Monday, 10 October 2011

Ministerial determination not invalid

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My friend Sam Hopper has said in his blog that Judge Anderson in the County Court found that the  Ministerial Determination which effectively excludes premises above the third storey from being "retail premises" was not a valid exercise of power.

While Judge Anderson did express the view that it appeared the determination was made without power, His Honour said that he did not consider it necessary to decide the matter.  See: Evans, Tapsall and Van Veen v Thurau Pty Ltd [2011] VCC 1354  at [19]. 

The  argument put to Judge Anderson was that s 5(1)(f) of the Retail Leases Act 2003 did not come into effect until 1 May 2003 and therefore the Ministerial Determination (which is dated 29 April 2003) could not be valid. 

The determination is stated to have been made under s 5(1)(f).  In my view the argument put to Judge Anderson was not correct. The Ministerial Determination says that it does not come into effect until 1 May 2003. Section 5(1B) says that an instrument made under 5(1):
may provide that it has effect on and from 1 May 2003 or such later date (whether before, on or after the date on which the instrument is made) as is specified in the instrument as the date on which it comes into effect.

Sections 13(2) and (3) of the Interpretation of Legislation Act 1984 appear to cure any potential problems. Sam's blog can be found here

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Author: Robert Hays Barrister subject to copyright under DMCA.


  1. [...] Robert Hay has recently added a post to his blog on the effect of the third floor determination available here. [...]

  2. [...] Robert Hay, in a post on his blog, pointed out that the instrument appears to be valid under s 13 of the Interpretation of [...]