17.23 Despite the fact that Parliament commonly delegates legislative power to the executive, some laws are more properly made by Parliament. Pearce and Argument summarise the primary arguments directed against the use of delegated legislation as:
First, that if the executive has power to make laws, the supremacy or sovereignty of parliament will be seriously impaired and the balance of the Constitution altered. Second, if laws are made affecting the subjects, it can be argued that they must be submitted to the elected representatives of the people for consideration and approval.
17.24 Professor Denise Meyerson has written that although some delegated legislation is clearly necessary in practice, there is a danger:
if we allow the unlimited transfer of legislative power to the executive we run the risk of subverting the rule of law ideal, fundamental to the control of government, that those who carry out the law should be restrained by those who make it.
17.25 The rule against wide delegations of legislative power has been called a major component of the separation of powers doctrine:
When officials can legislate, interpret and execute their legislation, they have the potential to place themselves above the law—for the law becomes in effect whatever they say is the law in the particular case.
17.26 This can threaten many individual rights, freedoms and privileges, such as those considered in this Report. The separation of powers doctrine has been said to be ‘essential for the establishment and maintenance of political liberty’.
17.27 The Law Council of Australia (Law Council) submitted that it should not be ‘left to the executive to determine for itself what powers it has and when and how they may be used’. The rule of law requires that
the law must be readily known, available, certain and clear; and where legislation allows for the Executive to issue regulations, the scope of that delegated authority should be carefully confined and subject to Parliamentary supervision.
17.28 The executive has been said to ‘lack the democratic credentials of Parliament’. The framers of the Constitution vested the legislative power in the Australian Parliament ‘because they thought the people’s elected representatives particularly well-suited to the exercise of the “open-ended discretion to choose ends” which is the essence of the legislative task’.
17.29 The process of executive law making also ‘lacks the transparency and publicity of the parliamentary process’. Delegation therefore ‘reduces the accountability of the exercise of legislative power’.
17.30 In the United States Supreme Court, Rehnquist J explained three functions of the rule against excessive delegation as follows:
First and most abstractly, it ensures to the extent consistent with orderly governmental administration that important choices of social policy are made by Congress, the branch of our Government most responsive to the popular will. Second, the doctrine guarantees that, to the extent that Congress finds it necessary to delegate authority, it provides the recipient of that authority with an ‘intelligible principle’ to guide the exercise of the delegated discretion. Third, the doctrine ensures that courts charged with reviewing the exercise of delegated legislative discretion will be able to test that exercise against ascertainable standards.
17.31 Justice Rehnquist’s third point is that wide delegation diminishes the capacity of courts to limit the misuse of power.
17.32 Some criticism of delegated legislation appears to concern the quality and quantity and law of regulation more broadly, rather than the narrower question of whether such laws belong in primary legislation. David Hamer, for example, has said that delegated legislation is a ‘fertile field for government despotism and bossy interference by bureaucrats’. In any event, this chapter is not about the quality or quantity of regulation, but rather about whether particular types of delegated law should more properly be made directly by Parliament.
17.33 Some of the types of delegation considered less appropriate are highlighted among the examples that follow.
Pearce and Argument, above n 13, 11.
Denise Meyerson, ‘Rethinking the Constitutionality of Delegated Legislation’ (2003) 11 Australian Journal of Administrative Law 45, 52.
Ratnapala and Crowe, above n 12, 124.
MJC Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 1998) 14.
Law Council of Australia, Submission 140.
Meyerson, above n 28, 53.
Judith Bannister et al, Government Accountability (Cambridge University Press, 2014) 112.
Industrial Union Department, AFL-CIO v American Petroleum Institute 448 US 607 at 685–686 (1980). See also Panama Refining Co v Ryan 293 US 388 at 418, ALA Schechter Poultry Corp v United States 295 US 495 at 537 (1935) and Opp Cotton Mills Inc v Administrator 312 US 126 at 144 (1941).
The ‘proliferation’ of delegated legislation is discussed in Pearce and Argument, above n 13, 16.
David Hamer, ‘Can Responsible Government Survive in Australia?’ (Department of the Senate, 2001) 148.