Justifications for delegating legislative power

16.34   Practical necessity is perhaps the overriding justification for delegated legislation. The ‘modern state depends on reams of delegated legislation’[46] and therefore the ability of a legislature to empower others to make legislation has been described as ‘an essential adjunct to the practice of government’.[47]

16.35   Pearce and Argument write that the delegation of legislative power is ‘generally considered to be both legitimate and desirable’ in three situations:

  • to save pressure on parliamentary time;

  • when the legislation would be too technical or detailed; and

  • where the legislation must deal with rapidly changing or uncertain situations.[48]

16.36   ASIC highlighted the need for delegated legislation in the regulation of corporations and financial services. The nature of the laws that it administers, ASIC submitted, is such that ‘it would be impossible for primary legislation dealing with that subject matter to satisfactorily accommodate every circumstance currently known and that may arise in the future’.[49] ASIC continued:

These sectors of the Australian economy are complex and subject to constant innovation. Without delegated legislative power, primary legislation would be unable to anticipate and respond in a timely way to the challenges and issues raised by these sectors.[50]

16.37   Pearce and Argument write that ‘one of the fundamental justifications for putting something into delegated legislation is that it is something that parliament need not be too concerned about but, rather, is something that the parliament can be relatively comfortable merely keeping a watchful eye over’.[51] In other words,

‘important’ things—including the intrinsically ‘political’ things—are to be kept to the primary legislation. The delegated legislation is for the detail, for the machinery.[52]

16.38   Further guidance on what are appropriate matters for primary and delegated legislation may be found in the Legislation Handbook.[53] It states that ‘while it is not possible or desirable to provide a prescriptive list’, the following kinds of matters should be included in primary legislation:

(a)     appropriations of money;

(b)     significant questions of policy including significant new policy or fundamental changes to existing policy;

(c)     rules which have a significant impact on individual rights and liberties;

(d)     provisions imposing obligations on citizens or organisations to undertake certain activities (for example, to provide information or submit documentation, noting that the detail of the information or documents required should be included in subordinate legislation) or desist from activities (for example, to prohibit an activity and impose penalties or sanctions for engaging in an activity);

(e)     provisions conferring enforceable rights on citizens or organisations;

(f)     provisions creating offences which impose significant criminal penalties (imprisonment or fines equal to more than 50 penalty units for individuals or more than 250 penalty units for corporations);

(g)     provisions imposing administrative penalties for regulatory offences (administrative penalties enable the executive to receive payment of a monetary sum without determination of the issues by a court);

(h)     provisions imposing taxes or levies;

(i)      provisions imposing significant fees and charges (equal to more than 50 penalty units consistent with (f) above);

(j)      provisions authorising the borrowing of funds;

(k)     procedural matters that go to the essence of the legislative scheme;

(l)      provisions creating statutory authorities (noting that some details of the operations of a statutory authority would be appropriately dealt with in subordinate legislation); and

(m)    amendments to Acts of Parliament (noting that the continued inclusion of a measure in an Act should be examined against these criteria when an amendment is required).[54]

16.39   The proportionality principle, which is useful to test limits on many rights, may be less helpful in determining whether a delegation of legislative power is appropriate. For one thing, applied here, the proportionality principle would suggest that delegations of legislative power should be rare and only made when strictly necessary. However, delegating legislative power to the executive is very common and is a widely accepted method of law making, particularly if subject to parliamentary control.