Constitutional limits

16.21   The Australian Constitution does not expressly authorise the Commonwealth Parliament to delegate power to make laws, but nor is it expressly prohibited. The High Court’s decisions in Baxter v Ah Way[24] and Roche v Kronheimer[25]have been held as authority for Parliament’s power to delegate certain legislative powers to the Executive. Dixon J said that Roche v Kronheimer decided that

a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law.[26]

16.22   In Victorian Stevedoring and General Contracting Company v Dignan, Dixon J noted the ‘logical difficulties of defining the power of each organ of government, and the practical and political consequences of an inflexible application of their delimitation’.[27]

16.23   Dixon J suggested when a delegation of legislative power may not be valid:

This does not mean that a law confiding authority to the Executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of Federal power. There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity of an Act creating a legislative authority.[28]

16.24   Whether constitutionally valid or not, a ‘wide’ and ‘uncertain’ delegation of legislative power may not be appropriate.