Delegated Legislation

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This article is a topic within the subject Administrative Law.

Contents

Required Reading

R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012, [6.1.1]- [6.1.10];[5.3.3]-[5.3.8];[6.1.24]-[6.1.29].

Introduction

[1] Delegated or 'subordinate' legislation is a legislative rule made by an executive agency pursuant to an authority delegated by the legislature. In other words, there are times when actual legislation empower an executive agency to make their own 'subordinate' legislation (such as a set of regulations).

  • The authority to make subordinate laws is usually contained towards the end of a statute, and delegates power to a governor, a minister, or a statutory authority to make rules supplement to the act.
  • Delegated legislation is always subordinate to the real legislation under which it was made, and to other Acts (unless there is an override clause).
  • They generally deal with specific details, whereas the Act provides the general framework.

Why delegated legislation?

The idea behind delegated legislation is convenience and expediency - It is impractical for the legislature to make all legislation, therefore, a secondary role is played by the executive.

  • ie, Parliament doesn’t have time to make all rules nor update them regularly. This enables more frequent change in areas where flexibility or adaptation is required

The executive agencies are also usually better equipped to make such regulations as opposed to the parliament since they have expertise at the area at hand - for example, environmental agencies are obviously better equipped to make environmental regulations than parliament.

Constitutional issues - separation of legislative power

[2] An issue with delegated legislation is that it ultimately vests a legislative power with the executive branch of government, which goes against the idea of the separation of powers.

However, the High Court ruled in Victorian Stevedoring and General Contracting v Dignan[3] that Parliament does have the power to delegate certain powers to the executive as a feature of the Australian system.


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Control of delegated legislation

[4] Subordinate legislation made by the executive is not subject to the same parliamentary and public control as primary legislation. Therefore, alternative methods have been devised to ensure that the executive is accountable for the way is discharges its law making function. These include:

  1. Public consultation on proposed rule making: the publication of proposed rules before they are formally made enables those who may be affected by the rules to consider their impact, to access the costs and benefits, to influence the shape of any proposed regulatory regime, and to comment on matters of drafting and technical detail.
  2. Internal executive controls: formal executive procedures to control how subordinate legislation is prepared and drafted. A common feature of the executive procedures is an instruction to the effect that, unless warranted by special circumstances, subordinate legislation should not contravene core public law principles designed to safeguard civil liberties.
  3. Publication of subordinate legislation: statutory instruments, upon being made, be numbered, printed and made available for purchase by the public.
  4. Parliamentary oversight: Most categories of subordinate legislation are required to be tabled in each house of the legislature, to enable scrutiny and possible disallowance. Parliament is assisted in this function by scrutiny committees, such as the Senate Standing Committee on Regulations and Ordinances.
  5. Judicial review: province of courts under the separation of power to examine whether subordinate legislation was validly made.
  6. Other mechanisms of administrative law review: Ombudsman, tribunals and other administrative law review agencies also play a role, through less central in nature, in the review and control of subordinate legislation.

Legislative Instruments Act 2003 (Cth)

[5] Another control mechanism is the Legislative Instruments Act 2003 (LIA):

  • s 5 - Scope: 'legislative instruments' are either:
    • (1): an instrument in writing that:
      • Is of legislative character; AND
      • Was made in the exercise of a power delegated by the Parliament.
    • (2): an instrument is taken to be of a legislative character if:
      • It determines or alters the content of the law, rather than applying it in a particular case; AND
      • It has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or carrying or removing and obligation or right.
  • s 6: More examples of things that are taken to be legislative instruments (see the section).
  • s 7: Instruments declared not to be legislative instruments.
  • S 9: Rules of court are not legislative instruments.
  • s 10: A-G may certify whether an instrument is legislative instrument or not.
  • See the supplementary materials for more information.

Other things the act is concerned with include:

  • Executive oversight: The Act makes the Secretary of the Attorney-General’s Department responsible for ensuring that legislative instruments are drafted to a high standard for delivering legislative instruments to parliament for tabling, and for maintaining a computerised Federal Register of Legislative Instruments containing all legislative instruments and explanatory memoranda: ss 16, 20. An instrument that is registered on the Federal Register is to be treated as an authorised copy of the instrument: s22.
  • Public consultation: The Act encourages public consultation in the making of legislative instruments that are likely to have a substantial effect on business and other proposed instruments that agencies wish to consult about: s17.
  • Parliamentary Scrutiny: The Act consolidated procedures for parliamentary tabling and scrutiny, imposing some additional rigour- for example, reducing the 15 tabling period to six sitting days: s38.
  • Enforcement: The main method of enforcement of the publication requirement of the Act is that an instrument that is not registered on the Register is not enforceable by or against the Commonwealth: ss31, 32.
  • Sunsetting: The general rule is that legislative instruments are repealed automatically- ‘sunsetted’- 10 years after their commencement (s50), though a rule in the same terms could then be remade.

The LIA addresses four basic problems prevailing before the enactment of the LIA:[6]

  1. The proliferation of instruments not covered by the existing regimes
  2. The LIA by providing that instruments are recognised as having a legislative effect and have to be registered leads to agencies taking more care to ensure that they say and do what they are supposed to do.
  3. Accessibility- the LIA ensures that people can now work out the law is by making sure that all “legislation’ is now publicly available. The LIA established a Federal Register of Legislative Instruments in which all legislative instruments must be registered.
  4. The LIA ensures that instruments of a legislative character receive appropriate scrutiny by the legislature.
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End

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References

Textbook refers to R Creyke & J McMillan, Control of Government Action: Text, Cases and Commentary, 3rd ed, 2012.

  1. Textbook, pp. 297-8.
  2. Textbook, p. 264-7.
  3. (1931) 46 CLR 73).
  4. Textbook, p. 306-8
  5. Textbook, pp. 308-10.
  6. ,S Argument ‘Delegated Legislation’ in Groves & Lee (eds) Australian Administrative Law, Cambridge, 2007.
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