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About ACT legislation

General

The laws in force in the ACT consist of the written law and various unwritten laws known as the principles and rules of common law and equity. (The Commonwealth Constitution and various Commonwealth Acts, regulations and instruments also apply in the ACT, but this site is concerned only with laws made under authority given by the Legislative Assembly under the Self-Government Act.) The primary source of written law in the ACT is the Acts made by the Legislative Assembly. But because the Legislative Assembly does not necessarily have sufficient time to develop and debate all aspects of a proposed legislative scheme, Acts will usually contain provisions delegating the power to make the regulations and other instruments that may be necessary to give effect to the details of the legislative scheme. The power to make regulations is delegated to the Executive (in effect, the elected government) but power to make other instruments can be delegated to a variety of other persons (eg the responsible Minister or chief executive or the person appointed to a particular position) or entities (eg the Road Transport Authority). Sometimes instruments themselves authorise the making of other instruments.

Legislation on the register-Acts and legislative instruments

To enable ACT legislation to be accessible to the community, the Legislation Act 2001 provides for the text of Acts and certain other instruments (defined in the Act as ‘legislative instruments’) to be entered in the ACT legislation register established by section 18 of the Act. The Act also provides that, when new Acts and legislative instruments are made, the fact of making is to be notified by the entering of a notice in the register. If a legislative instrument is not notified on the register, it is not enforceable (see Legislation Act 2001, section 62). The term ‘legislative instrument’ is a convenient umbrella term used by the Act to describe all the different types of instruments required to be notified on the register. It covers subordinate laws, disallowable instruments, notifiable instruments and commencement notices. The following explains what each of these is.

Subordinate laws

A subordinate law is a regulation, rule or by-law (see Legislation Act 2001, section 8). Regulations are the most common type of subordinate law in the ACT. If a subordinate law is primarily concerned with matters of procedure (especially of a court or tribunal), it will usually be designated a rule (the best example being rules of court). A subordinate law that operates in a particular geographical area (eg a nature reserve) or applies in relation to a particular body will often be designated as by-laws. These are rare in the ACT. However, that there is no legal requirement that regulations, rules and by-laws have the subject matter indicated. These are matters of usage relating to the way that subordinate law-making powers are commonly expressed. It is often the case, for example, that regulations will deal with matters of procedure. The regulatory impact statement requirements and the disallowance provisions mentioned below apply to subordinate laws.

Disallowable instruments

The following 2 types of instruments are disallowable instruments for the Act (see Legislation Act 2001, section 9)-

• a statutory instrument that is declared to be a disallowable instrument by an Act, subordinate law or other disallowable instrument . Generally this ‘declaration’ is included in the provision that authorises the making of the instrument.
• a determination of fees or charges by a Minister under an Act or subordinate law.

The regulatory impact statement requirements and the disallowance provisions mentioned below also apply to disallowable instruments.

Notifiable instruments

A notifiable instrument is a statutory instrument that is declared to be a notifiable instrument by an Act, subordinate law or other disallowable instrument (see Legislation Act 2001, section 10). As with disallowable instruments, this ‘declaration’ is generally included in the provision that authorises the making of the instrument. A common example of a notifiable instrument is an approved form for applying for a licence or permit. In other words, a person applying for the licence or permit must follow the form of wording, and provide the information, required by the approved form. The Legislation Act also includes provisions under which the text of a law or instrument that is applied adopted or incorporated by a statutory instrument is taken to be a notifiable instrument (see section 47).

Commencement notices

A commencement notice is a notice that fixes or otherwise determines the commencement of an Act, subordinate law, disallowable instrument or notifiable instrument (see Legislation Act 2001, section 11).

Regulatory impact statements and disallowance

Instruments other than Acts are not necessarily made as a result of any public process of debate. However they may have a significant impact on the community. Because of this, the Act provides for a system by which some instruments (subordinate laws and disallowable instruments) can be assessed and their provisions scrutinised by members of the Assembly and citizens particularly affected by them. It requires—

• a regulatory impact statement to be prepared by the responsible Minister if a subordinate law would impose appreciable costs on the community (see Legislation Act 2001, part 5.2); and
• the instrument to be presented to the Legislative Assembly within 6 days after being notified (on the legislation register). The Assembly then has a certain number of days within which it can disallow or amend the instrument.

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