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

What safeguards apply to the exercise of the power of exemption?

Legislation must specify appropriate safeguards to apply to powers of exemption.

 

An exemption that varies the scope of legislation or applies to a class of people or things will require a greater level of safeguards than a minor concession to an individual which does not materially affect the scope or operation of the legislation. Where exemptions to individual parties may give an unfair advantage, consideration should be given to allowing class exemptions.

A power of exemption should generally be subject to the safeguards noted below.

 

  • Consistent with purpose of the Act: The power must be exercised consistently with the purpose of the Act. The circumstances in which the exemption may be granted or the criteria for the exercise of the power should also be consistent with the purpose of the Act. This is often incorporated into the criteria (see next point).

 

  • Criteria for exercise of power: Legislation should set out the criteria for granting the exemption. Clear criteria will reduce the likelihood of a successful judicial review of the decision to grant or refuse an exemption.

 

  • Reasons: Legislation should include a requirement to give reasons for the exemption, although this requirement may not be necessary for minor or trivial exemptions.

 

  • Expiry: Exemptions should be subject to an expiry date to ensure regular review of the exemption, except where the exemption must necessarily be permanent if granted or will naturally expire.

 

  • Judicial review: The ability to seek judicial review of the exercise of an exemption power is an important safeguard. This right should not be unreasonably restricted (see Chapter 25).

 

  • Process review: Usually there should be a process (which need not be in the legislation, but may be expected by Ministers or select committees) to review exemptions at regular intervals to identify a need to amend the primary legislation.

 

Two additional safeguards may also be appropriate: review requirements and annual reporting requirements.

 

  • Review requirements: Legislation may include a provision that the power of exemption is reviewed at a future set date to assess whether or not permanent legislative amendment is required.

 

  • Annual reporting requirements: The person or body that exercises the power may be required to submit a report to Parliament detailing the number of times and circumstances in which a power of exemption was exercised.

 

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