Delegated legislation

QBE Insurance v Mordue [2015] NSWCA 380

This case (at [92]) makes the point that delegated legislation gives way to the statute under which it is made where the two are ‘irreconcilably incompatible or inconsistent’12.  Delegated legislation includes regulations, rules, by-laws, determinations and instruments made under an Act. 

Regulations cannot control what an Act means, but they may be used to ascertain and understand a ‘legislative scheme’.  QBE notes that delegated legislation inconsistent with the enabling Act is beyond power13; not simply that it cannot change what the Act means14iTip – when dealing with delegated legislation in any of its forms, remember its status and pay attention to the wider context.

This case is from Episode 9 of interpretationNOW!


12  Pearce & Geddes (at [3.41-3.42]).

13 cf Toyota v Marmara [2014] FCAFC 84 (at [94-96]).