NSW Statutory Instruments / Rules

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Scruff

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25 July 2018
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Hi guys - been a while.

Wondering if anyone can tell me exactly what the difference is between a statutory instrument and any other instrument created under NSW law.

For example, a piece of legislation allows two instruments to be made - one statutory and the other not.

Am I correct that the statutory instrument has "power of law" (is that the correct term?) in that it can create it's own provisions that override the legislation; and

the "standard instrument" (does this have a name?) can make rules, but the rules are bound by the legislation and other laws - ie; it must comply with existing provisions in the law and can not override or be in any way inconsistent with them.

Is that correct and is there anything else I should know?

Thanks guys.
 

Docupedia

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7 October 2020
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Statutory instruments have the power of law but cannot generally override their governing Act. There have been some isolated incidences where this was allowed (see last paragraph in first section of this page - Delegated legislation – Parliament of Australia), although I don't know if this has been the case in NSW.

Statutory instruments comprise regulations, by-laws, rules, and the like. The NSW Subordinate Legislation Act requires all statutory rules (i.e. statutory instruments) to comply with certain guidelines (Schedule 1 of the Act) unless exempted under Schedule 4 of the Act or which only deals with savings/transitional matters. Schedule 1 provides, for example:
- That its objectives "accord with the objectives, principles, spirit and intent of the enabling Act" (2(b), third dot point); and
- It shouldn't impinge on another area, and that consultation should take place to reconcile differences and avoid overlap/duplication (2(e)).

From what I can see on a quick check, the other option is an environment planning instrument which is "treated as being a distinct category of legislation separate from subordinate legislation" (Environmental planning instruments - NSW legislation).
 

Tim W

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Ask your question in terms of the instruments you're actually asking about?
 

Scruff

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Hey Tim - been a long time. It's the guidelines under s139 of the NSW Residential Tenancy Act. It's not a statutory instrument, so I'm trying to determine exactly what power it has to override the Act, if any. It's my understanding that it doesn't have any such power and must comply with the existing provisions in the Act.
 

Scruff

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I looked at the Subordinate Legislation Act, but that appears to only relate to statutory rules. The guideline in question has never been published in the gazette or on the legislation website - it's only published on a departmental website (FACS). Therefore according to the Interpretation Act, I don't see how it can be a statutory rule. Furthermore, I don't believe it is the intention of the parliament for the document to have that power, otherwise they would have made it a statutory instrument way back in 2004 or 2005 when they amended the Act that first introduced the guideline.

Another thing is that a version of this guideline from 2006 stated that it would be published in the gazette. It never was, and all subsequent revisions have had that text removed. This is further indication of the parliament's intention.
 

Tim W

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Some of it is contractual. Depends which one.
 

Scruff

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Um, did you post that in the right thread Tim? I don't understand that response.
 

Tim W

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Point me to the actual guideline you're talking about, and it may become clearer.
 

Scruff

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Thanks Tim.

Should be the first and last documents on this page: Results
And then there's this: Water Charging Policy

I can't make heads or tails of how any minister could approve a "policy" as a "guideline". None of this makes any sense.

You also need to look at s39, s137 and s139 of the Residential Tenancies Act. I can't figure out if any of s39 still applies to social housing or not. S137 states "... to the extent of the inconsistency", but it seems that everyone is under the impression that s39 doesn't apply at all. I'm trying to figure out how, when the only inconsistency I can see is between s139(1) and s39(1)(a), ie; all social housing tenants (s139) vs tenants in properties that are separately metered (s39).
 

Docupedia

Well-Known Member
7 October 2020
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The guidelines won't have the power to override the Act as such. Section 139 sets out what the guidelines should cover (and a standard 'anything else'...). Add to that that section 32 of the Interpretation Act provides that "an instrument shall be construed as operating to the full extent of, but so as not to exceed, the power conferred by the Act under which it is made."

I think policy is just a euphemism - what they really are are guidelines, as stated in the Act, and the Minister has been given power by the Act to make them.

What's essentially being said here is:
- s39: 'Tenants in residential premises have to pay for water. However, they only have to pay for water if the situations in s39(1)(a), (b), and (c) are all satisfied. If any of (a), (b), or (c) are missing - they don't have to pay.'
- s139 (factoring in s137): 'Tenants in public housing have to pay for their water. It doesn't matter what s39 says when it comes to public housing tenants - they're a special case because its public housing and we the government say so. So we don't need to comply with s39(1)(a),(b), and (c). The charges will be worked out under the Minister's guidelines. '

The inconsistency is whether or not there are conditions to be satisfied before payment is due: i.e. 'Tenants have to pay only if conditions are satisfied' (s39) vs 'Tenants have to pay with no conditions to be satisfied' (s139).