potest
483
-
an express grant of a power implicitly confers power needed to
make the express grant of power effective. This translation reveals not only the
maxim but its rationale. This is not so much a doctrine of law, but a maxim of
necessity that applies to all conferment of powers.
484
Its purpose is to make
the statute more capable of implementing the legislature’s policy.
Exercise of Power
Other principal provisions concern the exercise of power. (i) Once conferred,
a power may be exercised from time to time as the occasion requires. (ii) A
power conferred on an office holder may be exercised by the holder of that
office for the time being. The significance of this is that acting and temporary
holders, and successors, may exercise the power. (iii) Power to make a
decision generally entails a power to vary and to rescind the decision. (iv)
Power to appoint a person to an office entails power to suspend, to remove,
and to make temporary or acting appointments. (v) Power to determine a
question involves power to take evidence on oath. (vi) Generally, the word
“may" in a statute confers a discretion while "shall" imposes a duty.
Statutory Instruments
Statutory instrument is used here in its general sense to mean any instrument
issued under a statute. Thus it refers to both delegated legislation and executive
instruments.
Since statutory instruments made under Acts are in a functional sense part of
an Act, the general principles for interpreting statutes apply equally to them.
485
That is, for the purposes of interpretation statutory instruments stand "on the
same ground as an Act of parliament and are governed by the same maxims of
construction”.
486
However, this general principle that the maxims of interpretation apply to
statutory instruments is subject to an obvious qualification. It is necessary to
make allowance for the different origin and status of a statutory instrument.
487
There are also two principles of specific relevance to statutory instruments
which need to be mentioned. (i) Unless a contrary intention appears,
483
D'Emden v Pedder (1904) 1 CLR 91, 109 per Griffith CJ
484
D'Emden v Pedder
(1904) 1 CLR 91, 110 per Griffith CJ, and see Grannall v
Marrickville Margarine
(1955) 93 CLR 55, 77 per Dixon CJ, McTiernan, Webb and
Kitto JJ
485
Collector of Customs v Agfa-Gearet (1997) 141 ALR 59, 65
486
King Gee Clothing Co v Commonwealth
(1945) 71 CLR 184, 195, Collector of
Customs v Agfa-Gearet (1997) 141 ALR 59, 65
487
Parry v Osborn [1955] VLR 152
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