The Committee is responsible for examining regulations and legislative instruments to ensure that they do not exceed the powers conferred by an Act and do not unduly trespass on rights and freedoms.

The Committee checks regulations against the heads of review contained in section 21 of the Subordinate Legislation Act 1994 (the Act) and legislative instruments against those contained in section 25A of the Act.

While the Committee focuses on the principles contained in sections 21 and 25A, it also ensures that there has been compliance with the practical or procedural requirements of the Act.

Substantial contravention of the practical requirements of the Subordinate Legislation Act 1994 in fact constitutes a head of review in sections 21 or 25A of the Act. Where a regulation or legislative instrument do not comply with the procedures or the principles in sections 21 and 25A of the Act, the Committee may report to Parliament and recommend that the regulation or legislative instrument be disallowed in whole or part.

The Charter of Human Rights and Responsibilities Act 2006 provides that the Committee must also review all regulations and legislative instruments and report to Parliament if it considers the regulations or legislative instrument to be incompatible with human rights.

Senior Research Officer
Phone: 03 8682 2836
Email: sarc@parliament.vic.gov.au

Further information

The scrutiny of statutory rules and legislative instruments is undertaken by the Regulation Review Subcommittee of the Scrutiny of Acts and Regulations Committee. The Committee’s powers are found in the Subordinate Legislation Act 1994.

21 Review of statutory rules by the Scrutiny Committee

(1) The Scrutiny Committee may report to each House of the Parliament if the Scrutiny Committee considers that any statutory rule laid before Parliament—

(a) does not appear to be within the powers conferred by the authorising Act;
(b) without clear and express authority being conferred by the authorising Act—

(i) has a retrospective effect; or
(ii) imposes any tax, fee, fine, imprisonment or other penalty; or
(iii) purports to shift the legal burden of proof to a person accused of an offence; or
(iv) provides for the sub-delegation of powers delegated by the authorising Act;

(c) appears to be inconsistent with the general objectives of the authorising Act;
(d) makes unusual or unexpected use of the powers conferred by the authorising Act having regard to the general objectives of that Act;
(e) contains any matter or embodies any principles which should properly be dealt with by an Act and not by subordinate legislation;
(f) unduly trespasses on rights and liberties of the person previously established by law;
(g) makes rights and liberties of the person unduly dependent upon administrative and not upon judicial decisions;
(ga) unduly requires or authorises acts or practices that may have an adverse effect on personal privacy within the meaning of the Privacy and Data Protection Act 2014;
(gb) unduly requires or authorises acts or practices that may have an adverse effect on privacy of health information within the meaning of the Health Records Act 2001;
(h) is inconsistent with principles of justice and fairness;
(ha) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities;
(i) requires explanation as to its form or intention;
(j) has been prepared in contravention of any of the provisions of this Act or of the guidelines with respect to the statutory rule and the contravention is of a substantial or material nature;
(k) is likely to result in administration and compliance costs which outweigh the likely benefits sought to be achieved by the statutory rule.

(2) A report of the Scrutiny Committee under this section may contain any recommendations that the Scrutiny Committee considers appropriate, including a recommendation that a statutory rule should be—

(a) disallowed in whole or in part; or
(b) amended as suggested in the report.

25A Review of legislative instruments by the Scrutiny Committee

(1) The Scrutiny Committee may report to each House of the Parliament if the Scrutiny Committee considers that any legislative instrument laid before Parliament—

(a) does not appear to be within the powers conferred by the authorising Act or the statutory rule under which it is made;
(b) without clear and express authority being conferred by the authorising Act or the statutory rule under which it is made—

(i) has a retrospective effect; or
(ii) imposes any tax, fee, fine, imprisonment or other penalty; or
(iii) purports to shift the legal burden of proof to a person accused of an offence; or
(iv) provides for the subdelegation of powers delegated by the authorising Act or the statutory rule under which it is made;

(c) is incompatible with the human rights set out in the Charter of Human Rights and Responsibilities;
(d) has been prepared in contravention of any of the provisions of this Act or of the guidelines with respect to legislative instruments and the contravention is of a substantial or material nature.

(2) A report of the Scrutiny Committee under this section may contain any recommendations that the Scrutiny Committee considers appropriate, including a recommendation that a legislative instrument should be—

(a) disallowed in whole or in part; or
(b) amended as suggested in the report.

(Extracted from the Subordinate Legislation Act 1994, No. 104 of 1994, version incorporating amendments as at 6 April 2020)