Exemption instruments made under s 7 of the Fish Resources Management Act 1994 (WA) do not have 'legislative effect' and are not 'subsidiary legislation' requiring Gazette publication under s 41 of the Interpretation Act 1984 (WA). The determination of whether an instrument has 'legislative effect' requires a multi-factorial assessment comparing the instrument's characteristics with those usually present in legislation, not merely asking whether the instrument 'changes the content of the law'. The approach of Gummow J in Queensland Medical Laboratory v Blewett should not be treated as a general test. In relation to costs, a combination of genuine public interest motivation, arguable case, novel questions of general importance, and contribution to clarification of the law may justify an exceptional order that there be no order as to costs.
The full text is available to signed-in members, including the 17 later cases that cite this judgment.
3 of the 17 citing cases carry a classified treatment. How each court treated it is available to signed-in members.