Page 3288 - Week 10 - Thursday, 16 September 1993
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save existing regulations (with or without adaptations) to fit them to a new statutory regime. An Act may affect regulations by providing for them to be applied or interpreted in a certain way. These are all examples of a superior legislature intruding into the bailiwick of a subordinate law-maker and are devices that are legitimately employed from time to time. Viewed in this light, it would be incongruous if an Act altering the terms of a regulation were not regarded as intra vires.
6. In this overall context, it is interesting to note that subsection 22 (2) of the SelfGovt Act expressly provides that the power to make laws extends to making laws with respect to the exercise of powers by the Executive. Section 37 of the SelfGovt Act charges the Executive with responsibility for, inter alia, executing and
mi taining subordinate laws. Thus the Self-Govt Act itself contemplates the
ain
Assemblys involvement with matters pertaining to the Executive. In my view there is no reason in law why regulations should be regarded as outside this purview of the Assembly.
7. The existence of the Assemblys power, by resolution, to disallow regulations should not be taken by inference to confine the Assemblys discretion to review regulations in this way only. If the Self-Govt Act itself had conferred the disallowance power, ,there might be some grounds for contending that the principle embodied in the maxim expressio unius est exclusio alterius . applied - that the conferral of the power manifested the Commonwealth Parliaments intention that the disallowance mechanism should be the only means by which the Assembly should be able to review regulations, and to that extent the otherwise plenary power should be read down. However, the maxim cannot apply in this instance because the Assemblys disallowance power is conferred by another ACT Act (the Subordinate Laws Act 1989). The Assembly could not .fetter itself by denying itself power to legislate to amend or otherwise affect regulations. This is so even if the Subordinate Laws Act provided in effect that the disallowance provision was to be taken to be an exhaustive statement of the means by which the Assembly might review regulations - a later Act could override that.
8. Our researches have failed to reveal any instance when the issue of the competence of a Parliament to amend regulations directly has been specifically addressed by a court. In Hume v. Higgins (1949) 78 CLR 116 the High Court had to consider the ambit of the defence power after the cessation of hostilities and, particularly, the constitutionality of defence and national security legislation (including regulations) of the Commonwealth. Implicit in the Courts decision was an acceptance of the principle that an Act could terminate or extend the operation of regulations or even strengthen their impact by making an infringement of the regulations punishable as an offence under the Act. The overall dearth of judicial authority on the point is, I suggest, not surprising. Having regard to the minute proportion of statute law which falls to be judicially considered and the fact that the practice has been generally confined to amendments of a formal and non-contentious nature, it is extremely unlikely that anyone would ever have the interest or standing to contest the validity of such a provision.
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