6.1 What is subordinate legislation?

Generally
Under the general law, the term subordinate legislation is often used
to refer to a legislative instrument made by an entity under a power
delegated to the entity by the Parliament.
It can be necessary for legislative power to be delegated for any of the
following reasons:

to save pressure on parliamentary time

when the legislation is too technical or detailed to be suitable for
parliamentary consideration
to deal with rapidly changing or uncertain situations
to allow for swift action in the case of an emergency.
Particular meaning under the Statutory Instruments Act 1992
This handbook, however, uses the term subordinate legislation in a
more particular sense, in accordance with the framework established
by the Statutory Instruments Act 1992.
Under the Statutory Instruments Act 1992, subordinate legislation
refers to a defined subset of statutory instruments.
A statutory instrument is an instrument made directly or indirectly
under an Act by an entity other than the Parliament. Subordinate
legislation refers to a statutory instrument that is classified as
subordinate legislation under that Act. (See sections 6 to 9 of that Act
for more details).
There are many types of subordinate legislation. Some of the most
common are:

regulations made by the Governor in Council

proclamations that provide for the commencement of provisions of an
Act
local laws

rules
by-laws.
Sometimes, whether a statutory instrument is classified as subordinate
legislation depends on the provisions of the empowering Act. For
example, an empowering Act may provide for a statutory instrument to
be made by an entity (for example, a board), but require the instrument
to be approved by the Governor in Council. Under the Statutory
Instruments Act 1992, the instrument is subordinate legislation. Rules
and by-laws can be instruments of this nature.
On the other hand, an empowering Act may provide for a statutory
instrument to be made by an entity (for example the Minister or the
chief executive) with no requirement that it be approved by the
Governor in Council. However, the empowering Act may declare the
instrument to be subordinate legislation. If so, this instrument is also
subordinate legislation under theStatutory Instruments Act 1992.
Standards and notices can be instruments of this nature.
Significance of status as subordinate legislation
The significance of whether a statutory instrument is subordinate
legislation lies in the fact that subordinate legislation:

must be drafted by the OQPC, unless it is exempt subordinate legislation

(see Chapter 6.2)
is subject to the notification, tabling and disallowance provisions of
the Statutory Instruments Act 1992 (see Chapter 6.13)
is subject to scrutiny by the portfolio committee (see Chapter 6.14).

Purpose and use of subordinate legislation

March 1998
51.04 Practical application to the parent Act
Subordinate legislation takes effect and has authority as if it were part of
the enabling (parent) Act, ie it has statutory force. It is a means by which
experts in the subject covered by an Act can formulate an authoritative
set of measures which allow for practical application of the parent Act.
The Insolvency Rules Committee, established by section 10 of the
Insolvency Act 1976 and continued by section 413 of the Insolvency Act
1986, is an example of a body of expert knowledge which meets to
consider proposals for insolvency rules which have useful, practical
effect and implement the provisions of the Insolvency Act 1986. This is
done without the need for Parliament itself to consider the detail of a
technical matter on which it may not have any specific expertise
although either House can pray against the rules which have been
made (see paragraphs 51.13-51.16).
51.05 Updating/amending legislation
Parliament cannot foresee every eventuality which needs to be covered
by a piece of legislation when it is originally enacted. Provided that the
authority conferred by the parent Act is sufficient, subordinate
legislation can deal with problems, loopholes or necessity for updated
information as and when they arise by addressing them in rules,
regulations and orders (see 51.32 for transitional provisions). Generally
speaking, it is possible to make subordinate legislation more quickly
than to enact primary legislation.
51.06 Amendments
(amended August 2012)
Subordinate legislation itself may be withdrawn or amended if it proves
impracticable or circumstances change. So the Insolvency Rules 1986
have been amended, and each amendment is a new piece of subordinate

legislation described as the Insolvency (Amendment) Rules 19XX or

20XX. For example, the Insolvency (Amendment) Rules 1987 amended
rule 4.8 (6) of the 1986 Rules concerning service of a petition to wind up
a company. The statement the petition may be served in such other
manner as the court may direct became as the court may approve or
direct. From time to time, the original legislation may be consolidated
together with any amendments to be produced as a piece of replacement
legislation. The Companies Act 1985 (now largely replaced by the
Companies Act 2006) was an example of consolidated primary
legislation. The Insolvency Regulations 1994 was an example of
consolidated subordinate legislation, the regulations have since been
amended.
51.07 Avoids duplication
A statutory instrument may be made under several powers rather than
several statutory instruments having to be made under the individual
powers. For example, the Insolvent Partnerships Order 1994 is made
under powers in the Insolvency Act 1986 and those in the Company
Directors Disqualification Act 1986 and these powers are cited in the
introduction to the instrument. It is not necessary to indicate in the
instrument the enabling power under which each of the provisions is
made but it is necessary for the powers, either alone or taken together, to
be sufficient to enable such provision to be made.
51.08 Provisions in Insolvency Act 1986
For the purposes of the Insolvency Act 1986, the power to make
subordinate legislation is outlined in a whole part, Part XV, sections 411
to 422 and incorporating schedules 8 and 9. The Part confers power to
make rules and orders including Fees orders and orders relating to
specific areas such as the Insolvent Partnerships Order and the
Administration of Insolvent Estates of Deceased Persons Order.
Schedules 8 and 9 give examples of provisions capable of inclusion in
company and bankruptcy insolvency rules but are not exhaustive lists of
what may be covered in such rules. For specific application to the
insolvency legislation see 51.18-51.26.