Ministerial determination valid

  • Author : Robert Hay QC - 25-10-2011

My previous post contended that the Ministerial Determination dated 29 April 2003 made pursuant to s. 5 of the Retail Leases Act 2003 (2003 Act) was made with power by reason of s.13(3) of the Interpretation of Legislation Act 1984. By the Determination the Minister excluded from the definition of “retail premises” in s.4 of the 2003 Act certain premises that were used wholly or predominantly for the retail provison of “services” and located above the first three storeys of a building.

Section 13 of the Interpretation Act permits the exercise of certain powers provided for in legislation the commencing date of which is postponed. In the absence this provision it would be necessary to include in an Act specific power, for example, to make regulations or appointments that have to be in place when the Act commences operation[1]. Section 13(3) was not incorporated in the Intepretation Act until April 2006. The Minister’s Determination was effective because of s.13 of the Interpretation Act as it appeared in 2003 and not by reason of s.13(3). When the Interpretation Act was enacted and when the 2003 Act commenced on 1 May 2003, s.13 provided that:


 

“Where an Act or a provision of an Act which does not come into operation immediately on the passing of the Act will, upon its coming into operation, confer power or amend another Act so as to confer power under the other Act as so amended to make subordinate instruments, give notices, make appointments, prescribe forms or do any other thing for the purposes of the first-mentioned Act or provision or that other Act, the power may be exercised at any time after the passing of the first-mentioned Act but the exercise of the power does not confer a right or impose an obligation on a person before the coming into operation of the first mentioned Act or the provision of that Act in question except insofar as is necessary or expedient for the purpose of –

(a) bringing the first-mentioned Act or the provision of that Act in question into operation;

(b) making the first-mentioned Act or the provision of that Act in question fully effective at or after the time at which it comes into operation; or

(c) making the amendment made to the other Act by the first-mentioned Act or the provision of that Act in question fully effective at or after the time at which the first-mentioned Act or provision comes into operation.”

(underlining added)

 

Thus, where an Act had passed but had not come into operation, s.13 of the Interpretation Act conferred power to, among other things, “give notices” or “do any other thing for the purpose of the Act”.  This power did not confer a right or impose an obligation on a person before the Act came into operation except so far as it is necessary to make the Act fully effective when it comes into operation.

The Determination was made pursuant to s.5 of the 2003 Act which came into effect on 1 May 2003. The Determination was made on 29 April 2003 and thus before  s.5 commenced. However, by reason of s.13 of the Interpretation Act, after an Act has passed but before it has commenced, a Minister has power to, among other things,  “give notices” or “do any other thing” for the purpose of the Act. Consequently, because of s.13 of the Minister had the power to make the Determination because although the 2003 Act had not commenced:

(a)        the 2003 Act had passed; and

(b)        the Determination was made by “notice”, or, at the very least, the Minister had done “any other thing for the purpose of the Act” within the meaning of s.13 of the Interpretation Act.


[1] See Pearce and Geddes, Statutory Interpretation in Australia

, 7th ed, paragraph 6.7.

About the Author

Robert Hay QC

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