Delegated legislation

NL v Chief Executive DFCP [2023] SASCA 20

Delegated legislation is invalid if it is inconsistent with the statute under which it is made12.  As the court explained (at [118-123]), inconsistency may involve direct collision between the two, or may arise where the statute is ‘plainly intended’ to ‘cover the field’13 – that is, where the statute is objectively intended as a complete statement of the law.

Applying this, the court held (at [168]) that s 60 of the Safety Act14 involved an ‘exhaustive statement’ of situations where a youth court may make an order for costs against the Crown.  Various factors showed that the provision conferred only a limited discretion that could not be extended by delegated legislation.

This principle is from Episode 95 of interpretation NOW!


12 White [1899] 2 QB 34 (at 37), Webster (1980) 49 FLR 317 (at 320-321).

13 Cullis (1914) 18 CLR 540 (at 543), Pearce & Argument (at [19.23]).

14 s 60 of the Children and Young People (Safety) Act 2017 (SA).