Use of regulations

EHL Burgess Properties v CSR [2015] VSC 295

This case reminds us (at [67]) that you can’t use regulations to interpret the Act they are made under.  Otherwise, it ‘would be a case of the tail wagging the dog’3.  One exception here is where the Act is expressly made subject to the regs. 

Also, where the Act and regs form part of a legislative scheme, the regs may be used to ascertain the scheme and help understand its nature.  The old sales tax regime and newer GST system are examples of this4iTip – interpreting regs and using them to better understand the legislative scheme is one thing, but leveraging them to construe the Act is a step too far.

This case is from Episode 4 of interpretationNOW!


Plaintiff M47 [2012] HCA 46 (at [56]).

Ellis & Clark (1934) 52 CLR 85 (at 89), Multiflex [2011] FCAFC 142 (at [15]).