Use of regulations

Ryde v PIA (No 4) [2017] NSWSC 436

This case (at [93]) re-works themes in Episode 4.  Regs usually cannot ‘be taken into account’ when interpreting the Act, but an exception is where the regs and statute ‘form part of a legislative scheme’ (as here).  Ticking the ‘scheme’ box, however, provokes further questions – (A) how are the regs to ‘be taken into account’? and (B) what legitimate impact may they have on what the statute means? 

Regulations are available ‘to ascertain or identify the scheme’, but cannot be leveraged to expand, read down or rewrite the Act unless there is some ‘clear stipulation’ in this respect11 –  for example, where the Act is expressly made subject to the regs12.

This case is from Episode 24 of interpretationNOW!


11  Lundbeck [2017] FCA 56 (at [87]), Master [2008] HCA 38 (at [19]).

12  O’Connell [2007] VSCA 131 (at [28]), CCM [2013] NSWSC 1072 (at [120-123]).