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 and Roche v Kronheimerare 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.
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’.
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’.
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’. 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. The rule that a sovereign legislature cannot abdicate its legislative power has also been recognised at common law in Canada and Australia.
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.
Baxter v Ah Way (1910) 8 CLR 626, 637–8.
Roche v Kronheimer (1921) 29 CLR 329.
The Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan (1931) 46 CLR 73, 101.
Ibid 119. This limitation does not seem to apply in wartime in respect of defence regulations. In Wishart v Fraser, the High Court approved National Security Act 1939 (Cth) s 5, transferring in wartime virtually all the legislative power on defence to the Governor-General in Council: Wishart v Fraser (1941) 64 CLR 470.
The fact that ‘the grant of power is made to the Executive Government rather than to an authority which is not responsible to Parliament’ was treated by Evatt J as a ‘circumstance which assists the validity of the legislation’: Ibid 120.
In Hodge v The Queen (1883) 9 App Cas 117, the Privy Council, while upholding the Ontario legislature’s power to delegate law making power to the executive, was careful not to authorise the abdication of legislative power. In the legislation considered in Commonwealth Aluminium Corporation Pty Ltd v Attorney-General (Qld) (Comalco Case)  Qd R 231 and West Lakes Ltd v South Australia (1980) 25 SASR 389, the State legislatures granted concessions to private companies that, according to the Acts, could not be withdrawn without the agreement of the beneficiary companies. In each case, the State Supreme Court considered the reservations as ineffective for being abdications of legislative power. See discussion of these cases in Suri Ratnapala and Jonathan Crowe, Australian Constitutional Law: Foundations and Theory (Oxford University Press, 3rd ed, 2012) 448–49.