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Requirements for updating the Subordinate Legislation Regulations

The process for making changes to the Subordinate Legislation (Legislative Instruments) Regulations 2011.

What are the Regulations for?

The Subordinate Legislation (Legislative Instruments) Regulations 2011 describe the characterisation of instruments for the purposes of the Subordinate Legislation Act 1994 (SL Act).

The Regulations include schedules which prescribe instruments that:

  • are not legislative instruments (schedule 1)
  • are legislative instruments (schedule 2)
  • are exempt legislative instruments (schedule 3)

The category an instrument belongs to affects what processes the instrument needs to follow.

The SL Act describes requirements for the making of legislative instruments, including:

  • the preparation of a Regulatory Impact Statement
  • publication of a notice in the Victoria Government Gazette of the making of an instrument
  • tabling in Parliament
  • review by the Scrutiny of Acts and Regulations Committee

These requirements don't apply to purely administrative instruments.

Who administers the Regulations

The Office of General Counsel in the Department of Premier and Cabinet administers the Regulations.

The Office of General Counsel works with Parliamentary Counsel to assess change requests. We provide feedback on all requests.

We administer the following changes to the Regulations:

  • adding a new instrument to a schedule
  • moving an instrument from one schedule to another
  • removing an instrument from a schedule
  • amending the description of an instrument in a schedule

All change requests and supporting information should be emailed to GeneralOrdersLegislativeInstruments@dpc.vic.gov.au

Requesting changes to the Regulations

Provide the following information:

  1. The title of the instrument (including the clause number)
  2. Whether you want the instrument removed or amended
  3. The reason for the request

Requesting additions to the Regulations

Provide the following information:

  1. The title of the instrument
  2. The principal Act and the provision under which it is made
  3. If relevant, in which schedule you want the the instrument included
  4. A copy of the instrument and a summary about the effect of the instrument
  5. Evidence (such as legal advice) to support:
    a. the inclusion of the instrument in the Regulations and identifying, if relevant, which provisions of the SL Act should not apply to the instrument
    b. the characterisation of the instrument as either legislative or administrative in character.

Administrative additions to Schedule 1

If your addition is on the basis that it is administrative in character but there is room for doubt, you should provide evidence (such as legal advice) to support this position of doubt and characterisation.

Addition of an exempt legislative instrument in Schedule 3

First consider whether the instrument is in fact a legislative instrument captured by the SL Act. For example, is it an instrument of purely administrative character, and so not captured in the definition of ‘legislative instrument’ in section 3 of the SL Act?

Note that section 3(2) of the SL Act lists several types of instruments that fall into this category.

Instruments specified in schedule 3 are exempt from the operation of Part 2A, Part 5A and sections 16B, 16C, 16E and 16F of the SL Act. Such instruments need to comply with Government Gazette publication provisions in the SL Act.

Addition of a legislative instrument that is exempt more broadly

First consider whether the instrument is in fact a legislative instrument captured by the SL Act.

If the legislative instrument will be exempt from the Government Gazette publication provisions in the SL Act, provide evidence (such as legal advice) to support this.

For further guidance, please see:

When we update the Regulations

OGC reviews the Regulations annually. We start in the second quarter of the year and finish by the end of the year.

We consider public sector bodies’ requests as part of this annual cycle. Hence there's usually a delay between receipt of requests and updating the Regulations.

If your request is urgent, please include the reasons to support the urgency when you make your request.

Reviewed 22 July 2019

Contact us

Office of General Counsel Department of Premier and Cabinet

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