17.44 Some concerns about delegated legislation may be addressed by the procedures that must be followed in making the legislation, particularly since the enactment of the Legislative Instruments Act 2003 (Cth). These safeguards are designed to allow Parliament to oversee the making of delegated legislation, to scrutinise it through committees, and to repeal laws that Parliament considers should not have been made.
17.45 The requirement that legislative instruments be published on a public register was a major development introduced by the Legislative Instruments Act, and helps make the process of making delegated legislation more open and accountable. Another important safeguard is the automatic repeal or ‘sunsetting’ of legislative instruments, usually after ten years.
17.46 There are also limits on incorporating other instruments or writings in delegated legislation, although this is subject to a contrary intention in the enabling Act.
17.47 Parliamentary scrutiny, particularly by committees, is also an important safeguard. The Scrutiny of Bills Committee and the Senate Standing Committee on Regulations and Ordinances (Regulations and Ordinances Committee) both consider whether an Act of Parliament inappropriately delegates legislative power to the executive. Established in 1932, the Regulations and Ordinances Committee in particular scrutinises delegated legislation to ensure ‘that it does not contain matter more appropriate for parliamentary enactment’. The legislative scrutiny process and the role of the parliamentary committees have been called the ‘key mechanisms for ensuring that the Executive does the right thing’.
17.48 Common law principles may also provide additional safeguards. For example, unless the statute provides for the sub-delegation of legislative power, a delegate generally cannot sub-delegate power.
17.49 Further guidance on what are appropriate matters for primary and delegated legislation may be found in the Legislation Handbook. It states that, while it is ‘not possible or desirable to provide a prescriptive list’, the following kinds of matters should be included in primary legislation:
(a) appropriations of money;
(b) significant questions of policy including significant new policy or fundamental changes to existing policy;
(c) rules which have a significant impact on individual rights and liberties;
(d) provisions imposing obligations on citizens or organisations to undertake certain activities (for example, to provide information or submit documentation, noting that the detail of the information or documents required should be included in subordinate legislation) or desist from activities (for example, to prohibit an activity and impose penalties or sanctions for engaging in an activity);
(e) provisions conferring enforceable rights on citizens or organisations;
(f) provisions creating offences which impose significant criminal penalties (imprisonment or fines equal to more than 50 penalty units for individuals or more than 250 penalty units for corporations);
(g) provisions imposing administrative penalties for regulatory offences (administrative penalties enable the executive to receive payment of a monetary sum without determination of the issues by a court);
(h) provisions imposing taxes or levies;
(i) provisions imposing significant fees and charges (equal to more than 50 penalty units consistent with (f) above);
(j) provisions authorising the borrowing of funds;
(k) procedural matters that go to the essence of the legislative scheme;
(l) provisions creating statutory authorities (noting that some details of the operations of a statutory authority would be appropriately dealt with in subordinate legislation); and
(m) amendments to Acts of Parliament (noting that the continued inclusion of a measure in an Act should be examined against these criteria when an amendment is required).
17.50 It will generally not be appropriate for such laws to be made in delegated legislation. Further, it may also not be appropriate for Parliament to authorise the making of regulations that impose liabilities with retroactive effect. Parliament should also clearly identify the recipient of the delegated power and should generally not authorise sub-delegation.
17.51 Grants of delegated power ought not to be so expressed that it becomes impossible in practice for courts to review the limits of the power. For example, provisions should not give ministers powers to do that which is, in their opinion, ‘requisite or expedient for a broadly framed statutory purpose’.
17.52 The tabling, disallowance, and committee scrutiny of delegated legislation are important safeguards and practical ways for Parliament to control executive law making. If it were thought that legislative power were being inappropriately delegated, consideration might be given to the adequacy of these safeguards, and perhaps to whether the safeguards are ever inappropriately avoided. For example, some statutes exempt legislative instruments from the disallowance or sunsetting provisions in the Legislative Instruments Act 2003 (Cth).
17.53 Further measures designed to limit inappropriate delegations of legislative power were suggested by PIAC, which described parliamentary scrutiny of delegated legislation as, in practice, minimal. For example, it recommended that the Regulations and Ordinances Committee should have a stronger role and that legislative instruments be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It also suggested that the Legislative Instruments Act be amended to include a non-exhaustive list of powers and matters which should not be delegated, unless there is a public interest in doing so.
See Legislative Instruments Act 2003 (Cth); Office of Parliamentary Counsel, Legislative Instruments Handbook (2014). These safeguards are in addition to the judicial review of delegated legislation, which essentially considers whether the legislation was validly made and within power. There are different standards by which the superior courts may determine the validity of statutory instruments. For example, a local authority by-law may be invalidated on the ground that it is unreasonable whereas a regulation within power cannot be so challenged. Different judicial considerations will also apply to a general rule enacted by regulation and a specific order that affects the rights and duties of parties in the particular case. On judicial review more broadly, see Ch 15.
Legislative Instruments Act 2003 (Cth) pt 4.
Ibid pt 6.
Ibid s 14.
For an overview of parliamentary scrutiny, see Ch 3.
Parliamentary committees are discussed in Ch 3.
Senate Standing Order 23(3)(d).
Stephen Argument, ‘Delegated Legislation’ in Matthew Groves and HP Lee (eds), Australian Administrative Law: Fundamentals, Principles and Doctrines (Cambridge University Press, 2007) 142.
Although a statute may validly provide for sub-delegation: ‘I have found no reason for concluding that Parliament may not, in authorizing subordinate legislation, confer power to authorize the making of regulations or by-laws not inconsistent with the legislation which Parliament has directly authorized’: Esmonds Motors v Commonwealth (1970) 120 CLR 463, 477 (Menzies J). See also Pearce and Argument, above n 19, [23.4].
‘The broad principle that a person cannot, without authority, delegate legislative power that has been delegated has been accepted with only one or two minor expressions of doubt’: Ibid [23.5]. Pearce and Argument discuss the question of sub-delegation of delegated legislative power in Ibid ch 23.
Department of the Prime Minister and Cabinet (Cth), Legislation Handbook (1999). This is a guide to making legislation for government departments. See Ch 3.
Ibid 3. See also de Smith, above n 20, 325–28.
de Smith, above n 20, 328. On retrospective laws, see Ch 13.
Public Interest Advocacy Centre, Submission 55. PIAC submitted that much depends on the ‘individual will of parliamentarians to make themselves aware of the potential impact of tabled delegated legislation’: Ibid.
For these and other recommendations, see Public Interest Advocacy Centre, Submission 55; Public Interest Advocacy Centre, Submission 133.