Delegated Legislation in Australia

Full Title
Copyright
Preface
Table of Cases
Table of Statutes
Table of Contents
	1 Overview
		Introduction
	2 Making, Publication and Commencement
		Introduction
		Making, Publication and Commencement: Commonwealth
		Making, Publication and Commencement: Australian Capital Territory
		Making, Publication and Commencement: New South Wales
		Making, Publication and Commencement: Northern Territory
		Making, Publication and Commencement: Queensland
		Making, Publication and Commencement: South Australia
		Making, Publication and Commencement: Tasmania
		Making, Publication and Commencement: Victoria
		Making, Publication and Commencement: Western Australia
	3 Parliamentary Review
		Introduction
		Form of Review in Australia
		Parliamentary Review: Commonwealth
		Senate Standing Committee on Regulations and Ordinances
		Parliamentary Review: Australian Capital Territory
		Standing Committee on Justice and Community Safety (Legislative Scrutiny Role)
		Parliamentary Review: New South Wales
		Legislation Review Committee
		Parliamentary Review: Northern Territory
		Subordinate Legislation and Publications Committee
		Parliamentary Review: Queensland
		Scrutiny by Portfolio Committees
		Parliamentary Review: South Australia
		Legislative Review Committee
		Parliamentary Review: Tasmania
		Subordinate Legislation Committee
		Parliamentary Review: Victoria
		Scrutiny of Acts and Regulations Committee
		Parliamentary Review: Western Australia
		Joint Standing Committee on Delegated Legislation
	4 Scrutiny Principles: ?In Accordance with the Statute?
		Introduction
		Requirement that Delegated Legislation be ?In Accordance with the Statute?
	5 Scrutiny Principles: ?Trespass Unduly on Personal Rights and Liberties?
		Introduction
		Does Delegated Legislation ?Trespass Unduly on Personal Rights and Liberties??
		?Trespass Unduly on Personal Rights and Liberties?: Issues Raised
	6 Scrutiny Principles: ?Does Not Unduly Make the Rights and Liberties of Citizens Dependent Upon Administrative Decisions Which are Not Subject to Review on Their Merits?
		Introduction
		Requirement that Delegated Legislation ?Does Not Unduly Make the Rights and Liberties of Citizens Dependent Upon Administrative Decisions Which are Not Subject to Review on Their Merits by a Judicial or Other Independent Tribunal?
		Summary
	7 Scrutiny Principles: ?Does Not Contain Matter More Appropriate for Parliamentary Enactment? 127
		Introduction
		Requirement that Delegated Legislation ?Does Not Contain Matter More Appropriate for Parliamentary Enactment?
		Summary
	8 Other Scrutiny Principles
		Introduction
		Scrutiny of By-Laws and Local Laws
		Fundamental Legislative Principles
		Scrutiny of Explanatory Material
		Scrutiny of Regulatory Impact Statements, Etc
		Summary
	9 Bills Scrutiny
		Introduction
		Senate Standing Committee for the Scrutiny of Bills
		Scrutiny of Bills Committees: Other Jurisdictions
		Summary
	10 Human Rights Scrutiny
		Introduction
		Australian Capital Territory ? Human Rights Scrutiny Under the Human Rights Act 2004 (ACT)
		Victoria ? Human Rights Scrutiny Under the Charter of Human Rights and Responsibilities Act 2006 (Vic)
		Commonwealth ? Human Rights Scrutiny Under the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth)
		Summary
	11 Making, Publication, Commencement and Parliamentary Review: Concluding Comments
		Introduction
		Australia?New Zealand Scrutiny of Legislation Conferences
		Reporting on Errors in Delegated Legislation and the Creation of a ?Statutory Instrument Hub?
		Scrutiny of National Scheme Legislation
		Amendment or Disallowance of National Scheme Legislation
		Incorporation of Australian Standards, etc by Reference
		Scrutiny of Delegated Legislation on ?Policy? Grounds
		Regulatory Impact Statements, Staged Repeal, etc
		Accessibility of Information on the Work of the Committees
		The Strathclyde Review and the Importance of Disallowance Motions
		The Unseen Influence of Legislative Scrutiny Committees
		Summary
	12 Judicial Review of Delegated Legislation: General
		Introduction
		Right of Courts to Pronounce on Validity of Delegated Legislation
		Separation of Powers
		General Test of Invalidity
		Validity is Jurisdictional Issue
		Presumption of Validity
		Invalidity Operates Retrospectively
		Court Not Bound by Parties? Arguments as to Validity
		Grounds on Which Delegated Legislation May be Invalid
		Distinction from Review of Administrative Decisions
		Simple Ultra Vires
		Power to Make Delegated Legislation Purposive
		Self-Imposed Constraints on Review of Some Legislation
		Change in Authorised Authority
		Valid End Cannot be Achieved by Invalid Means
		Review of Delegated Legislation Made Under Discretionary Regulation-Making Power
		Rules of Court
		Failure to Make Regulations ?As Prescribed?
		Anticipatory Legislation
		No Liability for Negligence in Making Delegated Legislation
	13 Effect of Non-Compliance with Formal Requirements
		Introduction
		Common Law Requirements for Making Delegated Legislation: Procedural Fairness
		Procedure for Making and Revoking Delegated Legislation
		Laying of Delegated Legislation Before Parliament
		Disallowance of Delegated Legislation
		Publication of Delegated Legislation
	14 Empowering Provisions: General
		Introduction
		?Necessary or Convenient? (or ?Expedient?)
		?Necessary? or ?Convenient?
		?Carrying Out or Giving Effect to? Legislation
		?Without Limiting the Generality of the Foregoing Provisions?
		?Required or Permitted to be Prescribed?
		?For the Purposes Mentioned in This Act?
		?With Respect to?
		?Good Rule and Government?
		Convenience, Comfort and Safety
		Exemptions and Exceptions
	15 Empowering Provisions: ?Regulate?; ?Prohibit?
		Introduction
		?Regulate?
		?Govern?; ?Control?; ?Manage?; ?Determine?
		?Restrain?
		?Prohibit?; ?Suppress?; ?Prevent?
		?Regulating and/or Prohibiting?
		Prohibition Coupled with a Discretion
	16 Empowering Provisions: Penalties and Forfeitures
		Introduction
		Strict Construction of Power to Impose Penalties
		Variation in Penalty According to Mode of Trial
		Exercise of Common Law Rights Not a Penalty
		Imposition of Civil Liability
		Avoidance of Civil Liability by Legislation-Making Authority
		Incidental Punitive Effect
		Imposition of Strict Liability
		Imposition of Obligation Without Specifying Penalty
		Imposition of Penalty Not to Exceed Specified Maximum
		Injunction to Compel Compliance with Legislation
		Interpretation of Provisions Creating Offences
	17 Empowering Provisions: Licences and Fees
		Introduction
		Licensing Powers
		Imposition of Fees
	18 Inclusion of Discretions in Delegated Legislation
		Introduction
		Inclusion of Discretion Does Not Invalidate Delegated Legislation
		Application of Principle
		Legal Effect of Discretion May Lead to Invalidity
		Statutory Power to Incorporate Discretion
		Australian Response to Munt?s Case
	19 Inconsistency
		Introduction
		Inconsistency with Empowering Act
		Inconsistency with Other Acts
		Inconsistency with Common Law
		Rules of Court
	20 Improper Purpose
		Introduction
		No Inquiry into Motives of Parliament
		Inquiries into Motives of Crown Representative
		Inquiry into Motives of Other Legislation-Making Bodies
		Relevance of Motive of Legislation Maker
		Use of Particular Power for Other Than Specified Purpose
		Legislation May Not Constrain Motive
		Motives of Legislation Maker Acting Under General Power
		Preferred Approach
		Legislation Making in Bad Faith
		Giving Effect to Policy/Politics
		Motives of Elected Bodies
		Ascertainment of Motive Directly from Legislation Makers
		Ascertainment of Motive from Other Material
		Review Where Motives Mixed
		Courts Reluctant to Identify Impropriety
	21 Unreasonableness: Proportionality
		Introduction
		Unreasonableness
		Specific Cases Relating to Unreasonableness
		Proportionality
	22 Uncertainty
		Introduction
		Meaning of Uncertainty
		Specific Cases Relating to Uncertainty
	23 Subdelegation of Delegated Legislative Power
		Introduction
		Constitutional Background
		Subdelegation of Delegated Legislation-Making Power
	24 Incorporation of Material by Reference
		Introduction
		Cases Indicating Invalidity of Incorporating Legislation
		Cases Indicating Validity of Incorporating Legislation
		Summary
		Incorporation of Material as in Force From Time to Time
		Statutory Provisions Relating to Incorporation from Time to Time
		Subdelegation Through Incorporation
		Content of Incorporated Material
	25 Effect of Repeal ? Empowering Provision; Regulations
		Introduction
		Repeal of Empowering Provision
		Repeal of Regulations
	26 Procedure for Judicial Review of Delegated Legislation
		Introduction
		Non-Statutory Means of Challenge
		Procedure Where Statutory Right of Challenge
	27 Proof of Delegated Legislation
		Introduction
		Necessity to Prove Delegated Legislation
		Methods of Proof of Delegated Legislation
		Effect of Proof of Delegated Legislation
	28 Ousting of Judicial Review
		Introduction
		?Full Force and Effect?; ?Force of Law?
		Conclusive Evidence
		Read as One With and Construed as Being of Equal Validity
		?As if Enacted? in Empowering Act
		Subsequent Interpretation of ?as if Enacted? Clause
		Application of Foster v Aloni Principles
		?As if Enacted? Clause and Uncertainty as Ground of Review
		Refusal to Extend Interpretation of ?as if Enacted? Clause to Other Similar Clauses
		Legislation Prescribing Matter for Purposes of Act
		Legislation to be Deemed to Have Been Duly or Validly Made
		Disallowance by Other Authority
		Direct Exclusion of Judicial Review
	29 Severance
		Introduction
		Severance Where No Statutory Requirement
		Severance Where Statutory Requirement
		Reading Provisions Down to be Within Power
		Severance and Rules of Court
		National Security Legislation
		General Validity Requirements to be Met After Severance
	30 Interpretation of Delegated Legislation
		Introduction
		Interpretation Acts and Delegated Legislation
		Interpretation Having Regard to Nature of Instrument
		Interpretation Having Regard to Drafter
		Specific Interpretation Principles Relating to Delegated Legislation
	31 Retrospective Operation of Delegated Legislation
		Introduction
		Presumption Against Retrospectivity
		Presumption Applicable to Delegated Legislation
		Presumption Applicable to Changes in Substantive Law
		Retrospectivity May Go to Validity
		Other Matters Inhibiting Making of Retrospective Delegated Legislation
		Statutory Limits on Retrospectivity
	32 Judicial Review ? Conclusion
		Role of Courts
		Enabling Clauses
		Extension of Review Powers
		Procedure for Review
		Conclusion
Index