advice on whether it appears to be within the powers of the relevant Act, has retrospective effect without express authority, imposes penalties, sub‑delegates powers, is within general objectives, and is expressed clearly (s 7). The Advice of the Chief Parliamentary Counsel must accompany proposals presented to the Governor (s 8) and must be forwarded to the Subordinate Legislation Committee after making (s 9(1A)).

Subordinate Legislation Committee: The Act requires the responsible Minister to forward specified materials to the Subordinate Legislation Committee within seven days of Gazette publication or of making (s 9(1A)-(2)). If the Committee is not in office when the materials are required, they are sent to a nominated person for the Committee’s attention after appointment (s 13).

Government Business Enterprises: The Act provides an exemption path for subordinate legislation administered by a Government Business Enterprise where the legislation exclusively concerns commercial operations, does not relate to public regulatory functions, and where the Secretary is satisfied that complying with the rules would impede or diminish commercial efficiency (s 6(c)(i)-(iii)).

Affected public, consumers and industry: The Act imposes consultation obligations where an RIA is required, with publication in the Gazette and in at least three statewide daily newspapers, an invitation for submissions of not less than 21 days, and consultation with appropriate representatives of consumers and affected industry sectors (s 5(2)(a)-(c)). This is the avenue by which members of the public and interest groups are affected and can make submissions.

Publishers and Gazette: The Gazette serves as the date‑of‑making publication mechanism for timing the staged repeal system and for RIA notices (s 5(2)(a); s 12). The requirement to publish notices in at least three daily newspapers distributed throughout Tasmania imposes a practical publication and distribution burden on Ministers when an RIA is required (s 5(2)(a)).

Governor: The Governor makes subordinate legislation under other Acts and, in this Act, is empowered to make regulations for the purposes of the Act (s 14(1)) and to postpone staged repeal dates by order up to 12 months (s 11(5)). For practical purposes, the Governor is the formal decision point for making instruments that fall within this regime and for postponing repeal.

Who pays: Departments and Ministers bear the preparatory and publication costs of RIAs, consultations, newspaper notices, and compliance work. Government Business Enterprises may obtain exemption where complying would impede commercial efficiency, but the Secretary must certify that. The Secretary’s office will acquire workload in making determinations and issuing certificates. The Subordinate Legislation Committee receives documentation for oversight. The text does not create new monetary penalties payable by third parties, but it does require resource expenditure by government agencies to meet the procedural requirements.

Responsible Minister duties: The core statutory duty is to ensure the guidelines issued under s 3A are complied with “so far as is reasonably practicable” before subordinate legislation is made (s 4). When a proposed subordinate instrument will impose a significant burden, the responsible Minister must ensure an RIA conforming to Schedule 2 is prepared (s 5(1)) and, if an RIA is necessary, to carry out specified publication and consultation steps before making the instrument (s 5(2)). The Minister must also submit proposed subordinate legislation to Chief Parliamentary Counsel for advice (s 7) and, when forwarding instruments for Governor making or approval, must include Counsel’s advice together with the appropriate certificate(s) specified in s 8.

Secretary duties and decisive powers: The Secretary must determine whether parts of proposed subordinate legislation would impose a significant burden, cost or disadvantage on any sector of the public (s 5(1A)). Once the Secretary makes that determination, it is “conclusive” under the Act (s 5(1C)). If an RIA is necessary, the Secretary must provide a certificate to the responsible Minister certifying that the RIA complies with Schedule 2 and that proposed consultation is appropriate; the responsible Minister must not undertake the consultation steps in s 5(2) before obtaining that certificate (s 5(1D); s 5(2A)). Under s 6(a) the Secretary may certify in writing that proposed subordinate legislation concerns matters listed in Part 1 of Schedule 3 or falls within categories in Part 2, thereby making compliance with ss 4 and 5 unnecessary in those cases.

Right to rely on Secretary certificates: Responsible Ministers obtain a statutory, documentable right to proceed in reliance on the Secretary’s certificate that an RIA complies with Schedule 2 and that consultation proposed is appropriate (s 5(1D)). The Secretary’s determinations themselves are conclusive (s 5(1C)). The Act does not, within its text, provide for appeal against those certificates.

Publication and consultation duties: Where an RIA is required, the responsible Minister must publish a notice in the Gazette and in at least three daily newspapers circulated throughout Tasmania, stating objects, where to obtain the RIA and proposed subordinate legislation, and inviting submissions for not less than 21 days (s 5(2)(a)(i)-(iv)). The Minister must also consult with appropriate representatives of consumers, the public, relevant interest groups and affected sectors, and consider all comments and submissions received (s 5(2)(b)-(c)). The extent of consultation must be commensurate with the likely impact (s 5(3)).

Chief Parliamentary Counsel duties: Proposed subordinate legislation must be submitted to the Chief Parliamentary Counsel for advice as to whether it appears to be within the powers conferred by the relevant Act, whether it appears to have retrospective effect or to impose penalties without clear authority, whether it sub‑delegates powers, whether it is within the Act’s objectives, and whether it is expressed with clarity (s 7). The advice must be submitted with the instrument when presented for making, approval or consent by the Governor (s 8).

Post‑making reporting duty: After subordinate legislation is made, the responsible Minister must send to the Subordinate Legislation Committee the Chief Parliamentary Counsel’s advice and the applicable certificate within seven days of publication in the Gazette or seven days of making if not required to be published (s 9(1A)-(2)). If an RIA was prepared, copies of the RIA and of comments/submissions, if any, must accompany the materials sent to the Committee (s 9(1A)(c)(i)-(ii)).

Staged repeal and Governor powers: The Act imposes a duty to track lifetime and expiry: subordinate legislation made on or after the Act’s commencement is repealed on the tenth anniversary of the date it was made (s 11(2)). The Governor may postpone a scheduled repeal date by order up to 12 months where the order is made before the scheduled repeal date (s 11(5)-(6)).

Validity and limits: The Act expressly provides that non‑compliance with the procedural obligations in Part 2 does not affect the validity of subordinate legislation (s 10(1)). Additionally, the Part’s requirements are stated to be in addition to any requirements in other Acts (s 10(2)). The Act therefore grants de jure validity to instruments made despite procedural failures under this Act.

Regulatory rights: The Act gives the Treasurer power to issue and rescind guidelines and to declare instruments to be subordinate legislation (ss 3A and 3(2)). It also provides the Treasurer with a discretionary power to depart from Parts 4-5 requirements in “special circumstances” where the Treasurer certifies that the public interest requires making subordinate legislation without complying with ss 4 and 5 (s 6(b)).

Exemption rights: Entities can be excluded from the RIA/guideline regime where the Secretary certifies the instrument falls into Schedule 3 categories (s 6(a)), where the Treasurer so certifies in special circumstances (s 6(b)), or where the instrument concerns Government Business Enterprise commercial operations and the Secretary so certifies (s 6(c)). Schedule 3 lists categories such as corrections, transitional matters, adoptions of standards where costs were already assessed, and some fee adjustments linked to the Consumer Price Index.

Procedural discretion versus judicial consequences: The Secretary’s determinations are statutorily “conclusive” (s 5(1C)) and the Act declares procedural non‑compliance does not affect validity (s 10(1)). Those features embed administrative finality in parts of the regime. The Act does not explicitly provide a private right to review Secretary determinations or to seek invalidation of subordinate legislation on the basis of non‑compliance with ss 4-5.

Statutory penalties: The Act contains no express penal provisions, monetary fines, or criminal offences in the text provided. There is no section that prescribes civil or criminal sanctions for failure to comply with the procedural requirements in Part 2. The Act instead establishes administrative obligations and certificates without attaching specified penalties to non‑compliance.

Validity and legal effect: The Act states that failure to comply with the provisions of Part 2 does not affect the validity of subordinate legislation (s 10(1)). This has two immediate enforcement implications: (a) third parties may not be able to rely on procedural non‑compliance to have subordinate legislation declared invalid under this Act; and (b) the Act prioritises remedial administrative oversight and review through the Subordinate Legislation Committee rather than invalidation through procedural defect remedies under this Act.

Administrative enforcement: The Act creates internal administrative controls and documentary obligations designed to produce transparency and oversight rather than immediate punitive consequences. These include the Secretary’s certification powers (s 5(1D) and s 6(a)-(c)), the requirement to obtain Chief Parliamentary Counsel advice (s 7) and to include that advice and certificates when instruments are submitted for making (s 8), and the duty to provide specified materials to the Subordinate Legislation Committee within seven days of Gazette publication (s 9(1A)-(2)). These duties create internal accountability pathways: the Subordinate Legislation Committee will receive documents enabling parliamentary scrutiny.

Discretionary override: The Treasurer can certify that in special circumstances the public interest requires subordinate legislation be made without complying with ss 4 and 5 (s 6(b)). That power is discretionary and functionally acts as an administrative escape valve; the text itself does not prescribe checks or penalties for exercise of that discretion.

Potential for regulations under the Act: The Governor may make regulations for the purposes of this Act (s 14(1)). Those regulations could, if later made, contain enforcement provisions or penalties, but none appear in the Act’s text supplied. The Act therefore provides a mechanism for future regulatory enforcement instruments but contains no express penal regime itself.

Remedies and review: The Act’s text does not specify judicial remedies, appeals, or review processes against Secretary determinations, Treasurer declarations, or the validity of the subordinate legislation insofar as procedural Part 2 non‑compliance is concerned. The Secretary’s determination as to whether an RIA is required is declared “conclusive” (s 5(1C)), which is a statutory constraint on internal administrative contestation. However, the Act does not expressly address external judicial review or remedies; those remain outside the document’s express terms.

Operational enforcement risks: Because the Act embeds administrative finality (conclusive Secretary determinations, non‑affecting of validity) and relies on post‑making committee reporting, enforcement in practice will be political and parliamentary (committee scrutiny, public visibility, reputational consequences) rather than cold statutory sanctions. Departments responsible for subordinate legislation therefore face oversight risk and reputational costs rather than specified financial penalties under the Act itself.

Rules Publication Act 1953: The Act explicitly removes certain Treasurer notices from classification as “statutory rules” under the Rules Publication Act. Section 3(3) provides that a notice by the Treasurer declaring an instrument of legislative character to be subordinate legislation is not a statutory rule within the meaning of the Rules Publication Act 1953. That creates a carved‑out procedural treatment for those Treasurer declarations relative to the Rules Publication Act’s requirements.

Subordinate Legislation Committee Act 1969: The Act engages the Subordinate Legislation Committee by requiring responsible Ministers to send specified documents (Chief Parliamentary Counsel advice, Secretary certificates, RIAs where applicable, and submissions received) to the Committee within seven days of Gazette publication or of making (s 9(1A)-(2)). Where the Committee is not in office, s 13 prescribes sending material to a nominated person for the Committee’s attention after appointment. The Act therefore embeds parliamentary committee oversight within the subordinate instrument lifecycle.

Census and Statistics Act 1905 and Consumer Price Index: The Act’s definition of Consumer Price Index in s 3(1) refers to the Consumer Price Index: All Groups Index for Hobart published by the Australian Statistician under the Census and Statistics Act 1905 (Commonwealth). That definition is used in Schedule 3 Part 2(1) to set an exemption for fees that do not increase faster than the CPI since last fixed. This cross‑reference ties a state administrative exemption to a Commonwealth statistical measure.

Government Business Enterprises Act 1995: The Act provides a specific exemption for subordinate legislation administered by a Government Business Enterprise within the meaning of the Government Business Enterprises Act 1995 (s 6(c)). That exemption is conditional on Secretary certifications about the nature of the proposed subordinate legislation and the commercial impact of complying with ss 4 and 5. The interaction allocates a special pathway for GBE commercial instruments.

Administrative Arrangements Act 1990 and State Service Act 2000: Schedule 1(2)(e) requires consultation if subordinate legislation would impinge upon or affect the area of responsibility of another government department as defined in the Administrative Arrangements Act 1990, and Schedule 1(2)(e) as amended by No. 86 of 2000 explicitly references the State Service Act 2000 and requires interdepartmental consultation to reconcile differences and avoid overlap. The Act thus mandates administrative coordination consistent with other departmental allocation regimes.

Acts Interpretation Act 1931: The Act lists the Acts into which its amendments have been incorporated in the authorised versions, including the Acts Interpretation Act 1931 (sections 15 and subsequent notes). While the text does not specify direct operational interactions, cross‑references to legal drafting and interpretation frameworks in the jurisdiction are likely to be relevant to the practical interpretation of terms such as “made” and “published”.

Gazette and publication rules: Section 12 provides that subordinate legislation is “to be taken to have been made on the date on which it was published, or notification of its making was published, in the Gazette” for the purposes of the staged repeal regime (s 11). Thus the Gazette publication regime plays a deterministic role in the interaction between the timing rules of this Act and the publication rules that govern statutory instruments. Instruments treated by law as made under another Act use their original publication date for staged repeal purposes (s 12(2)).

Other Acts that contain subordinate legislation: The Act’s coverage extends to instruments made “under the authority of an Act” where the Treasurer declares them subordinate legislation (s 3(1)(b) and s 3(2)). The Act therefore acts as a procedural superstructure that can be applied across the statutory instrument bodies produced under a range of enabling Acts, subject to Treasurer declaration and the exemptions in s 6 and Schedule 3.

Regulatory impact statement standardisation: Schedule 2 imposes standards for RIAs that will interact with other statutory or policy RIA requirements in government. The Act requires RIAs to consider competition, quantify costs and benefits where possible, and evaluate alternatives. Where other statutes require different forms of impact assessment, the Act states that its Part 2 requirements are in addition to and do not affect provisions of any other Act (s 10(2)), signalling that this Act supplements rather than displaces other statutory assessment obligations.

Governor’s regulation‑making power: Section 14(1) allows the Governor to make regulations for the purposes of the Act, which creates a potential interaction point where subordinate rules under this Act can be refined by Governor regulations. Section 14(2) allowed the Governor, by order, to amend Schedules 2 and 3, but that power is noted as not exercisable after 31 December 1995 in the Act’s text (s 14(3)). This temporal restriction shapes how the Act’s schedules may have been altered historically and limits future schedule changes under that specific provision.

The Act’s text includes inline amendment notes that identify a series of legislative changes incorporated into the authorised version. The Act itself contains a number of editor’s annotations indicating insertions, substitutions and repeals by later Acts. The relevant amendment markers in the supplied text are as follows.

• Section 3 (Interpretation) was amended by No. 77 of 1994, s 4. The definition block includes the Consumer Price Index, responsible Minister, Secretary, subordinate legislation definition and Subordinate Legislation Committee. Subsections (2) and (3) of s 3 were added by No. 77 of 1994, s 4.

• Section 3A (Guidelines) was inserted by No. 77 of 1994, s 5, giving the Treasurer a power to issue guidelines by Gazette notice, identify content matters in s 3A(2), declare such notices not to be statutory rules (s 3A(3)), and allow rescission and reissue (s 3A(4)).

• Section 4 was amended by No. 77 of 1994, s 6, so that responsible Ministers must ensure compliance with the guidelines “so far as is reasonably practicable” before subordinate legislation is made.

• Section 5 (Regulatory impact statements) underwent multiple amendments: No. 77 of 1994 s 7 amended subsection (1) and inserted subsections (1A) to (1D), (2A), and amended (2) and (3). Those insertions assigned determinative powers to the Secretary regarding whether an RIA is needed and the requirement of a Secretary certificate for RIAs that comply with Schedule 2. The text labels these subsections as added or amended by No. 77 of 1994, s 7.

• Section 6 (Regulatory impact statements not necessary in certain cases) was amended by No. 77 of 1994, s 8 and by No. 20 of 1995, s 3 and Schedule 1. The amended text sets out circumstances where ss 4 and 5 need not be complied with, including Secretary or Treasurer certifications and a Government Business Enterprise pathway under the Government Business Enterprises Act 1995.

• Section 7 (Examination of proposed subordinate legislation) and Section 8 (Requirements before making subordinate legislation) were amended by No. 77 of 1994, s 9. Section 9 (Certain documents to be sent to Subordinate Legislation Committee) was substituted by No. 77 of 1994, s 10.

• Section 11 (Staged repeal) was substituted and amended by No. 77 of 1994, s 11. This substitution introduced the staged repeal timetable, the ten‑year repeal rule for instruments made after commencement, the Governor’s power to postpone repeal by up to 12 months (s 11(5)-(6)), and clarifying rules on amending instruments and their treatment on repeal.

• Section 12 was amended by No. 77 of 1994, s 12 to clarify the Gazette publication date as the date of making for Part 3 repeal purposes.

• Section 14 (Regulations and orders) was amended by No. 77 of 1994, s 13 to add subsection (2) enabling the Governor by order to amend or repeal and substitute Schedules 2 and 3, and a subsection (3) to limit that power after 31 December 1995.

• Sections 15-18 include notes that certain amendments effected by these sections have been incorporated into the authorised versions of other Acts, and s 18 is marked as repealed by No. 77 of 1994, s 14.

• Schedule 1 was amended by No. 77 of 1994, s 15 and Schedule 1 was further amended by No. 86 of 2000 (Schedule 1 amendment applied 01 May 2001). The text of Schedule 1 includes amendment markers and cross‑references to the State Service Act 2000.

• Schedule 2 is marked as amended by No. 77 of 1994, s 16.

• Schedule 3 is marked as amended by No. 77 of 1994, s 17.

• Section 19 (Transitional provision) remains in the Act to take Schedule 1 as the default guidelines until the Treasurer issues guidelines under s 3A.

The supplied text thus shows an important consolidation around No. 77 of 1994, which effected multiple insertions and substitutions across the Act. The text also records later amendments to Schedule 1 by No. 86 of 2000 and to s 6 by No. 20 of 1995. The Act contains a temporal limitation on the Governor’s order power to amend Schedules under s 14(2), which was not exercisable after 31 December 1995 (s 14(3)). Beyond these inline annotations, the Act supplies no further amendment history, commencement dates beyond the order to be proclaimed (s 2), or legislative itinerary. The Act requires the Governor’s proclamation for commencement.

The text of the Act as supplied contains no reported litigation history, no decisions or judicial interpretations, and names no cases. It does not list any court decisions challenging Secretary determinations, Treasurer declarations, the staged repeal regime, procedural compliance obligations, or the Act’s non‑invalidity clause. The legislative text therefore provides no examples of how courts have construed the Act’s key phrases such as “conclusive” in s 5(1C), “so far as is reasonably practicable” in s 4, or the effect of s 10(1) stating procedural failures do not affect validity.

Practical consequences of the absence of litigation in the text: because no cases are cited in the source material, legal practitioners must be cautious in predicting how judicial review or statutory interpretation doctrines might interact with the Act. The Act declares certain internal administrative decisions to be “conclusive” (s 5(1C)) and declares procedural non‑compliance not to affect validity (s 10(1)), but the text does not address whether those statements are intended to oust judicial review or how they interact with broader common law or constitutional rights. In the absence of judicial authorities in the supplied Act, readers should treat those statutory statements as the legislature’s expression of intent and seek out external case law or expert opinion where necessary to understand how courts have treated similar statutory language.

Where an agent or client asks whether a Secretary determination can be judicially reviewed or whether subordinates can be invalidated for failure to follow the Act’s procedural steps, the answer cannot be resolved from the Act’s text alone. The Act itself does not provide internal appeal routes, nor does it set out specific remedies for individuals aggrieved by the Secretary’s determination or the exercise of Treasurer discretion under s 3(2) and s 6(b). Users should therefore consult case law and administrative law principles outside the Act to determine the availability and contours of judicial review or other remedies.

Finally, the Act establishes post‑making parliamentary oversight through the Subordinate Legislation Committee (s 9). That committee process provides a non‑judicial route for scrutiny and political accountability. The supplied Act text contains no account of how that committee has exercised its oversight powers or any litigation arising from committee findings.

Conclusive Secretary determinations: Section 5(1C) declares the Secretary’s determination as to whether an RIA is required to be “conclusive.” Practitioners must note the Act’s internal finality; the Act gives the Secretary a dispositive administrative role on whether an RIA must be prepared. The Act does not itself create an internal appeal procedure against that determination. While the effect of the word “conclusive” on external judicial remedies cannot be determined from the Act alone, within the Act the Secretary’s decision terminates the internal administrative question.

Procedural non‑compliance does not invalidate instruments: Section 10(1) provides that failure to comply with provisions of Part 2 does not affect the validity of subordinate legislation. This means that procedural imperfections under the RIA and guidelines regime cannot, under this Act, be relied upon to invalidate subordinate legislation. For litigation or judicial‑review strategies this constrains an argument based solely on non‑compliance with the Act’s procedural requirements.

Treasurer declarations that are not “statutory rules”: The Treasurer can declare instruments made under an Act to be subordinate legislation (s 3(2)), and the Act declares such notices not to be statutory rules under the Rules Publication Act 1953 (s 3(3)). That can create classification asymmetries: an instrument declared subordinate by Treasurer notice may be subject to this Act’s regime but not fall within statutory rule procedures under the Rules Publication Act. The Act’s different treatment of instruments depending on Treasurer declaration can be a source of procedural complexity and unexpected divergence between instruments.

Exclusion from s 9 obligations: Section 9(1) states that subordinate legislation does not include an instrument referred to in paragraph (b) of the definition of “subordinate legislation” in s 3(1) for the purposes of that section. Practically, that excludes instruments declared by the Treasurer under s 3(2) from the s 9 obligation to send materials to the Subordinate Legislation Committee. This carve‑out may be overlooked and can lead to post‑making compliance gaps if agencies assume s 9 applies universally.

Staged repeal timing is Gazette‑driven: For the purposes of staged repeal, the instrument is taken to have been made on the date it was published or notification published in the Gazette (s 12(1)). That means administrative timing and publishing practice determine the ten‑year clock. Departmental delays in Gazette publication or complications where an instrument is treated as made under another Act can produce unexpected earlier or later expiry dates (s 12(2)). Practitioners must track Gazette publication dates carefully.

Repeal of amending instruments: Section 11(4) provides that where subordinate legislation is repealed under s 11, any subordinate legislation which amends that instrument and any provision in subordinate legislation that amends it is also repealed. That can create cascading consequences: an apparently innocuous amending instrument can be unintentionally swept away when the principal instrument reaches its review/repeal date. Departments must track chains of dependency.

Exemptions and narrow GBE exemption: The Government Business Enterprise exemption in s 6(c) applies only where the proposed subordinate legislation exclusively concerns setting fees, charges or tariffs or other commercial operations of a GBE and does not concern public regulatory or administrative functions, and where the Secretary is satisfied compliance would impede the GBE’s commercial operations (s 6(c)(i)-(iii)). This is a narrow carve‑out and requires Secretary certification. Practitioners should not assume broad commercial exemptions without satisfying the statutory conditions.

New guidelines and default Schedule 1: Until the Treasurer issues guidelines under s 3A, Schedule 1 is taken to be the guidelines (s 19). That means procedures in Schedule 1 remain operative and must be followed unless and until replaced by Gazette notice. Schedule 1 itself has been amended by later Acts (notes indicate No. 86 of 2000), so careful attention to the version in force is necessary.

Publication burden and cost: Where an RIA is required, the requirement to publish in the Gazette and in at least three daily newspapers circulated generally throughout Tasmania for not less than 21 days (s 5(2)(a)) can be a meaningful cost in time and resources, particularly for frequent or minor subordinate instruments. The Act does not provide alternative, lower‑cost notification methods for low‑impact instruments where the Secretary nevertheless determines an RIA is required.

Governor’s limited order power: The Governor may postpone a scheduled repeal date by up to 12 months by order under s 11(5), but the order must be made before the date the subordinate legislation would otherwise be repealed (s 11(6)). Reliance on this postponement as a late fix is therefore constrained; departments must plan ahead to secure postponement.

Regulatory potential without penalties: The Act allows the Governor to make regulations for its purposes (s 14(1)), which could include enforcement or compliance mechanisms, but none are in the Act’s text. Departments should be aware that future regulations could alter the compliance landscape, but the Act as supplied does not itself attach penalties to procedural breaches.

Overlap with other Acts: Section 10(2) clarifies Part 2 is in addition to and does not affect provisions of any other Act. Practitioners must therefore reconcile this Act’s requirements with other statutory processes for subordinate legislation under specific enabling Acts and with any separate RIA or consultation mandates elsewhere.

Stepwise operational checklist: The Act sets out a sequence of steps that a responsible Minister and the administering department must follow. The following is a practical compliance checklist grounded in the Act’s text:

1. Determine whether the instrument is “subordinate legislation” as defined in s 3(1). If the instrument is an instrument of legislative character made under an Act and the Treasurer has declared it to be subordinate legislation under s 3(2), treat it as subordinate legislation for this Act’s purposes. Note that Treasurer declarations are not statutory rules under the Rules Publication Act 1953 (s 3(3)).

2. Check Schedule 3 exemptions and s 6 pathways. Before proceeding, determine whether the proposed subordinate legislation falls within Part 1 or Part 2 categories of Schedule 3 (e.g. corrections, transitional matters, adoption of standards with prior cost assessment, certain fee adjustments limited by CPI). If so, obtain a Secretary certificate under s 6(a) that compliance with ss 4 and 5 is unnecessary. Alternatively, seek a Treasurer certificate under s 6(b) in the special‑circumstances public interest route where appropriate, or apply the narrow GBE exemption under s 6(c) if a Government Business Enterprise satisfies the statutory conditions.

3. If no exemption applies, obtain the Secretary’s determination under s 5(1A). The Secretary must decide whether any part of the proposed subordinate legislation would impose a “significant burden, cost or disadvantage” on any sector of the public and whether an RIA is required. That determination is conclusive (s 5(1C)).

4. If an RIA is required, prepare a regulatory impact statement that complies with Schedule 2. Schedule 2 requires a statement of objectives, identification of alternatives, assessment and quantification of costs and benefits where possible, competition impact assessment (including whether a restriction on competition is necessary and proportionate), identification of the option with greatest net benefit, and a consultation programme (Schedule 2 item 1). Costs and benefits must, where possible, be quantified and presented to enable comparison (Schedule 2 item 2).

5. Before undertaking the consultation steps in s 5(2), obtain the Secretary’s certificate under s 5(1D) certifying the RIA complies with Schedule 2 and that the proposed consultation is appropriate. The responsible Minister must not take the consultation action in s 5(2) before obtaining that certificate (s 5(2A)).

6. Carry out the consultation and publication steps mandated by s 5(2) once the Secretary’s certificate is received. Publish a notice in the Gazette and in at least three daily newspapers circulated generally throughout Tasmania that states the objects, where to obtain the RIA and proposed subordinate legislation, and invites comments and submissions for not less than 21 days (s 5(2)(a)(i)-(iv)). Consult with appropriate representatives of consumers, the public, interest groups and affected sectors and consider all comments and submissions (s 5(2)(b)-(c)). Make the extent of consultation commensurate with the likely impact (s 5(3)).

7. Draft the proposed subordinate legislation in consultation with Chief Parliamentary Counsel. Submit the proposed subordinate legislation to the Chief Parliamentary Counsel for advice as to whether it appears within the powers of the relevant Act, whether it appears to have retrospective effect or impose penalties without authority, whether it sub‑delegates powers, whether it is within the Act’s objectives and whether it is expressed clearly (s 7).

8. Compile the submission package for the Governor or for the formal making process. When submitting for making by the Governor, or for approval/confirmation/consent, include the Chief Parliamentary Counsel advice and the appropriate certificate(s): either the Secretary certificate under s 6, the responsible Minister’s certificate that s 4 has been complied with (where no RIA was necessary), or the Secretary certificate under s 5(1D) where an RIA was necessary (s 8(a)-(c)).

9. After the subordinate legislation is made and published in the Gazette, ensure timely post‑making reporting to the Subordinate Legislation Committee. Within seven days of Gazette publication (or within seven days of making where Gazette publication is not required), send to the Subordinate Legislation Committee the Chief Parliamentary Counsel advice and the certificate used under s 8. If an RIA was prepared, include a copy of the RIA and copies of the comments and submissions, if any (s 9(1A)-(2)). If the Committee is not in office at the time, send materials to the nominated person for the Committee’s attention after appointment (s 13).

10. Track staged repeal dates and plan renewals or remaking. For subordinate legislation made on or after the Act’s commencement, schedule repeal will occur on the tenth anniversary of the date it was made (s 11(2)). For older instruments, refer to the cohort repeal dates in s 11(1). Use Gazette publication dates (s 12(1)) to determine the operative date for repeal. If necessary, seek a Governor’s order to postpone the date of repeal by no more than 12 months, but note such an order must be made before the scheduled repeal date (s 11(5)-(6)).

11. Maintain records and compliance evidence. Keep documentary evidence of Secretary determinations, RIA preparation and content (Schedule 2), consultation notices and submissions, Chief Parliamentary Counsel advice, and certificates submitted with the instrument. These records are necessary to satisfy the post‑making reporting obligation under s 9 and to demonstrate that the Minister and department followed the Act’s processes insofar as “reasonably practicable” compliance can be shown under s 4.

Practical tips and risk controls:

• Engage early with the Secretary and Chief Parliamentary Counsel. Because the Secretary’s RIA determination is conclusive and Counsel advice must accompany the instrument for making, early engagement avoids late‑stage surprises and enables required certificates to be obtained in a timely fashion.

• Treat Gazette publication timing as a project milestone. The staged repeal clock and the date‑of‑making determination depend on Gazette publication (s 12). Plan drafting and approval timetables accordingly.

• Budget for publication costs and consultation time. Where an RIA is required, expect to incur the cost of Gazette notices and multiple newspaper advertisements and to allow at least 21 days for submissions (s 5(2)(a)(iv)).

• Check Schedule 3 carefully for exemptions that may apply, but do not assume broad coverage. Certain exemptions (e.g. CPI‑linked fees) have precise quantitative limits and require testing against the Consumer Price Index as defined in s 3(1).

• Maintain dependency maps for subordinate instruments. Because the repeal of a principal subordinate instrument also repeals any instruments that amend it (s 11(4)), departments should maintain clear records of amending instruments and their expiry dates to avoid inadvertent loss of regulatory architecture.

• Prepare RIAs to Schedule 2 standards. Even where an RIA is borderline, prepare documentation that quantifies costs and benefits where possible and that assesses competition effects; Schedule 2 requires this and the Secretary must certify compliance (Schedule 2 items 1-2; s 5(1D)).

Following these steps will align departmental practice with the Act’s procedural architecture and reduce the risk of administrative omission.