I am writing to advise of changes to procedures governing the making of subordinate legislation, following the report of the Regulation Review Committee in November 1993 on future directions for regulatory review in New South Wales.

After careful consideration of the Committee's report, I have decided that the majority of the Committee's recommendations should be implemented as follows:

* Restriction of formal impact assessment to the most significant regulations

The attached regulation has been made to give effect to this recommendation.

Under section 5 of the Subordinate Legislation Act 1989, before a principal statutory rule is made, the responsible Minister must ensure that a number of requirements are complied with, including that a regulatory impact statement is prepared and made publicly available.

The regulation amends Schedule 3 to the Act which sets out the matters for which a regulatory impact statement is unnecessary. However, under the Act the responsible Minister must first certify that the proposed statutory rule comes within Schedule 3, and the Minister only give that certificate on the basis of advice of the Attorney General or the Parliamentary Counsel. In summary, the attached regulation has the effect that the requirements of section 5 (including the requirement for preparation of an RIS) do not have to be met where the responsible Minister certifies in writing that, on the advice of the Attorney General or the Parliamentary Counsel, the proposed statutory rule comprises or relates to matters that are not likely to impose an appreciable burden, cost or disadvantage on any sector of the public, having regard to any assessment of those issues by the relevant agency after consideration of the guidelines set out in Schedule 1 to the Act.

The Parliamentary Counsel (rather than the Attorney General) will in practice provide advice on the likely impact of the proposed regulation or other statutory rule if exemption from the requirements of section 5 is sought. It will be necessary for agencies to present a cogent written case to the Parliamentary

Counsel for exemption from the formal impact assessment requirements of section 5.

The Regulation Review Committee is concerned to ensure that it is provided with a copy of any Ministerial certificate given under the new arrangements, and that it is properly informed of the merits of the case for exemption. I have undertaken to put in place appropriate administrative arrangements to ensure that a copy of any Ministerial certificate is forwarded to the Committee within 14 days of publication of the relevant statutory rule in the Gazette, and that the Committee is provided with the reasons for exemption, if it requests such information. I would therefore ask that you take steps to ensure that the Committee is assisted in this manner.

* Regulatory impact statements to accompany instructions to the Parliamentary Counsel

Drafting instructions to the Parliamentary Counsel should be accompanied by a copy of any relevant regulatory impact statement that is available. It may be that when initial instructions are given to the Parliamentary Counsel, a regulatory impact statement has not yet been completed. However, when an RIS does become available, a copy should be forwarded to the Parliamentary Counsel. This should assist any redrafting of the regulation concerned when final instructions are given to the Parliamentary Counsel following the public consultation process.

* Annual reports to detail any departures from the Subordinate Legislation Act

The Committee is concerned about uneven adherence by agencies to the requirements of the Subordinate Legislation Act.

I would, therefore, ask you to ensure that agencies within your administration that have responsibility for regulations be reminded of their obligations under the Act. Any departures from the Act are in future to be set out in the annual report for the agency responsible.

In brief, the main obligations under the Subordinate Legislation Act are as follows:

* before any statutory rule is made, the responsible Minister is required to ensure that the guidelines set out in Schedule 1 to the Act are complied with, as far as is reasonably practicable (the guidelines, for example, require the objectives of the proposed statutory rule to be clearly formulated, and alternative options considered) (section 4);

* when a statutory rule is submitted to the Governor for making, it must be accompanied by the following:

- a certificate from the responsible Minister stating that the provisions of the Act relating to the proposed statutory rule have been complied with;

- an opinion from the Parliamentary Counsel that the statutory rule may legally be made (section 7.).

In addition, where the proposed statutory rule is a principal statutory rule (essentially a rule that is not merely amending or repealing another statutory rule), a regulatory impact statement must be prepared (section 5). Other requirements that must be complied with for principal statutory rules include:

* publication of notice of the proposed statutory rule;

* consultation with appropriate representatives of sectors of the community likely to be affected by the proposed statutory rule;

* consideration of all submissions and comments received;

* forwarding copies of the regulatory impact statement, and submissions and comments received, to the Regulation Review Committee, within 14 days of the rule being made (section 5).

There are exceptions to the requirements outlined above. These are set out in section 6 of the Act. For example, where the subject matter of a proposed rule falls within a class described in Schedule 3 to the Act the responsible Minister may give a certificate to this effect. Where a certificate is issued, the requirements of section 5 do not have to be complied with. It should be noted that a copy of such a certificate must accompany the statutory rule when it is submitted to the Governor, in addition to the other material described above that must accompany every statutory rule.

I would appreciate it if you would bring this memorandum to the attention of all agencies associated with your administration.

John Fahey,
Premier.

This memorandum has been superseded by M2008-01 and M2008-05.

SUBORDINATE LEGISLATION ACT 1989—REGULATION

(Relating to matters not requiring regulatory impact statements)

HIS Excellency the Governor, with the advice of the Executive Council, after consultation with the Regulation Review Committee, and in pursuance of the Subordinate Legislation Act 1989, has been pleased to make the Regulation set forth hereunder

JOHN FAHEY,
Premier.

Commencement

1. This Regulation commences on 1 September 1994.

Amendment

2. Schedule 3 to the Subordinate Legislation Act 1989 is amended by inserting after item 5 the following item:

6. Matters that are not likely to impose an appreciable burden, cost or disadvantage on any sector of the public, having regard to any assessment of those issues by the relevant agency after the consideration and application of relevant guidelines set out in Schedule 1 to this Act

EXPLANATORY NOTE

The object of this Regulation is to remove the requirement that a regulatory impact statement be made before the making of statutory rules relating to matters that are not likely to impose an appreciable burden, cost or disadvantage on any sector of the public. This result achieved by including those matters in the matters listed in Schedule 3 to the Subordinate Legislation Act 1989 as not requiring regulatory impact statements.

This Regulation is made under section 14 of the Subordinate Legislation Act 1989.