Page 3287 - Week 10 - Thursday, 16 September 1993
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APPENDIX 1:
(Incorporated in Hansard on 15 September 1993 at page 3109)
PARLIAMENTARY COUNSELS OFFICE
SUBJECT: ACTS AMENDING REGULATIONS: OPINION
REF:
Attorney General
You have asked for my advice on the question of whether an Act can amend regulations and, if so, the source of power for the Legislative Assembly to pass such an Act.
2. In my opinion, the legislative competence of the Assembly does extend to passing an Act that would expressly amend regulations. In essence, therefore, I am concurring in the view that you expressed in the Assembly on Thursday 26 August 1993 in debate during passage of the Registrar-General (Consequential Provisions) Bill 1993 (see that days Hansard at page 97). The reasons for my view are set out in the following paragraphs.
3. Legislative competence to amend or otherwise affect subordinate laws (for present purposes I will confine myself to regulations made by the Executive) is simply one minor facet of the Assemblys plenary power under subsection 22 (1) of the Australian Capital Territory (Self-Government) Act 1988 (Cwlth) (the SelfGovt Act) to make laws for the peace, order and good government of the Territory. Any argument to the contrary would, I assume; have to be based on the premise that it would be an insupportable incursion by one law-maker into the domain of another. Such a view is simplistic and ignores the hierarchical relationship between a superior legislature and a subordinate law-maker. It also disregards the fact that regulations are never an independent sphere of discretionary law-making; rather, they are generally subservient to all Acts, not just to their respective parent Acts.
4. In forming my view, I have considered whether anything turns on the fact that in the Territory the subordinate law-maker, the Executive, is not itself the creature of an Act passed by the Assembly (the Executive having been established under Part V of the Self-Govt.Act). I have come to the conclusion that this is immaterial -it is sufficient that the Executive derives its law-making powers from Acts passed by the Assembly. The relationship between ,the Commonwealth Parliament and the Governor-General is an analogous one and that factor has obviously been discounted as irrelevant (see paragraph 10 below).
5. The consequence is, I believe, as sound in logic as it is in law, namely, that the Assembly, as the superior legislature, is just as competent to repeal or amend the text of regulations made by the Executive, as the subordinate law-maker, pursuant to a power conferred by the Assembly as it is to affect those regulations in other ways. An Act may limit or revoke a regulation-making power by amending the Act containing that power, thus in effect repealing some or all of the regulations that relied on that power for their validity.
Acts sometimes
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