1.8 It would not normally be appropriate for consultation outside government to occur for proposed legislation:
- (a) which would alter fees or benefits only in accordance with the Budget;
- (b) which would contain only minor machinery provisions that would not fundamentally alter existing legislative arrangements; or
- (c) for which consultation would give a person or organisation consulted an advantage over others not consulted.
1.9 Consultation will extend the lead time required for preparation of a bill for introduction. This must be taken into account for planning purposes to ensure that consultation does not unduly reduce the time allowed for drafting a bill.
PRIMARY OR SUBORDINATE LEGISLATION?
1.10 While it is not possible or desirable to provide a prescriptive list of matters suitable for inclusion in primary legislation and matters suitable for inclusion in subordinate legislation, the following are examples of matters generally implemented only through Acts of Parliament:
- (a) appropriations of money;
- (b) significant questions of policy including significant new policy or fundamental changes to existing policy;
- (c) rules which have a significant impact on human rights and personal liberties;
- (d) provisions imposing obligations on individuals or organisations to undertake certain activities (e.g. to provide information or submit documentation, noting that the detail of the information or documentation required may be included in subordinate legislation) or desist from activities :(e.g. to prohibit an activity and impose penalties or sanctions for engaging in an activity);
- (e) provisions creating offences or civil penalties which impose significant criminal penalties (imprisonment or fines equal to more than 50 penalty units for individuals or more than 250 penalty units for corporations)[1];
- (f) provisions imposing administrative penalties for regulatory offences :(administrative penalties are imposed automatically by force of law instead of being imposed by a court);
- (g) provisions imposing taxes or levies;
- (h) provisions imposing high or substantial fees and charges;
- (i) provisions authorising the borrowing of funds;
- (j) procedural matters that go to the essence of the legislative scheme;
- (k) provisions creating statutory entities (noting that some details of the operations of a statutory entity would be appropriately dealt with in subordinate legislation); and
- (l) amendments to Acts of Parliament (noting that the continued inclusion of a measure in an Act needs to be examined against these criteria when an amendment is required).
- ↑ A penalty unit is defined in section 4AA of the Crimes Act 1914; at January 2017, a penalty unit was equivalent to $180.
