Delegated legislation

Warburton v VicForests (No 5) [2022] VSC 633

The traditional approach to delegated legislation – taken by Garde J (at [267-268]) – is that, being less carefully drafted and directed at ‘practical people’, legislation of this kind is to be given some latitude in its interpretation8.  Others say there is no principle requiring laxity’9.  Are these positions reconcilable?

The answer is ‘yes’.  Our approach subjects statutes and delegated legislation to the same essential discipline.  The circumstances in which delegated legislation is drafted (including the status of those involved) may be contextual and purposive factors supporting a ‘sensible practical approach’10.  The ‘whatever’ and ‘wherever’ of context guides us11.

This principle is from Episode 90 of interpretation NOW!


8 Gill [1963] 1 WLR 929 (at 933-934), Condon [2014] NSWCA 149 (at [44-45]).

9 4nature [2017] NSWCA 191 (at [45]), Argument 26 Public Law Review 137.

10 City of Swan [2017] WASC 217 (at [37]), cf Lilley [2013] FCAFC 121 (at [67]).

11 cf Byers QC in AGD [1983] Symposium on statutory interpretation (at 22).