Current issues in drafting and interpreting legislative instruments
•Download as PPTX, PDF•
2 likes•694 views
This document summarizes current issues in drafting and interpreting legislative instruments in Australia. It explores developments in characterizing instruments as "of a legislative character", challenges to the validity of instruments, and the relevance of rights in scrutinizing and interpreting instruments. The document outlines key concepts like what constitutes a legislative instrument under the Legislative Instruments Act and examines factors relevant to distinguishing legislative versus administrative character. It also discusses recent cases addressing issues like retrospectivity, accrued rights, and constitutional limits. The document notes sources of rights like constitutional, common law, fundamental liberties and international instruments that can affect an instrument's interpretation and validity. It concludes with tips for reviewing and drafting instruments.
Recommended
Recommended
More Related Content
Similar to Current issues in drafting and interpreting legislative instruments
Similar to Current issues in drafting and interpreting legislative instruments (20)
More from Russell_Kennedy
More from Russell_Kennedy (20)
Recently uploaded
Recently uploaded (20)
Current issues in drafting and interpreting legislative instruments
- 1. Current issues in drafting and interpreting legislative instruments Emma Turner, Special Counsel 11 June 2014 #Insert FileSite Doc ID
- 2. We will explore • developments in the characterisation of instruments ‘of a legislative character’, • challenges to the validity of instruments, and • the relevance of rights in the scrutiny and interpretation of instruments. Outline
- 3. An instrument in writing: • that is of a legislative character; and • that is or was made in the exercise of a power delegated by the parliament. (s5(1) LI Act) See also sections 5-10 LI Act and section 15AE AI Act. What is a legislative Instrument 3
- 4. • Roche Products Pty Ltd v National Drugs and Poisons Schedule Committee (2007) 163 FCR 451 at 451-60 [1]-[41] • Section 5(3) LI Act – an instrument that is registered is taken to be a legislative instrument ‘of a legislative character’ 4
- 5. Matters relevant to the distinction include:- •Whether the decisions determined rules of general application or whether there was an application of rules to particular cases •Whether there was Parliamentary control of the decision •Whether there was public notification of the making of the regulation •Whether there has been public consultation and the extent of any such consultation •Whether there were broad policy considerations imposed •Whether the regulation could be varied •Whether the power was of executive variation or control •Whether provision exists for merits review. Legislative v administrative character 5
- 6. Sea Shepherd Australia Ltd v Western Australia [2014] WASC 66 6
- 7. Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water Population and Communities (No 2) 2014117
- 8. ADCO Constructions Pty Ltd v Goudappel [2014] HCA • Accrued rights and retrospectivity • Henry VII clauses • Beneficial interpretation 8
- 9. Can attract Parliamentary scrutiny Can affect interpretation and validity • Evans v NSW (2008) 168 FCR 576 cf. Harbour Radio v ACMA [2012] Constitutional limits • Can result in reading down Relevance... 9
- 10. • Constitutional rights • Fundamental common law rights and liberties • International human rights Sources of rights 10
- 11. • Express rights • Implied freedom • s15A AI Act applies – should be read down so as to be constitutionally valid (s 13(1)). Constitutional rights 11
- 12. see • Levy v Victoria • Coleman v Sellars [2001] • Meyerhoff v Darwin City Council (2005) • Attorney-General (SA) v Corporation of the Adeliade City Council [2013] HCA Constitutional validity of delegated legislation 12
- 13. • Senate Standing Committee on Regulations and Ordinances • Pearce and Geddes [5.36] rights recognised by the courts • Momcilovic v The Queen [2011] HCA 34 at [444] useful list of rights and liberties in judgment of Heydon J Fundamental common law rights 13
- 14. • fundamental rights cannot be overridden by general or ambiguous words: see Sargood Bros v Cth (1910); Melbourne Corporation v Barry (1983); Plaintiff S157/2000 v Cth of Australia (2003) • Al-Kateb (2004) • Al-Masri (2003) • Momcilovic (2011) Principle of legality 14
- 15. • Human Rights (Parliamentary Scrutiny) Act 2011 • Grounds for invalidity? Wasantha v Minister for Immigration and Multicultural Affairs [1999] and Ashton v Commonwealth [2003] International instruments 15
- 16. • Absolute and non-derogable rights • Internal limitations • International standard for assessing compatibility • Proportionality as ground in review of legislative instruments Limits on rights 16
- 17. Tips for reviewing and drafting instruments
- 18. 18 QUESTIONS
- 19. The information contained in this presentation is intended as general commentary and should not be regarded as legal advice. Should you require specific advice on the topics or areas discussed please contact the presenter directly. Disclaimer 19
- 20. Emma Turner Special Counsel Telephone: +61 3 8602 7223 Email: Eturner@rk.com.au 20
Editor's Notes
- Retrospectivity Retrospective provision has no effect if specified to commence prior to registration and as a result: Rights of a person affected to their disadvantage Liabilities imposed on a person for anything done or omitted to be done before date of registration Can be expressly provided for in enabling legislation Nb requirements for explanatory statements The High Court has unanimously allowed an appeal against the decision of the NSW Court of Appeal in Goudappel v ADCO Constructions Pty Ltd. In 2010, Goudappel was injured in the course of employment with ADCO and suffered a whole person impairment of 6 per cent, and made a claim for compensation against ADCO. He later sought a lump sum compensation payment under s 66 of the Workers Compensation Act 1987 (NSW). That provisions was amended in 2012 to make lump sum compensation payments payable only to injured workers who suffered more than 10 per cent whole person permanent impairment, and was effective against claims made after 19 June 2012. The question before the NSWCA was whether the transitional provisions in the amending act meant the bar applied to claims for compensation generally, or only related to lump-sum payment claims specifically. The Court of Appeal held that the amendments do not apply to s 66 claims made before 19 June 2012 relating to an injury that results in permanent impairment, regardless of whether the claim was made under s 66 or s 67. The High Court held that the amendments did apply to claims made before 19 June 2012: the transitional regulation could not be interpreted so as to avoid its application to Goudappel’s claim. Examining the text, context and purpose of the regulation, the Court held that their purpose was ‘patently not beneficial’ to existing rights, and aimed to expand the regulation making power to allow regulations to affect those rights. The Court also rejected the argument that the transitional regulations were beyond the regulation-making powers in the Act.
- How rights scrutiny can reduce risk of invalidity arising, in particular on the following grounds: Legislative instruments may be invalid because it is inconsistent with or repugnant to the Act under which it was made, another Act or the general law. Legislative instrument may be invalid because its effect is so unreasonable that it cannot be regarded as falling within the contemplation of the legislation in making the Act or is not reasonably proportionate to the empowering provisions of the Act The delegated legislation may be invalid because after its meaning has been determined by the court its operation is such as to impose no certain obligations on the persons affected by it. A legislative instrument may be invalid because it may operate in a way that is not reasonable in the sense that this operation could not have been within the contemplation of Parliament when the power was enacted and it therefore exceeds the instrument-making power.31 The instrument would be invalid if it was manifestly unjust, illogical, arbitrary or capricious. Another ground of invalidity of a legislative instrument is that it is not proportionate to the achievement of its intended purpose and therefore exceeds the instrument-making power.32 The relationship between the reasonableness and proportionality grounds is not entirely clear.33 In any case, unreasonableness and lack of proportionality have been argued frequently as grounds for invalidating delegated legislation but ‘without particular success’. New trend has been to apply a test of reasonable proportionality to Citing the leading decision in South Australia v Tanner (1989) 166 CLR 161 at 164, the applicants contend that, as the 2012 Standard is a form of delegated legislation, such an instrument is invalid on the ground of proportionality if the following two tests are not satisfied: (a) the legislative instrument must, by its legal operation or practical effect, advance the prescribed purpose; and (b) the collateral consequences of the instrument must not be disproportionate to its effective operation in advancing the statutory purpose. [62] The applicants accept that the test of proportionality does not require the court to assess the merits of the 2012 Standard. They acknowledge that the question whether the instrument is within the power conferred by the primary legislation is one for the court to determine. [63] The applicants then contend that the 2012 Standard was not adapted to the statutory purpose set out in s 125(1) of the BSA. They claim that there was no evidence that the 2000 Standard required any amendment to address a present threat or harm to community safeguards. [64] The applicants also submit that the ACMA’s decision to make the 2012 Standard is unreasonable and perverse. In this context, they reiterate many of their claims regarding the alleged impossibility of complying with the requirements of the 2012 Standard as set out above under the Lange test. Applying those principles here, the 2012 Standard is not invalid for unreasonableness. The 2012 Standard is not “unreasonable” in the relevant legal sense as being so oppressive and capricious that there is a want of power to make that instrument. In my view, if the relevant provisions of the 2012 Standard are given their proper construction, their operation does not produce the oppression or capriciousness claimed by the applicants. This is not the type of “extreme case” which would warrant a finding of unreasonableness in the relevant legal sense. In coming to this conclusion I am particularly conscious of the need to approach this ground of challenge as one which focuses on the question of whether there is power to make such an instrument. Expediency is not the test. Nor is it relevant to consider whether there were other ways in which the power under s 125 of the BSA might have been exercised to produce a result more acceptable to the applicants. Such policy matters are the domain of the ACMA, not the court. [126] In circumstances where the 2012 Standard is not invalid for unreasonableness, the applicants cannot succeed in their contention that the ACMA’s decision to make the Standard was itself unreasonable. Whether the legislation represents the best or most expedient way to deal with its subject matter is for the legislator to determine: Harbour Radio Pty Ltd v Australian Communications and Media Authority [2012] FCA 614 applying comments of Evatt and Starke JJ made in Williams v Melbourne Corporation (1933) 49 CLR 142. In Parker v Minister for Sustainability, Environment, Water, Population and Communities [2011] FCA 1325 Bromberg J at [81] refused to hold a regulation that dealt with only one aspect of a problem to be unreasonable. It was up to the legislator to determine whether a matter should be dealt with as a whole or piecemeal. (Decision affirmed on appeal: [2012] FCAFC 94.) Spender J in Lamason v Australian Fisheries Management Authority, above, at [176] said ‘In the case of a legislative instrument … the matter has to go even further than Wednesbury unreasonableness’. As is shown below, the courts have shown such reluctance to engage in the activity of second guessing the wisdom of legislation that it seems that it requires a very obvious case before they will overturn delegated legislation on the ground of unreasonableness. In Commonwealth v Tasmania (1983) 158 CLR 1; 46 ALR 625 (‘the Dams case’), Deane J (at 264–5; 810) spoke of the regulations under challenge there as having to be ‘capable of being reasonably considered to be appropriate and adapted for giving effect to the Convention’ that was being invoked as the source of power. Later, he posed the test whether they ‘would lack any reasonable proportionality to the purpose of discharging’ that obligation (at 266; 811). These phrases were picked up by the High Court in South Australia v Tanner (1989) 166 CLR 161; 83 ALR 631. The majority said (at 167–8; 636): … the test of validity is whether the regulation is capable of being considered to be reasonably proportionate to the end to be achieved … It is not enough that the court itself thinks the regulation inexpedient or misguided. It must be so lacking in reasonable proportionality as not to be a real exercise of the power. Additional credence for this approach was found to exist in the passage from Dixon J in Williams v Melbourne Corporation (1933) 49 CLR 142 (set out in 21.4) (which may have surprised his Honour, as he was speaking in the context of unreasonableness as a basis for review of regulations. However, he would almost certainly have agreed with the dicta of the court in Tanner’s case). Since these early statements, proportionality as a ground for invalidating delegated legislation has been argued frequently — but, as with unreasonableness, without particular success. The most comprehensive judicial discussion of proportionality in its application to delegated legislation is to be found in the judgment of Weinberg J in Vanstone v Clark (2005) 147 FCR 299 at 337–52; 224 ALR 666 at 701–15. As is there pointed out, the starting point for consideration of the test is to be found in Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565; 116 ALR 54 in the judgments of Gummow and Cooper JJ. Gummow J (at 577; 66) distinguished proportionality as a consideration in the constitutional sphere from that where it is relevant to delegated legislation. He noted that the concept of unreasonableness has no place in the consideration of the validity of an Act, but is of importance when considering the validity of delegated legislation and administrative decisions. The proportionality principle is ‘differently focussed’ in the latter case. The Dixon J statement in Williams indicates that the fundamental question that remains is whether the delegated legislation is within the scope of what the parliament intended when enacting the empowering statute.