Delegating legislative power—a common practice

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’.^[2]

16.5       In fact, parliaments have been delegating powers to the executive for some time—in England, possibly for as long as 650 years.^[3] 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.^[4]

16.6       In Australia, delegated legislation has been a major part of the law since colonisation.^[5] 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’.^[6] 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.