Creating a new statutory power
This is a single section from Chapter 18. Read the full chapter here.
Is a new statutory power required?
A new statutory power should be created only if no suitable existing power or alternative exists that can achieve the policy objective.
If there is already clear authority in existing legislation, it is inappropriate to grant the same power in new legislation because it would lead to duplication and a lack of certainty in the law. This is particularly true where only one Act is amended because it may result in an unintended distinction between two provisions (see Chapter 3.3).
If there is an existing common law power, careful consideration must be given to whether or not it is sufficient. If it is not sufficient, consideration should be given to replacing it with a statutory power. If the intention is to limit or extinguish the common law power, the new legislation must clearly state that (see Chapter 3.6).
If an existing power is relied on to perform a new function created by legislation, that power must be clearly identified in the documentation that supports the legislation along with the reasons why it is considered that the new function can be exercised under it.