16.8 Despite the fact that parliaments commonly delegate legislative power to the executive, and have done so for some time, some laws are more properly made by Parliament. Professor Denise Meyerson has written that although some delegated legislation is clearly necessary in practice, there is a danger:
if we allow the unlimited transfer of legislative power to the executive we run the risk of subverting the rule of law ideal, fundamental to the control of government, that those who carry out the law should be restrained by those who make it.
16.9 Furthermore, the executive has been said to ‘lack the democratic credentials of Parliament’. The framers of the Constitution vested the legislative power in the Australian Parliament ‘because they thought the people’s elected representatives particularly well-suited to the exercise of the “open-ended discretion to choose ends” which is the essence of the legislative task’.
16.10 The fact that the ‘executive process lacks the transparency and publicity of the parliamentary process’ has been said to be an important concern about delegating legislative power. Delegation ‘reduces the accountability of the exercise of legislative power’.
16.11 Although it is not clearly a right, freedom or privilege, the principle that legislative power should not be inappropriately delegated to the executive may be an important way of protecting other rights, freedoms and privileges. MJC Vile said the separation of powers doctrine—which clearly supports the principle discussed in this chapter—was ‘essential for the establishment and maintenance of political liberty’.
16.12 Sometimes, criticism of delegated legislation concerns its quality and quantity, rather than whether the law belongs in primary legislation. David Hamer, for example, has said that delegated legislation is a ‘fertile field for government despotism and bossy interference by bureaucrats’. The thrust of the debate about the burden of government regulation, Robin Creyke and John McMillan write, is that
some government regulation has become overly prescriptive, badly designed, poorly administered, inconsistent and duplicative, unduly burdensome, unnecessarily costly to industry, and a barrier to national business competition.
16.13 However, this chapter is not about the quality or quantity of delegated legislation, or whether particular delegated laws should have been made at all, but rather about whether particular types of delegated law should more properly have been made directly by parliament.
Denise Meyerson, ‘Rethinking the Constitutionality of Delegated Legislation’ (2003) 11 Australian Journal of Administrative Law 45, 52.
Judith Bannister et al, Government Accountability (Cambridge University Press, 2014) 112.
MJC Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 1998) 14. Pearce and Argument summarise the primary arguments directed against the use of delegated legislation as: ‘First, that if the executive has power to make laws, the supremacy or sovereignty of parliament will be seriously impaired and the balance of the Constitution altered. Second, if laws are made affecting the subjects, it can be argued that they must be submitted to the elected representatives of the people for consideration and approval’: Pearce and Argument, above n 3, 11.
The ‘proliferation’ of delegated legislation is discussed in Pearce and Argument, above n 3, 16.
David Hamer, ‘Can Responsible Government Survive in Australia?’ (Department of the Senate, 2001) 148 <http://www.aph.gov.au/About_Parliament/Senate/Research_and_Education/hamer>.
Creyke, McMillan and Smyth, above n 6, 368.