The validity and invalidity of delegated legislation

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [8.4.1-5]; [8.4.10-11C]; [8.4.16C-18]; [8.4.20-26C]; [8.5.1]-[8.5.8].

Introduction

[1] Delegated legislation, like any other area of exercise of power, has to abide by the principle of legality and come from an identifiable source of legal authority. In that sense, delegated legislation or the exercise of power under can be said to be invalid.

The validity issue may arise in the context of:

  • Compliance with statutory procedural requirements – eg, has it been tabled in parliament, published and notified to the public?
  • Substantive statutory authorisation – is there support in the parent Act (or is it ultra vires)?
  • Narrow statutory construction – authority conferred in general terms to make a rule thought ‘necessary or convenient’ will not ordinarily allow a tax or penalty to be imposed, condone entry onto private property, preclude access to the courts, retrospectively operate, or curtail a fundamental freedom such as the right of public protest.
  • Compliance with administrative law criteria for legal validity – also known as grounds for judicial review, include if the purpose is authorised, the effect is disproportionate, unjust or unreasonable or if the subordinate legislation impermissibly sub-delegates the authority to make rules.
  • Consistency with primary legislation – must be consistent with not only the parent Act but also any other Acts, unless there is an override (or Henry VIII) clause. State subordinate legislation is also invalid if inconsistent with Commonwealth Acts or subordinate legislation.
  • Constitutional compatibility – does the regulation transcend the Commonwealth’s legislative authority under the separation of powers? Does it infringe an implied constitutional guarantee?

Any of the above issues may prevent the subordinate law from being valid and therefore, from operating.

General Test of Invalidity

In McEldowney v Forde[2] Lord Diplock devised the test:

  1. Determine the meaning of the words used in the Act of Parliament itself to describe the subordinate legislation which that authority is authorised to make,
  2. Determine the meaning of the subordinate legislation itself,
  3. Decide whether the subordinate legislation complies with that description.

In South Australia v Tanner[3] Brennan J compares the approach to that adopted by a court in deciding whether a law enacted by the parliament is within the legislative powers conferred by the Constitution:

  • However, in his opinion, the authority for subordinate legislation should be construed more narrowly than the validity of legislation.
    • “...parliament shall not be held to have delegated to another repository more power than is clearly denoted by the words it has used... a delegation of legislative power should be more narrowly construed unless the parliament has, by express provision or necessary intendment, revealed a contrary intention.”
  • Brennan J raises the issues of judicial deference – should the court defer to the view of an executive body? He favours the view that construction should be narrow and therefore deference to executive intention should be limited.

A countervailing view is expressed by the majority in Tanner, who warn that on the the specialist issue there under construction “a court must exercise care not to impose its own untutored judgement on the legislator” and should accordingly adopt “a broad, rather than a narrow, approach...”

  • Rich J made a similar observation in Footscray Corporation v Maize Products Pty Ltd[4] that the bodies entrusted to create subordinate legislation are familiar with the locality and the needs of the residents where the by-law is to operate and are therefore “better fitted than judges to deal with their requirements.”
  • Weinberg J, in Vanstone v Clark,[5] noted that “some courts have cautioned against erecting hypothetical examples of abuse as a basis for finding by-laws invalid.”

In conclusion:

  • The issue of validity is determined by a process of statutory construction, applied to both the parent Act and the subordinate rule.
  • The court does not examine the wisdom or expediency of the subordinate rule.
  • In construing both instruments, it is necessary to refer to matters such as the terms of the legislation, the nature of the body entrusted with the power to make rules, the subject matter and presumptions of statutory meaning.

The Complement/Supplement Distinction

[6] The scope of delegated legislation is generally limited to the power to make rules which are “necessary or convenient” to give effect to the primary Act.

  • They are ancillary or incidental to administering the Act (Morton v Union Steamship Co of New Zealand[7]) or have “some rational relationship” with the objects or purposes of the Act (Evans v State of New South Wales[8]).

In Shanahan v Scott,[9] the court held that the regulations can complement but not supplement the parent Act.:

  • Facts: The Marketing of Primary Products Acts established an Egg Board for the marketing of eggs. A regulation was made to prevent placing eggs in cold storage or subjecting them to preservative treatment – the purpose of this was to make it difficult in Victoria to sell eggs from NSW.
  • Held: The parent legislation only concerned eggs vested in the Vic board. The regulation attempted to extend or 'widen' the legislation into a further field of regulation (ie, to NSW eggs), which is invalid and ultra vires.
    • Delegated legislation can complement but not supplement the parent Act. Power will not support attempts to widen the purposes of the Act, to add new and different means of carrying them out or to depart from or vary the plan which the legislature has adopted to attain its ends.

The regulate/prohibit distinction

Generally, delegated legislation can only regulate, and not outright prohibit, activities. This was discussed in Foley v Padley:[10]

  • Facts: The Rundle Street Mall Act 1975 allowed the Adelaide City Council to make regulate activity in the mall “that is in the opinion of the council, likely to effect the use or enjoyment of the mall.” The council made a by-law which prevented people from 'handing out' or distributing anything to others (intended to prevent fliers). The appellant submitted that the description of activities in the by-law is very wide and capable of including many innocent activities.
  • Held: there is a presumption that subordinate legislation should not be construed to restrict individual liberties, unless an intention to do so clearly appears. Accordingly, the present by-law is interpreted to only apply to the distribution of large volumes of fliers etc to unconnected passerbys. On this interpretation, the by-law was held to be valid because it does not affect the use or enjoyment of the mall.
    • Dissent (Brennan): the by-law may prohibit activity of an inoffensive nature. A by-law which “confers a discretionary power that is too wide” may be invalid for the reason that it “might be used for a purpose other than the purpose for which the statute conferred power to make the by-law” ie, the risk of abuse of power.
  • Note: this illustrates that even when delegated legislation appears to have the capacity to prohibit/oppress the public, the court may read it down and state that it is valid in its reduced state.

In O’Connell v Nixon,[11] the court held that “a power to regulate an activity may include a power to prohibit part of an activity subject to discretionary dispensation.”

The means/ends distinction

Another distinction (which is important but not decisive) is that delegated legislation can specify the means to get a particular end but not simply state the desired ends in themselves.

This was discussed in Utah Construction and Engineering Pty Ltd v Pataky:[12]

  • The Privy Council held that an Act conferring power to make regulations “relating to the safeguards and measures to be taken for securing safety and health of persons in engaged in... excavation work” did not support a regulation providing that “Every drive and tunnel shall be securely protected and made safe for persons employed therin.”
  • The regulations did not tell a contractor what measures to take but merely imposed an absolute duty to ensure safety - that is violating the means/end distinction.

Unreasonableness as a test of invalidity

[13] Another test for the invalidity of delegated legislation is a test of unreasonableness. However, courts have generally been reluctant to apply this test because of the broad authority usually given to make subordinate rules, the expertise of the body making the rules and a concern not to stray into merits review.

  • The test has also been overshadowed by a reasonable proportionality test (see below) that must be met by subordinate legislation made pursuant to a power that is purposive in nature.

One of the few instances where the test was upheld was in in Minister for Primary Industries and Energy v Austral Fisheries Pty Ltd:[14] where the court held that delegated legislation may be declared to be invalid on the ground of unreasonableness if it leads to manifest arbitrariness, injustice or partiality.

An illustration of its rejection by the courts is given in De Silvia v Minister for Immigration and Multicultural Affairs:[15]

  • Facts: The Australian government amended the Migration Regulations to allow those who had arrived prior to November 1993 to seek permanent residence in Australia. The appellant argued that the regulation change unreasonable (and invalid) due to the differential and unfavourable treatment of those arriving after 1993.
  • Held: the argument was rejected - there was a policy rationale for the cut-off.

Reasonable proportionality and the purpose/subject matter distinction

[16] A new trend has been to apply a test of 'reasonable proportionality' - ie, examining whether there is a valid connection exist between a legislative or executive action and the purported source of authority for the action.

This was discussed in South Australia v Tanner:[17]

  • Facts: Tanner wanted to construct an aviary on his property. However, an act against pollution had a regulation set up to prevent him from constructing a zoo or aviaries. Tanner challenged its validity.
  • Held: the “reasonable proportionality” test examines whether there is a valid connection between a legislative or executive action and the purported source of authority for that action.
    • The question is whether the regulation was reasonably proportionate to the end to be achieved or the purpose of the parent Act.
      • It can also be seen as whether there was 'sufficient nexus'. A broad approach should be taken when determining the nexus.
    • In this case, the regulation was sufficiently connected to the purpose of reducing or preventing deterioration and pollution of the water supply and therefore valid.
    • Dissent (Brennan): not specific enough therefore not proportionate enough.

Formal and informal delegation of decision-making power

[18] Legislation, in conferring power to make a decision, will invariably nominate the person authorised to exercise that power - known as the principal.

  • The validity of a decision can hinge on whether it was made by the person nominated in the legislation.
  • This principle is founded on the maxim that “a delegate cannot delegate”, which presupposed that the principal is the delegate of the legislature and is obliged to safeguard the power so entrusted to them.

There are 4 categories of authorised decision makers:

  1. Principal - Person nominated in the legislation as the authorised decision maker or statutory office holder.
    • The principal retains the authority, even when the power to do so has been delegated to other officers: s34AB(d) of the Acts Interpretation Act 1901.
  2. Delegate - Person or officer to whom power or function has been delegated.
    • Delegate’s scope of authority will be set out in the instrument of delegation: it may replicate that of the principal, or be hedged with limitation or conditions.
  3. Agent - To make decisions on behalf of a principal or delegate.
    • Exceptions: where there is a ‘practical administrative necessity’ is the phrase used in Re Reference.
  4. Administrative assistant - To conduct research, interview someone, prepare a briefing paper or notify a decision to those affected.

This was discussed in Re Reference under Section 11 of Ombudsman Act 1976 for an Advisory Opinion; Ex Parte Director-General of Social Services:[19]

  • Facts: s11 provided that the Cth Ombudsman could request an agency to refer a question to the AAT for an advisory opinion. Question referred to the tribunal concerned the validity of a decision made by a delegate of the Director-General of Social Services under s14 of the relevant legislation to affirm an earlier decision refusing unemployment benefit to a school leaver. The delegate, Mr Prowse, had signed a letter notifying the applicant of the decision to affirm the refusal of benefit.
  • Held:
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End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp 433- 51.
  2. [1971] AC 632.
  3. (1983) 166 CLR 161.
  4. (1943) 67 CLR 301.
  5. (2005) 88 ALD 520.
  6. Textbook, p. 438-40.
  7. (1952) 83 CLR 402.
  8. (2008) 168 FCR 576
  9. (1957) 96 CLR 245.
  10. (1984) 154 CLR 349.
  11. (2007) 16 VR 440.
  12. [1966] AC 629.
  13. Textbook, pp. 447-8.
  14. (1993) 40 FCR 381.
  15. (1998) 89 FCR 502.
  16. Textbook, pp. 448-9.
  17. (1989) 166 CLR 161.
  18. Textbook, pp. 456-64.
  19. (1979) 2 ALD 86.
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