Justifications for delegating legislative power

17.14  Parliaments have been delegating powers to the executive for some time—in England, possibly for as long as 650 years.^[13] In Australia, delegated legislation has been a major part of the law since colonisation.^[14] Today, far more laws are made under delegation than directly by parliaments.^[15]

17.15  Practical necessity is perhaps the overriding justification for delegated legislation. The ‘modern state depends on reams of delegated legislation’^[16] and therefore the ability of a legislature to empower others to make legislation has been described as ‘an essential adjunct to the practice of government’.^[17] The Public Interest Advocacy Centre (PIAC) submitted that, given ‘the breadth and depth of areas now regulated by government, the ability to flesh out primary legislation in subordinate legislation is a necessary and expedient tool of government’.^[18]

17.16  Pearce and Argument write that the delegation of legislative power is ‘generally considered to be both legitimate and desirable’ in three situations:

• to save pressure on parliamentary time;

• when the legislation would be too technical or detailed; and

• where the legislation must deal with rapidly changing or uncertain situations.^[19]

17.17  Sir Stanley de Smith notes several related reasons to delegate legislative power. ‘Torturous and cumbersome legislation, bulging with minutiae, disfigures the statute book and tends to detract from the prestige of Parliament’.^[20] Where the changes to the law require administrative reorganisation and detailed consultations with affected sectors of the community, the commencement of particular parts of the Act may have to be postponed and left to executive discretion.^[21] Furthermore, it is sensible to allow the responsible minister to amplify the Act by regulations when it is ‘reasonable to suppose that new contingencies (such as special hardship or technological developments) will arise although their exact form cannot be predicted at the date of enactment’.^[22]

17.18  ASIC highlighted the need for delegated legislation in the regulation of corporations and financial services. These sectors are ‘complex and subject to constant innovation’, ASIC submitted, and without delegated legislation, ‘primary legislation would be unable to anticipate and respond in a timely way’.^[23]

17.19  Pearce and Argument write that ‘one of the fundamental justifications for putting something into delegated legislation is that it is something that parliament need not be too concerned about but, rather, is something that the parliament can be relatively comfortable merely keeping a watchful eye over’.^[24] In other words,

‘important’ things—including the intrinsically ‘political’ things—are to be kept to the primary legislation. The delegated legislation is for the detail, for the machinery.^[25]

17.20  It might also be argued that parliamentary sovereignty would be limited to some degree if Parliament could not choose to delegate part of its legislative power.

17.21  In practice, members of Parliament rely heavily on the executive to prepare, draft and scrutinise new laws. The quantity of law made each year alone makes it impossible for individual members of Parliament to read and scrutinise every bill, much less every draft legislative instrument. Discussing delegated legislation in the United Kingdom, Professor P S Atiyah wrote:

For practical purposes statutory instruments are an example of law made by civil servants subject to ministerial control, in much the same way that Acts of Parliament are laws largely made by civil servants subject to parliamentary control.^[26]

17.22  The proportionality principle, which is useful to test limits on many rights, may be less helpful in determining whether a delegation of legislative power is appropriate. For one thing, applied here, the proportionality principle would suggest that delegations of legislative power should be rare and only made when strictly necessary. However, delegating legislative power to the executive is very common and is a widely accepted method of law making, particularly if subject to parliamentary control.