16.14 Delegated legislation receives less public and parliamentary scrutiny than primary legislation. However, some concerns about delegated legislation may be addressed by the procedures that must be followed in making the legislation, particularly since the enactment of the Legislative Instruments Act 2003 (Cth). These safeguards are designed to allow Parliament to oversee the making of delegated legislation, to scrutinise it through committees, and to repeal laws that Parliament considers should not have been made.
16.15 The practical effect of the Legislative Instruments Act was explained in part by the Australian Securities and Investments Commission (ASIC), one of the government agencies that makes delegated legislation. If it makes a legislative instrument, ASIC said, it must not only register the instrument when it is made, but first:
engage in appropriate consultation, … explain in an Explanatory Statement the justification for making the instrument, the instrument is subject to disallowance (repeal) by either House of Parliament during a disallowance period and the instrument will expire by operation of law after 10 years (unless earlier repealed or earlier ceasing to have effect according to its terms).
16.16 The requirement that legislative instruments be published on a public register was a major development made by the Legislative Instruments Act, and helps provide for an open and accountable delegated legislation process.
16.17 There are also limits on incorporating other instruments or writings in delegated legislation, although this is subject to a contrary intention in the enabling Act.
16.18 The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) and the Senate Standing Committee on Regulations and Ordinances (Regulations and Ordinances Committee) both consider whether an Act of Parliament inappropriately delegates legislative power to the executive. The Regulations and Ordinances Committee in particular scrutinises delegated legislation to ensure ‘that it does not contain matter more appropriate for parliamentary enactment’.
16.19 The tabling, disallowance, and committee scrutiny of delegated legislation are important safeguards and practical way for parliament to control executive lawmaking.
16.20 Common law principles may also provide additional safeguards. For example, although a statute may provide for the sub-delegation of legislative power, if it does not, a delegate generally cannot sub-delegate the power.
This is in addition to the judicial review of delegated legislation, which essentially considers whether the legislation was validly made, often whether it is within power.
Australian Securities and Investments Commission, Submission 74. See Legislative Instruments Act 2003 (Cth).
Legislative Instruments Act 2003 (Cth) pt 4.
Ibid s 14.
Parliamentary committees are discussed in Ch 2.
Senate Standing Order 23(3)(d).
‘I have found no reason for concluding that Parliament may not, in authorizing subordinate legislation, confer power to authorize the making of regulations or by-laws not inconsistent with the legislation which Parliament has directly authorized’: Esmonds Motors v Commonwealth (1970) 120 CLR 463, 477 (Menzies J). See also Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 3rd ed, 2005) [23.4].
‘The broad principle that a person cannot, without authority, delegate legislative power that has been delegated has been accepted with only one or two minor expressions of doubt’: Ibid [23.5]. Pearce and Argument discuss the question of sub-delegation of delegated legislative power in Ibid ch 23.