Statutory instruments to be interpreted not to exceed powers under authorising law
43 Statutory instruments to be interpreted not to exceed powers under authorising law
A statutory instrument is to be interpreted as operating to the full extent of, but not to exceed, the power given by the Act or statutory instrument under which it is made (the authorising law).
Without limiting subsection (1), if a provision of a statutory instrument would, apart from this section, be interpreted as exceeding power—
the provision is valid to the extent to which it does not exceed power; and
the remainder of the instrument is not affected.
Example 1
The Agriculture Services Determination 2001, pt 4 exceeds the determination–making power given by the Agriculture Services Act 2000 (hypothetical). The other provisions of the determination are within power.
The determination (apart from pt 4) operates effectively. Pt 4 is treated as if it did not form part of the determination and is disregarded.
Note The kind of interpretation indicated in example 1 is known as a divisible interpretation of the determination.
Example 2
The Goats Regulation 2001 (hypothetical) is made under the Goats Act 2001. The Goats Regulation 2001, s 39 seeks to impose rules about the care of ‘animals’, but the Act only gives power to make regulations about goats.
Section 39 is read restrictively (‘read down’) as if it mentioned goats. In other words, the section is effective but treated as if it applied only to goats.
Note The kind of interpretation indicated in example 2 is known as a distributive interpretation of the regulation.
Example 3
The Wombat Protection Act 2003 (hypothetical) provides that the Minister may appoint a Wombat Advocate. The instrument making the appointment states that the appointment is for 5 years, but the maximum term of appointment authorised under the Act is 4 years.
The instrument is read restrictively (‘read down’) as if it referred to 4 years. In other words, the instrument is effective but the appointment is only valid for 4 years.
Note The kind of interpretation indicated in example 3 is known as a distributive interpretation of the instrument.
Without limiting subsection (1), if the application of a provision of a statutory instrument to a matter would, apart from this section, be interpreted as exceeding power, the provision’s application to other matters is not affected.
Example
The Community Safety Order 2001 is expressed to apply to all members of the community without qualification although it is in fact made under the Building Industry (Safety) Act 2000 (hypothetical). That Act is restricted in its operation to the building industry. The order is cast in such wide terms that it cannot be interpreted divisibly or distributively. However, the order applies to entities such as XYZ Constructions Pty Ltd because it is a company in the construction industry.
This section is in addition to any provision of the statutory instrument or authorising law.
This section is a determinative provision.
Note See s 5 for the meaning of determinative provisions, and s 6 for their displacement.
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