Constitutional limits

17.8     The Australian Constitution does not expressly authorise the Commonwealth Parliament to delegate power to make laws, nor is it expressly prohibited. The High Court’s decisions in Baxter v Ah Way[5] and Roche v Kronheimer[6]are authority for Parliament’s power to delegate certain legislative powers to the executive. In Victorian Stevedoring and General Contracting Company v Dignan (‘Dignan’s case’), Dixon J said that Roche v Kronheimer decided that

a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law.[7]

17.9     Dixon J noted the ‘logical difficulties of defining the power of each organ of government, and the practical and political consequences of an inflexible application of their delimitation’.[8]

17.10  However, there are two constitutional limits on the power to delegate legislative power. First, Dixon J said that in some cases, there may be ‘such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power’.[9]

17.11  Second, Parliament cannot entirely abdicate its legislative power, for example, by delegating an entire head of legislative power. Evatt J offered an example of such a law: ‘The Executive Government may make regulations having the force of law upon the subject of trade and commerce with other countries or among the States’.[10] Abdication is more likely to be found where the legislative power is delegated to a person or body that is not subject to ministerial responsibility or is not a public authority created by Parliament.[11] The rule that a sovereign legislature cannot abdicate its legislative power has also been recognised at common law in Canada and Australia.[12]

17.12  In many countries, enforceable bills of rights create grounds for challenging the validity of delegated legislation that in Australia are unavailable.

17.13  As discussed below, whether constitutionally valid or not, a wide and uncertain delegation of legislative power may not be appropriate.