This is a single section from Chapter 16. 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 that does not materially affect the scope or operation of the legislation. If 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 following safeguards:

  • Consistency 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.
  • 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 28).
  • 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 Act.

Two additional safeguards may also be appropriate: sunsets or reviews, and annual reporting requirements:

  • Sunsets or reviews—The empowering Act may provide that an exemption may continue in force for not more than a certain period (for example, five years) (and is treated as revoked at the end of that period) or may require that exemptions be reviewed. This may be appropriate if exemptions under the Act are expected to be mainly of a short-term or temporary nature. It may also be appropriate if there is a special reason for requiring a regular review of exemptions (rather than leaving a review as matter of administrative discretion). A review may include assessing whether the Act itself should be amended. Providing for revocation is unnecessary if the legislative design of the Act contemplates exemptions that are relatively long-term or permanent in nature or if it is best left to administrative discretion as to when and how to prioritise reviews.
  • 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.

This page was last modified on