Describe this administrative law assignment
What grounds could be argued in challenging the determination and the prospects of success
LAW
1. Does the Determination meet the formal requirements to become a legislative instrument?
The facts provide that s12 of The Act 1 allows the minister to determine vehicle standards by
legislative instrument. This section of The Act is the enabling provision which enables regulations to be made to achieve a certain purpose. If vague, one could also focus on the language within the enabling provision if required to make the determination.
2There are three formal requirements to evaluate if the determination will be allowed to become a legislative instrument. Consultation, Publication & Tabling with Parliament. Consultation The facts provide that the under The Act the Minister must ensure that consultation has
occurred with key stake holders and authorities in which The Act will effect 3 . The Minister may also have other statutory obligations in relation to consultation before making legislative instruments. 4 However statutory authority appears to be quite lenient and if it is found that the Minister is not imposed to allow consultation, The Minister could need to justify these actions by providing an explanation in its absence, 5 this is provided by way of
an explanatory statement in which Parliament can have the opportunity to scrutinize. 6 1 s12 Motorised Means of Transportation
Again, if the Minister fails to lodge an explanatory statement in relation to the legislative instrument to Parliament for registration this will not effect the validity or the enforceability of the instrument, 7 resulting in any lack of conformity for consultation on the Minister behalf almost irrelevant.
The Minister will then have a legislative requirement to publish the determination with the Federal Register of Legislation. 9 The legislative instrument will not be enforceable until it is registered and if so will come into effect on the date of registration.
Once the proposed legislative instrument is registered, it must then be tabled before both houses of Parliament within six sitting days of that house. 11 If the registered instrument is not laid before Parliament within that period it will cease to have effect. 12 If we have determined that the formal requirements have been to enact the legislative instrument, we must then ask has the Minister and Administrators conduct fall within the
determination? Is the legislative instrument reasonably proportionate to the end to be achieved?
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