Delegating powers to grant exemptions
This is a single section from Chapter 16. Read the full chapter here.
Will the power be secondary legislation (and so subject to the publication, presentation, or disallowance procedures in the Legislation Act 2019)?
If the exemptions are to be secondary legislation, the empowering legislation must state that.
The empowering Act should state whether the exemption instrument is secondary legislation. The Legislation Act 2019 provides that all secondary legislation must be presented to the House of Representatives and is subject to disallowance, with limited exceptions. A class exemption that is of general application will usually be secondary legislation. A power to only exempt individuals or other named persons will often not be. However, the key question is whether the exemption is intended to have legislative effect according to the usual criteria (see 14.2 above). If a broad power to exempt individuals or other named persons and to set terms and conditions enables the maker to create what is, in effect, an alternative legislative scheme, it may be intended to be legislative.
Accordingly, a power of exemption tends to be legislative if one or more of the following apply:
- it applies generally (eg to a class of people or things)
- it enables substantive requirements to be imposed (eg through a power to impose terms and conditions) rather than merely disapplying part of the law
- there is a wide discretion in deciding whether to grant it, or
- it is so significant that it alters the scope of the empowering Act (rather than just creating an exception at the boundaries).
An exemption tends to be non-legislative if—
- it applies only to one or more named persons, or
- it reflects the application of clear statutory criteria to a particular case (ie where the granting of the exemption is merely the application of existing law set out in the empowering Act to a particular case, rather than the creation of new law).
In some cases, it will be appropriate to create two powers: a legislative power of class exemption (for which the usual Legislation Act 2019 safeguards of presentation, general publication, and disallowance should apply) and a non-legislative power to exempt one or more named persons (for which those safeguards are not needed).