Session 3A: Statutory Interpretation and Delegated Legislation Notes

Session 3A: Statutory Interpretation and Delegated Legislation in Judicial Review

Overview

• This session focuses on statutory interpretation and delegated legislation, particularly concerning simple ultra vires and the Legislation Act.
• Delegated legislation can lead to jurisdictional error if it breaches the Legislation Act's requirements.
• Delegated legislation can be challenged on broader (extended ultra vires) grounds.

Recap and Context

• Session 3: Covered simple ultra vires (substantive, procedural, jurisdictional fact).
• Readings: Delegated legislation and statutory interpretation are more relevant to session 3A than session 3.
• Textbook covers statutory interpretation's role in defining public powers (chapters 2 and 3).
• Procedural fairness and jurisdictional fact doctrine are directly discussed in chapter 4.
• Simple ultra vires relates to a lack of jurisdictional power and a jurisdictional error at the threshold, including issues with delegated legislation.
• Simple ultra vires engages heavily with statutory interpretation.
• Simple ultra vires can arise with prerogative powers.

Statutory Interpretation and Its Role

• Statutory interpretation determines the meaning of words in legislation and delegated legislation.
• Applies to regulations and bylaws similarly to legislation.
• Example: Defining "motor vehicle" under the Road Safety Act 1986.
• Statutory interpretation is involved in a large number of cases and appeals.
• Legal system has shifted from common law to statutes as the primary source of law.
• Unlawfulness under simple ultra vires largely stems from statutory interpretation of powers granted by statute.

Two-Step Process

• Check for ambiguity or absurdity in legislative language.
• Resolve ambiguities using the purposive approach and statutory interpretation principles.
• If no ambiguity exists, use statutory interpretation to justify the language's meaning.

Evolution of Statutory Interpretation

• Shift from literal approach (emphasizing text) to purposive approach (considering statutory purpose).
• Evolution via common law principles, maxims, and presumptions (e.g., presumption against interference with fundamental freedoms).
• Changes through parliamentary directives in interpretation acts (e.g., mandating the purposive approach).
• The meaning of a term in a statute may become subject to common law interpretation.
• Statute is superior to common law.

Purposive Approach

• Core directive: consider the purpose of legislation in both steps.
• Start with the text, context within the Act, and the Act's/provision's purpose.
• Use these to confirm the word's meaning.
• Stick to the text unless context or purpose indicates otherwise.
• If the words' meaning is clear, confirm via cross-reference and purpose; if no ambiguity, the process is complete.
• If the meaning is unclear or application leads to absurdity, continue the process, relying on purpose.
• Context refers to how other sections in the Act affect each other.
• Purpose refers to Parliament's intent in creating the provision/Act.

Interpreting Statutes

• Principles:
  • Legal-grammatical rules: ordinary/natural meaning (dictionary meaning and context).
  • Common law maxims (e.g., 'expressio unius').
  • Presumptions (e.g., principle of legality).
  • Interpretation legislation (e.g., section 15AA of the Acts Interpretation Act mandates the purposive approach).
  • Case law (binding or persuasive precedent).

Statutory Interpretation and Simple Ultra Vires Examples

• Substantive lack of jurisdiction (regulate/prohibit).
• Procedural lack of jurisdiction (consultation requirements).
• Error in jurisdictional facts (rural land determination).
• The Legislation Act mandates certain requirements for delegated legislation.

Statutory Interpretation in Other Areas of Judicial Review

• Procedural fairness: its existence, and doctrines (like legitimate expectations) are guided by statutory interpretation.
• Extended ultra vires: involves determining improper purpose by engaging with statutory purposes.
• Relevant and irrelevant considerations: statutes may list factors.
• Ouster clauses, their effect or lack thereof, is determined through application of statutory interpretation principles.
• Standing in jurisdiction is heavily engaged with statutory regulation and restriction.

Key Principles for the Course

• Apply the purposive approach (Project Blue Sky).
• Step 1: Determine the text's meaning (ordinary and natural).
• Step 2: Consider common law rules (typically the principle of legality).
• Mention the purposive approach.
• Rely on case law (e.g., ABC and Redmore for mandatory/directory provisions, Melbourne Corporation and Barrie for regulate/prohibit).

Delegated Legislation

• Executive exercising legislative power delegated by Parliament.
• Referred to as secondary/subordinate/quasi legislation.
• Derives legal authority from a parent act (e.g., Defence Act, local government acts).
• Can be described as rules, regulations, bylaws, ordinances, etc.

Rationale

• Frees up Parliament to consider bigger issues.
• Allows knowledgeable people (e.g., experts in departments) to make specific rules.
• Dangerous because unelected officials make laws, and rapid changes may occur based on government policies.

Control Measures

• Parliament enacted the Legislation Act in 2003 to regulate delegated legislation.

Legislation Act Requirements

• Consultation with the public.
• Impact statements.
• Registration on the Federal Register.
• Tabled in Parliament (both houses) within six sitting days.
• Sunset clause (repeal after ten years).

Key Provisions

• Section 15K: If not registered, unenforceable.
• Section 38: If not tabled within six sitting days or disallowed, ceases to have effect.
• Failing to table regulations means they are invalid at the federal level, while in Victoria, it simply triggers a parliamentary review process.
• Section 42: Parliament has fifteens days to propose to disallow or overrule a tabled regulation. If such a proposal is made and there's no response within a further fifteen days, the regulations are invalidated.

Tabling Process Flowchart:

• Law made and registered (section 15K).
• Six sitting days to table in both houses.
• Otherwise, invalid (section 38).
• Fifteen days for Parliament to propose disallowance (section 42).
• If no response, regulations are automatically invalidated.
• Sunset provisions: provide a use-by date for delegated legislation.

Thorpe v Minister for Aboriginal Affairs (1990)

• Case example of tabling and parliament requirements (pre-Legislation Act scheme; fifteen sitting days).
• Delegated legislation validly made but not tabled.
• The court held that the delegated legislation was repealed on October 16, but it was lawful and in force prior to that automatic repeal.
• Election rules enforced at the beginning of the election period.

Legislative Instrument Definition

• Section 8: Something made under power delegated by Parliament, determining/altering the law, not deciding individual cases.

Not Legislative Instruments:

• Things Act specifies.
• Notifiable instruments.
• Rules of court.

Section 9 of the Legislation Act:

• Mere definition as a legislative instrument does not imply an administrative character. It does not affect the jurisdiction of the courts under the ADJR Act.
• Intended to ensure that the Legislative Act scheme does not affect the jurisdiction of courts under the ADJR Act and preserve the general doctrine on whether a thing is of an administrative character.

Parliament's Supervisory Role

• Senate standing committee checks regulations for compliance, rights interference, court review, and overreach of parent legislation.
• The Senate also supervises bills.

Challenging Delegated Legislation

• Failure to register and table leads to unlawfulness (simple ultra vires).
• Reliance on the legislation makes any decision unlawful.
• Challenges occur when decisions are made, not when delegated legislation is created.
• Direct challenges are limited to common law review/constitutional jurisdiction/equitable remedies.
• The courts are uncomfortable interfering with legislative decision-making because it is polycentric and it is not sufficiently impartial for it to be appropriate for a court to interfere with it, not to mention separation of finance issues.
• Usually, challenge delegated legislation indirectly by challenging decisions made underneath it.
• When we challenge the administrative decision made under the delegated legislation, the ADJR Act's available, and the common law writs are typically available.

Flowchart for Delegated Legislation Questions

• Westminster responsible government delegatus non protest delegare (Parliament can delegate via Meeks and Dignant).
• ADJR Act: Grounds by which to challenge unlawful delegated legislation.
• Policy matters refer to any grounds of extended ultra vires. Instruments may be unlawful and render any decisions unlawful in flexible policy.
• Making delegated legislation deals with the session topics covered today.
• Challenging delegated legislation via breaching extended ultra vires.

Key Cases

• Meeks and Dignan: Parliament can delegate legislative power (delegatus non protest delegare).
• Greene and Daniels: Government instruments are not always delegated legislation; policy alone can't override legal requirements.
• toohey: Delegated legislation declared unlawful for improper purpose.
• Delegated legislation expanded the boundaries of Darwin from $142 km^2$ to $4350 km^2$.
  • The court held the power to make regulations were not granted for the purpose of undermining idigenous land claims.
• Delegated legislation sets out a formula for fishers, and the formula is impossible. It was so unreasonable that regulation that no reasonable person would have made it.

Post-Class Activity

• Analyze the validity of regulations based on the Legislation Act.