Delegating powers to grant exemptions
This is a single section from Chapter 16. Read the full chapter here.
Should legislation delegate a power of exemption?
There must be good reasons to delegate a power of exemption.
Delegating powers of exemption should not be the norm. They should not be delegated to allow arbitrary exemption from the provisions of an Act, nor should they be delegated to patch up incomplete policy development.
If delegating a power of exemption would give the Executive the ability to change the scope or operation of an Act, or reduce the accessibility of the law (because the law regarding who or what the legislation applies to is spread across specific exemptions and the Act), 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 delegating a power of exemption are:
- an Act relates to a complex and rapidly developing field such that the boundaries may be difficult to foresee;
- fields in which an urgent decision on an exemption may be required;
- the circumstances requiring an exemption may be so exceptional or “one-off” as not to justify amending an Act;
- an area requires frequent adaptation to changing factual or policy circumstances;
- minor unforeseen developments in, or technical issues with, the law may arise that do not justify amending an Act; or
- compliance is impractical, inefficient, or unduly expensive but the policy objective can be achieved by imposing conditions on the exemption.