This is a single section from Chapter 14. Read the full chapter here.

Should legislation grant a power of exemption?

There must be compelling reasons to grant a power of exemption.

 

Powers of exemption should not be the norm. They should not be granted to allow arbitrary exemption from the provisions of an Act, nor should they be granted to patch up incomplete policy development.

Where a power of exemption will delegate to the executive the power to change the scope or operation of an Act, or it reduces the accessibility of the law (because the law regarding to who or what legislation applies is spread across specific exemptions and the primary legislation), consideration should be given to whether that is a power better left to Parliament.

The Regulations Review Committee has expressed concern that in some cases exemptions have been so numerous and applied so broadly that the exemptions have supplanted the framework of rules to which they relate.

Factors that may favour the granting of a power of exemption are:

 

  • where the statute relates to a complex and rapidly developing field such that the boundaries may be difficult to foresee;
  • fields where an urgent decision on an exemption may be required;
  • where the circumstances requiring an exemption may be so exceptional or “one off” as not to justify amending an Act;
  • where an area requires frequent adaptation to changing factual or policy circumstances;
  • where minor unforeseen developments in, or technical issues with, the law may arise that do not justify amending an Act;
  • where compliance is impractical, inefficient or unduly expensive but the policy objective can be achieved by imposing conditions in the exemption.

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