(4.1) JR OF LAW MAKING - GROUNDS OF REVIEW - (validity of delegated legislation)

Question 1

Scaffold for determining validity of delegated legislation (4) steps)

Answer 1

A. Has the executive exceeded rule making power conferred by the Enabling Act?
B. Interpret the Act and the making of regulations that are: necessary/convenient; regulating/restraining; regulating/prohibiting to carry out purposes of the Act

C. Interpret the Regulation

D. Determine whether the regulation falls within the scope of the conferring Act

Question 2

Delegated (or subordinate legislation) will only be valid if

Answer 2

it is authorised by the Enabling Act

Question 3

Delegated legislation is not directly reviewable under the ADJR Act because:

Answer 3

it’s not a decision of administrative character (but of legislative character)

(also bc powers to make regulations often formally vested in the GG - an exception under s 3(3) ADJR Act)

Question 4

Noting that delegated legislation is not directly reviewable, once a decision has been made under that delegated legislation, how can it be challenged under the AJDR Act?

Answer 4

On the basis that there was no legal authority for it (ie, because the delegated legislation was itself not lawful – ultra vires).

Question 5

A. Has the executive exceeded rule making power conferred by the Enabling Act? A regulation will be invalid if

Answer 5

it is not authorised by the primary act

Question 6

B. Interpret the Act and the making of regulations that are: (1) necessary or convenient to carry out the purposes of the Act –> what does this mean

Answer 6

o The regulation elaborates or fills in a plan or purpose which the main provisions of the primary Act have outlined.
–> regulations can’t just add to the general plan of the primary Act or widen scope/purpose of the Act (Shanahan)

Question 7

B. Interpret the Act and the making of regulations that are: (2) regulating or restraining to carry out the purposes of the Act –> what does this mean

Answer 7

‘Power to regulate and restrain’ does not give authority to ‘prohibit’ (incl. prohibit subject to allowance) (Swan Hill)

Question 8

B. Interpret the Act and the making of regulations that are: (2) regulating or restraining to carry out the purposes of the Act –> Per Swan Hill, a power to regulate or restrain cannot be regarded as authorising

Answer 8

a general prohibition of unstructured discretion

Question 9

B. Interpret the Act and the making of regulations that are: (2) regulating or prohibiting to carry out the purposes of the Act –> what does that mean

Answer 9

‘prohibiting’ enables the making of a by-law which will prohibit either absolutely subject to any condition – allows activities to be prohibited conditionally or absolutely by regulations, however must only be done re subject matter identified in the Act (Foley v Padley)

Question 10

C. Interpret the Regulation –> what to do

Answer 10

Consider scope and effect –> what rights/obligations/powers/privileges does the delegated legislation change/regulate/abolish in respect of members of the public? (Kitto J in Fairfax)

Question 11

C. Interpret the Regulation –> what does Evans say?

Answer 11

Unless contrary intention manifest, regulation-making power read down so as not to permit abrogation of fundamental rights (Evans v NSW)

Question 12

D. Determine whether the regulation falls within the scope of the conferring Act –> The regulations must be consistent with

Answer 12

the means allowed in the Act (eg, Regulate as opposed to Prohibit) and consistent with the ends or objectives of the Act (ie, proportionate to the objectives of the Act)

Question 13

D. Determine whether the regulation falls within the scope of the conferring Act –> what’s the mean/end distinction

Answer 13

Can only use means/methods that are authorised by the empowering Act to achieve the Act’s ends/purpose/objective

(eg in Paull v Munday could regulate emissions, not how they are emitted)

Question 14

• Shanahan v Scott - valid delegated legislation or not?

Answer 14

INVALID

Purpose of Act was to provide collective marketing of Victorian eggs – DL made offence to place eggs in cold storage and applied to NSW eggs as well (extended marketing to preventing competition) – supplement rather than complemented, not confined to same field of operation

Question 15

Foley v Padley - valid delegated legislation or not?

Answer 15

VALID -
Act gave power to “prohibit any activity… likely to affect the use or enjoyment of the mall” – DL prohibited distributing flyers subject to allowance – valid, permitted as for the purpose for which power was conferred

Question 16

Evans- valid delegated legislation or not?

[- Act gave power to regulate conduct of the public on Catholic World Youth Day venues. Regulation gave police power to tell people to stop conduct that annoys or inconveniences]

Answer 16

INVALID
- ‘annoyance’ regulation involves subjectivity and could extend to expression of opinions (fundamental right) which don’t interfere with freedoms of others

Question 17

Paull v Munday - valid delegated legislation or not?

[Act gave power to “regulate, control and prohibit the emission of air impurities from fuel burning” – DL prohibited open fires]

Answer 17

INVALID – means is to be related to actual emission, not to the sources of pollution, here was regulating to get an envisaged result but used inappropriate means

Question 18

City of Adelaide - valid delegated legislation or not?

[Act gave power to make by-laws for “prevention and suppression of nuisances” and “generally for the good rule and government of the area, and for the convenience, comfort and safety of its inhabitants” – DL restrictions extended to on any road without permission]

Answer 18

VALID

• proportionality arguments can only be used in a limited manner

Question 19

• Swan Hill v Bradbury gave distinction between

Answer 19

prohibiting as opposed to being only authorised to regulate (the subject matter of the power was important to the Court’s interpretation of the power to regulate and restrain)

Question 20

Swan Hill v Bradbury what was held by HCA

Answer 20

• statutory power to make rules to ‘regulate and restrain’ building on private property within 10 feet of any street or road did not extend to an ‘entire but conditional prohibition’.

Question 21

If delegated legislation is ultra vires then

Answer 21

anything done pursuant to that legislation is also invalid –> means a decision under that delegated legislation would be invalid –> go to other grounds of review