The Authority and Interpretation of Regulations
| Author | Kevin M. Stack,Andrew Edgar |
| Date | 01 November 2019 |
| DOI | http://doi.org/10.1111/1468-2230.12458 |
| Published date | 01 November 2019 |
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Modern Law Review
DOI: 10.1111/1468-2230.12458
The Authority and Interpretation of Regulations
Andrew Edgar and Kevin M. Stack∗
In the past half century, governments have increasingly relied on regulations—secondary leg-
islation issued by administrative bodies and departments—to impose obligations on private
parties, multiplying the occasions for regulatory interpretation. This article develops a theory
of regulatory interpretation. It argues that such a theory involves understanding the authority
of regulations. Turning to the public law of the UK, US, and Australia, this article identifies an
intriguing similarity; in each case, regulations have authority when they rationally and nonar-
bitrarily implement delegated power within the means permitted by statute. The article then
argues that this account of regulatory authority justifies a common approach to interpretation in
which the object of interpretation is the purpose the regulation seeks to implement, discerned
from the regulation’s text and accompanying explanation of its purpose, and constrained by
background legal norms.
INTRODUCTION
For decades, regulations have created more primary rules of conduct than
legislation in the United Kingdom, the United States, Australia, and many other
legal systems. Far from merely ‘filling in the details,’ administrative bodies and
departments specify entire legal regimes based on broad statutory delegations.
The rise of regulations has multiplied the occasions for and stakes of regulatory
interpretation. Regulatory interpretation is not only cr itical for complying
with and enforcing the law, but also necessary whenever a court evaluates
whether a regulation is a valid exercise of delegated power or consistent with
constitutional or international law. Simply, a court cannot determine whether
a regulation complies with a higher-level legal source without interpreting the
regulation.
Despite the significance of regulations and their interpretation to modern
legal systems, regulatory interpretation has garnered far less attention than
statutory interpretation. Regulations are generally more technical and narrower
than statutes. But given the scope of conduct they govern, their specificity is
not a reason for overlooking their interpretation. Emphasis on shared formal
characteristics of regulations and statutes may also be a factor. Both regulations
and statutes are forms of legislated law, as distinguished from customary or
∗Respectively, Associate Professor, Sydney Law School and Lee S. & Charles A. Speir Professor of
Law, VanderbiltUniversity Law School. We are grateful to participants in workshops at Sydney Law
School and Australian National University Law School, and especially to Stephen Argument, Emily
Hammond, Grant Hooper, Rayner Thwaites, Leighton McDonald, Dennis Pierce, Daniel Stewart,
and Kevin Walton.
C2019 The Authors. The Modern Law Review C2019 The Moder n LawReview Limited. (2019) 82(6) MLR 1009–1033
The Authority and Interpretation of Regulations
case law.1As such, both are expressly made and adopted in a text,2which
states general, prospective and binding legal norms. Presumably in light of
these and other similarities, some statutory law and case law assumes regulatory
interpretation is subsumed by statutory interpretation.3
This article argues that the interpretation of regulations merits independent
assessment, and articulates a set of principles of regulatory inter pretation. To
do so, it considers the distinctive legal characteristics of regulations, and in
particular, the conditions of their authority. What gives regulations authority?
Because regulations are subordinate sources of law, it makes sense to turn to the
legal systems in which they operate to determine how those systems condition
and understand their authority. Our comparativeexamination of the public law,
and specifically, the administrative law, of the UK, US, and Australia, reveals a
surprisingly common account of the conditions of the author ity of regulations.
In each country, regulations must remain within the boundar ies set by their
authorising legislation. But with the delegation of semi-autonomous discretion
to administrative bodies, positive authorisation is not sufficient. Rather, in this
era of broad legislative delegation, regulations must also reflect conditions of
authority we refer to as nonarbitrary rational implementation of delegated powers.
That is, regulations must carry forward statutory ends in a rational way that
is also consistent with, and checked against, background legal constraints. In
light of the broad scope of legislative delegation, it is regulations’ rationality
and nonarbitrariness that completes their authority. These conditions appear in
different guises and doctrines but have a similar structure in the legal systems
that stem from English law which we address, and, we suspect, in many others.
This common account of the conditions of the authority of regulations
exposes and explains a set of common principles of regulatory interpretation.
Because the function of the regulation is to implement law and policy, it
makes most sense to view the purpose of the regulation, as discerned from
the regulation’s text and accompanying explanatory mater ial, as the object of
interpretation. Prospective readings of a regulation based on its purpose and
text may then be checked for consistency with background legal constraints,
making adjustments to those interpretations when fairly possible and needed
to accommodate those constraints.
This interpretive approach contrasts with the prominent interpretive theo-
ries developed largely for statutory interpretation. Debates over the method
of statutory interpretation have fallen along similar lines in the UK, US, and
Australia; in each, scholars and jurists argue for greater attention to legislative
1 J. Gardner, ‘Some Types of Law’ in D. Edlin (ed), Common Law Theory (Cambridge: CUP, 2007)
51, 51-60.
2ibid, 53-54.
3 Indeed, the assumption appears in some statutory law, (Legislation Act 2003 (Cth), s 13(1)(a)),
some case law (McEldowney vForde [1971] AC 632, 658 per Lord Diplock; Master Education
Services Pty Ltd vKetchell (2008) 236 CLR 101 at [19]; Collector of Customs vAgfa-Gevaert Ltd
(1996) 186 CLR 389, 398), and some commentary (see, for example, D.Bailey and L. Norbury,
Bennion on Statutory Interpretation (London: LexisNexis, 7th ed, 2017) 96; D.C. Pearce and S.
Argument, Delegated Legislation in Australia (Sydney: LexisNexis Butterworths, 5th ed, 2017)
489).
1010 C2019 The Authors. The Modern Law Review C2019 The Moder n LawReview Limited.
(2019) 82(6) MLR 1009–1033
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