Creating a new statutory power
This is a single section from Chapter 18. Read the full chapter here.
What is the power and how will it be exercised?
Legislation should identify what the power is and for what purposes, and in which circumstances, it may be exercised.
A clear statement of the power and how it will be exercised will assist those exercising the power, those people subject to it, and those who may be responsible for settling any dispute over the exercise of it.
That statement should also reduce the risk of litigation regarding the particular exercise of a power.
The following matters should be specified in the legislation:
- any pre-requisite circumstances or procedural steps (such as consultation) that must be taken before exercising the power;
- the appropriate process for exercising the power (which will depend on the purpose and characteristics of the power, the issues to be resolved, the interests affected, and the qualities and responsibilities of the decision maker);
- whether the power is to be exercised independently (which should be made clear either from the context or by explicit provision—for example, the Crown Entities Act 2004 has a “statutorily independent function” regime that should be referenced in appropriate cases); and
- whether the exercise of the power requires the taking into account or exclusion of certain matters (those matters should be identified, and it should be explicit whether or not those matters make up an exhaustive list).
See, for example, section 7 of the Major Events Management Act 2007.