17.34 There are thousands of legislative instruments currently in force in Australia, covering a wide range of subject matter, including laws about food standards, fisheries, civil aviation, corporations, superannuation, taxation and migration, to name only a few.
17.35 Acts that include delegations of legislative power often do so in terms similar to this provision, from the Atomic Energy Act 1953 (Cth):
The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:
(a) required or permitted by this Act to be prescribed; or
(b) necessary or convenient to be prescribed for carrying out or giving effect to this Act.
17.36 Some provisions like this will set out more fully the types of regulations that may be made. For example, there is considerable detail about what the relevant regulations may do in s 63 of the Therapeutic Goods Act 1989 (Cth).
17.37 Sometimes a provision in an Act delegating legislative power is expressed broadly and there is little substantive law in the primary legislation. This is sometimes called ‘skeleton’ legislation—the bare bones are in the primary legislation, but most of the law is in the delegated legislation. This arrangement has often been criticised. Pearce and Argument cite the Carbon Credits (Carbon Framing Initiative) Act 2011 (Cth) and related Acts as an example, although there are many other such Acts. The Senate Standing Committee for the Scrutiny of Bills (Scrutiny of Bills Committee) said in 2012 that ‘framework’ bills were becoming increasingly prevalent and that ‘important information’ should be included in the primary legislation, ‘unless there is a principled reason for including it in delegated legislation’.
17.38 Important questions of policy, particularly when they affect individual rights, are often considered inappropriate subject matter for delegated legislation. The Law Council expressed concern about a new provision to be inserted into the Migration Act 1958 (Cth), under which a person may be required to provide ‘personal identifiers’ for any purposes under the Act or the Migration Regulations 1994 (Cth). The Law Council said that significant matters such as this should instead be set out in primary legislation, not in regulations:
the power to prescribe both a purpose for which personal identifiers may be collected and the collection of biometric data via regulation raises the potential for the scheme to go beyond the initial intention of the Bill and the Migration Act, without adequate parliamentary scrutiny. Permitting changes to the purposes of collection of biometric data by regulation can result in significant incursions into privacy, while escaping general public awareness.
17.39 Offence provisions generally belong in primary legislation, particularly where the penalties for infringement are high. For example, s 30B of the National Credit Code allows for the making of certain regulations concerning credit card contracts, including for offences and civil penalties against the regulations. Although there are limits in the Act on the offences and penalties, the Scrutiny of Bills Committee said the ‘penalties which may be imposed by regulation are significant and it is unclear why the offences and requirements cannot adequately be specified in the legislation which will be considered in detail by Parliament’.
17.40 ‘Henry VIII clauses’ are another type of delegation of legislative power that is considered inappropriate. These allow delegated legislation to amend the primary legislation. The Scrutiny of Bills Committee often comments on such provisions. In 2009, for example, the Committee noted the large number of Henry VIII clauses in the National Consumer Credit Protection Bill 2009—so many in fact that it was ‘not possible to provide commentary in relation to all of them’. The relevant Minister defended the arrangement, telling the Committee that the Government needed to ensure that there was ‘adequate flexibility in the new arrangements to ensure the smooth transition to a national credit regime’. Section 35A of the Fair Work Act 2009 (Cth), which relates to the geographical application of the Act, is another example.
17.41 Government agencies and regulators will sometimes be given the power to make delegated legislation. The Commissioner of Taxation and ASIC, for example, both have statutory powers to make certain rules and regulations. For example, under the Income Tax Assessment Act 1936 (Cth), the Commissioner of Taxation may determine by legislative instrument which taxpayers are required to lodge an income tax return. Under A New Tax System (Goods and Services Tax) Act 1999 (Cth), the Commissioner of Taxation may make certain determinations in relation to how much Goods and Services Tax is payable on taxable importations.
17.42 ASIC also has the power to make delegated legislation, and this includes the power to modify certain provisions in the Corporations Act 2001 (Cth), including as they apply to specified classes of people—until recently, called ‘Class Orders’. Although these are not strictly speaking Henry VIII clauses, it has been said that ASIC can essentially re-write parts of the Act. Professor Stephen Bottomley has noted that corporate regulators need discretionary powers, given that the ‘financial and commercial context in which corporations operate is complex and fast-changing’, and statutory modifications via Class Orders are ‘beneficial to the flexible regulation of the corporate and finance sector’.
17.43 However, ASIC’s law making powers may be unique among Australian federal regulatory agencies and corporate regulatory agencies elsewhere. One danger of giving ASIC powers to modify the law, with relatively little specific legislative guidance, Bottomley writes, is that it may reinforce ‘the appearance of a system in which the regulator can make rules of wide application that bypass the process of substantive public scrutiny and accountability that can be applied to statutory rules’. For example, there appears to be no legal requirement that ASIC must consult stakeholders before making a Class Order. Bottomley discusses these dangers and proposes some improvements to the way laws can be changed by ASIC Class Orders. The principle underlying these proposals is that ‘legislative change should be done by and through Parliament’, largely because Parliament is ‘visible and publicly accountable’.
Atomic Energy Act 1953 (Cth) s 65.
This is also called ‘coat-hanger’ or ‘framework’ legislation.
See Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Final Report—Inquiry into the Future Role and Direction of the Senate Scrutiny of Bills Committee (May 2012) ch 5; Pearce and Argument, above n 13, 121–123.
Pearce and Argument, above n 13, 122.
Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Final Report—Inquiry into the Future Role and Direction of the Senate Scrutiny of Bills Committee (May 2012) 35.
The Migration Amendment (Strengthening Biometrics Integrity) Act 2015 (Cth) inserts s 257A into the Migration Act 1958 (Cth). At November 2015, the relevant provision of the amending Act had not commenced.
Law Council of Australia, Submission 140.
National Consumer Credit Protection Act 2009 (Cth) sch 1 s 30B(2).
Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, Alert Digest No 4 of 2011 47.
The first Henry VIII clause was in the Statute of Proclamations 1539: ‘The King for the Time being, with the advice of his Council, or the more Part of them, may set forth Proclamations under such Penalties and Pains as to him and them shall seem necessary, which shall be observed as though they were made by Act of Parliament.’ This in effect authorised the King to make law on any subject by proclamation without the consent of Parliament. Legislation by proclamation was one of the main issues of contention that led to the Revolution of 1688 and the enactment of the Bill of Rights 1689, which denied the remaining royal claims to legislative prerogatives to suspend laws, grant dispensation from law and to impose taxes.
Senate Standing Committee for the Scrutiny of Bills, Parliament of Australia, 10th Report of 2009 (September 2009) 370.
Bannister et al, above n 35, 116.
Income Tax Assessment Act 1936 (Cth) s 161.
A New Tax System (Goods and Services Tax) Act 1999 (Cth) ss 13–20(3).
See, eg, Corporations Act 2001 (Cth) ss 283GA(1)(b), 601QA(1)(b), 601YAA(1)(b). For a complete list, see Stephen Bottomley, ‘The Notional Legislator: The Australian Securities and Investments Commission’s Role as a Law-Maker’ (2011) 39 Federal Law Review 1, 6. Not all Class Orders modify the Act.
Bottomley, above n 56, 2.