16.4 Delegating legislative power to the executive is now commonplace and is said to be essential for an efficient and effective government. The Public Interest Advocacy Centre submitted that, given ‘the breadth and depth of areas now regulated by government, the ability to flesh out primary legislation in subordinate legislation is a necessary and expedient tool of government’.
16.5 In fact, parliaments have been delegating powers to the executive for some time—in England, possibly for as long as 650 years. A famous example from 1539 is the Statute of Proclamations, which included the following provision:
The King for the Time being, with the advice of his Council, or the more Part of them, may set forth Proclamations under such Penalties and Pains as to him and them shall seem necessary, which shall be observed as though they were made by Act of Parliament.
16.6 In Australia, delegated legislation has been a major part of the law since colonisation. Indeed, ‘the very first legal step taken by the English to establish a colony—Governor Phillip’s Proclamation at Sydney Cove—could be viewed as a subordinate legislative action’. Today far more laws are made under delegation than directly by parliaments.
16.7 Not only does the modern state depend on delegated legislation, but it might be argued that parliamentary sovereignty would be limited to some degree if parliament could not choose to delegate part of its legislative power.
Public Interest Advocacy Centre, Submission 55.
See Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 4th ed, 2012) 5; VCRAC Crabbe, Legislative Drafting (Routledge, 2012) 213.
The King at the time was Henry VIII. As discussed below, a provision in an Act that allows for delegated laws to amend an Act of Parliament is now known as a ‘Henry VIII clause’. The Statute of Proclamations is also known as the Proclamation by the Crown Act 1539, 31 HVIII c 8.
Pearce and Argument, above n 3, 5.
Robin Creyke, John McMillan and Mark Smyth, Control of Government Action: Text, Cases and Commentary (Lexis Nexis Butterworths, 3rd ed, 2012) 259.