Delegated legislation

Heatscape v Mahoney (No 2) [2016] NSWLEC 45

Episode 9 explains how regulations cannot control what an Act means.  This case (at [149]) reminds us that the same principles we apply to statutes ‘are equally applicable to the interpretation of subordinate legislation’ – no surprises here. 

An additional point11, however, is that delegated legislation is ‘less carefully drafted, and less keenly scrutinised, than primary legislation’12.  This implies that extra wriggle room is allowed when we interpret regulations and the like.  But how much and in what situations is anything but clear.  iTip – always read delegated legislation in context, with sympathy for both its purpose and function.

This case is from Episode 13 of interpretationNOW!


11  Condon [2014] NSWCA 149 (at [44]).

12  Not everyone agrees – Argument (2015) 26 Public Law Review 137.