Page 3289 - Week 10 - Thursday, 16 September 1993
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9. The subject has been addressed, albeit briefly, in several notable legal textbooks and commentaries dealing with the exercise of statutory powers in Australian jurisdictions, New Zealand and the United Kingdom. Uniformly, they provide support for the proposition that direct textual amendment of delegated legislation is a valid exercise of parliamentary legislative power.
10. The interstate experience is illuminating. The jurisdiction that most frequently amends regulations by Act is the Commonwealth; there are many examples of such provisions in Commonwealth Acts. In the States and the Northern Territory the device has been used infrequently, with New South Wales appearing to have done so more regularly. In the course of my enquiries of interstate colleagues in this respect; it was pleasing to learn that each of them confidently share my view on the question of power. However, they also feel strongly, as I do, about the dangers inherent in any proliferation of the practice. I believe it is important that I should lay my thoughts in-this regard before you as part of this advice.
11. I believe that there are cogent legal and practical reasons why the power to amend regulations by Act should be exercised sparingly. It should be invoked only in those infrequent instances when it is important that changes to regulations be made quickly to coincide with the commencement of an amending Act and it is impracticable to use amending regulations or for some other reason it is administratively desirable to include the amendments of the regulations in the amending Act. Moreover, such amendments should be confined to the formal arid non-contentious variety.
12. The practice of amending regulations by Act could complicate legal research. A person attempting to ascertain the up-to-date text of regulations could overlook amendments made by an Act, with resultant public criticism. This risk is greater if the practice were to be extended to making changes of substance. A particular problem could arise if an Act amended regulations in a way that exceeded the regulation-making power in the parent Act. Presumably even that amendment would be valid because the regulation-making power binds only the Executive, not the Assembly. Nevertheless, it would be a bizarre situation if subsequently a court, being asked to rule on the validity of regulations, had to address its .mind to the question of whether all of the text was the product of the Executive or whether there had been input from the Assembly.
D K Hunt Parliamentary Counsel
7 September 1993
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