Legislative compliance
Direction and guidance on managing legislative compliance to ensure the department meets its requirements in key legislation.
Audience
Responsible officers and Legal Services staff.
| Version | Date | Description of changes | Approved by |
|---|---|---|---|
| V01.0.0 | 26/07/2024 | Under the 2023 Policy and procedure review program, new policy document with consolidated instructions previously provided in the Legislative Compliance policy, Legislative Compliance Procedures and Regulatory Legislative Compliance checklist. | General Counsel, Legal Services |
About the policy
| Term | Definition |
|---|---|
Attestation |
In these procedures, it refers to the results of the self-assessment process undertaken by responsible officers and the statements developed for the Audit and Risk Committee, which are based on those assessments. |
Business function |
Functions of the department undertaken by divisions, directorates and business units. |
Controls |
Processes, policies, devices, practices or other actions that maintain and/or modify risks. |
Legislative compliance |
The process by which the department understands the laws and regulations it must comply with and establishes controls to make sure this occurs. The legislation may be those Acts specifically allocated to the education portfolio or laws that apply to all people and organisations. |
Regulatory compliance |
The process for administering and monitoring particular regulatory regimes (for example, Quality Assurance and Regulatory Services regulates and monitors early childhood education and care services in NSW). |
Responsible officer |
The senior officer responsible for undertaking the compliance assessment and making the Statement of Compliance in respect of Legislation business function; refer to Assurance framework overview. Responsible Officers are at Executive Director level. |
Responsible officer (legislative compliance):
- understands the legislative obligations relating to their business function
- establishes and maintains appropriate controls and governance arrangements
- reports on legislative compliance as outlined in these procedures
- liaises with the relevant regulator or authority body as appropriate or required.
Responsible officer (regulatory compliance):
- understands the compliance regime for which the department is accountable
- establishes and maintains appropriate controls and governance arrangements
- reports on regulatory compliance as outlined in these procedures
- liaises with the relevant regulator or authority body as appropriate or required.
Legal Services:
- maintain the list of portfolio legislation key legislation and regulatory accountabilities
- maintain the Register of Responsible Officers
- maintain the legislative compliance tool and regulatory reporting checklist
- provide legal advice on legislative compliance as required
- coordinate the annual attestation process.
What needs to be done
The department must comply with legislation relevant to its functions and ensure compliance with delegated legislation (regulatory compliance). If it does not comply, it may be penalised and held liable for financial and reputational damage.
These procedures outline the steps for ensuring compliance with relevant laws and regulations.
The responsible officers of the relevant business functions are primarily responsible for legislative compliance. Non-compliance with legislation is managed appropriately and in accordance with legislation and applicable department policies.
1. Understanding legislative compliance
To ensure legislative compliance, the responsible officer needs to understand the applicable laws and regulations and use a framework to ensure they are followed.
Responsible officers should refer to A list of the department's key legislative commitments for more information.
2. Determining responsibility for legislative compliance
The Secretary and Executive are ultimately accountable for the department’s legislative compliance.
Responsible officers manage compliance for legislation related to their business function (including reporting and completing the annual self-evaluation process).
Where the business function administers multiple pieces of legislation, a self-assessment is undertaken against each piece of legislation.
3. Assuring legislative compliance
Responsible officers need to determine their level of assurance – the appropriate controls and arrangements to balance the level of risk arising from non-compliance with particular legislation.
Refer to Legislative compliance tool guidance for more information about the assurance framework.
4. Determining the level of assurance
Responsible officers must:
- determine the best legislative compliance approach for individual legislation
- balance the risk associated with non-compliance against the costs associated with greater assurance from controls
- judge the appropriate level of assurance for any given legislation while considering its particular legislative context.
The level of assurance needed will dictate the controls.
5. Using the Legislative Compliance Tool
Legal Services:
- initiate the annual process and notify responsible officers of the relevant deadlines
- consider responses of the responsible officers and prepare (attestation/statement of compliance assurance) for the Audit and Risk Committee
- provide support to the responsible officers undertaking the assessment process.
- use the Legislative compliance self-evaluation checklist (PDF 227 KB) to complete the annual self-assessment
- need to use evidence, data and their judgement to balance the risk of non-compliance with legislative obligations, as there is no definitive level of assurance across each business function.
Responsible officers (regulatory compliance):
- use the Regulatory compliance self-evaluation checklist (PDF 228 KB) to complete the annual self-assessment
- need to use evidence, data, and their judgement to balance the risk of non-compliance with regulatory obligations, as there is no definitive level of assurance across each business function.
6. Implementing legislative compliance
Responsible officers:
- must address any gaps and enhance controls identified during the self-assessment process
- use their discretion to reduce gaps in their legislative or regulatory compliance
- must only report their actions in the next yearly reporting cycle.
7. Reporting on compliance
Responsible officers must complete the self-assessment annually within the timeframes notified by Legal Services.
Legal Services will collate the self-assessment results for submission to the Audit and Risk Committee.
Record-keeping requirements
Records are managed in compliance with the State Records Act 1998 (NSW). Responsible officers are accountable for retaining evidence of their compliance and any related self-assessment artefacts.
Legal Services is accountable for records obtained through the Legislative compliance: self-evaluation form and the Regulatory legislative compliance checklist.
- Legislative compliance: self-evaluation form (MSF 58 MB)
- Legislative compliance: self-evaluation checklist
- Regulatory compliance: self-evaluation checklist (PDF 228 KB)
- A list of the department's key legislative commitments
- Assurance Framework Overview
- Legislative compliance tool guidance
Policy contact
The General Counsel, Legal Services monitors the implementation of this procedure, regularly reviews its contents to ensure relevance and accuracy, and updates it as needed.