Current issues in drafting and interpreting legislative instruments

Current issues in drafting and interpreting legislative instruments

Emma Turner, Special Counsel

11 June 2014

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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

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

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• 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’

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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

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Sea Shepherd Australia Ltd v Western Australia [2014] WASC 66

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Seafish Tasmania Pelagic Pty Ltd v Burke, Minister for Sustainability, Environment, Water Population and Communities (No 2) 2014117

ADCO Constructions Pty Ltd v Goudappel [2014] HCA

• Accrued rights and retrospectivity

• Henry VII clauses

• Beneficial interpretation

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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...

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• Constitutional rights

• Fundamental common law rights and liberties

• International human rights

Sources of rights

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• Express rights

• Implied freedom

• s15A AI Act applies – should be read down so as to be constitutionally valid (s 13(1)).

Constitutional rights

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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

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• 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

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• 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

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• 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

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• Absolute and non-derogable rights

• Internal limitations

• International standard for assessing compatibility

• Proportionality as ground in review of legislative instruments

Limits on rights

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Tips for reviewing and drafting instruments

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QUESTIONS

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

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Emma TurnerSpecial Counsel

Telephone: +61 3 8602 7223Email: Eturner@rk.com.au

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