17.1 Under the constitutional doctrine of the separation of powers, parliaments make law, the executive administers and enforces the law, and the judiciary adjudicates disputes about the law. The doctrine is reflected in the structure of the Australian Constitution. But the separation between legislative and executive power is not as clear as some might imagine. For one thing, in Australia, members of the executive (the Cabinet and other government ministers) are also members of the legislature.
17.2 From the separation of powers doctrine, and from the principle that it is Parliament’s role to make laws on important matters of policy, may be derived the principle that legislative power should not be inappropriately delegated to the executive.
17.3 Laws that have a significant impact on rights and liberties, and laws creating offences with high penalties, should usually be in primary, not delegated, legislation. More generally, wide and vague delegations of legislative power undermine the separation of powers doctrine by allowing those who enforce the law to also make the law.
17.4 Delegating legislative power to the executive is now commonplace and is said to be essential for an efficient and effective government. Parliament delegates such power not only to government ministers, but also government agencies such as the Australian Taxation Office and the Australian Securities and Investments Commission (ASIC).
17.5 Given the quantity of delegated law in Australia, careful and ongoing scrutiny—built into the law making process—may be the most suitable way to limit inappropriate delegations of legislative power. This chapter includes various examples of delegations of legislative power, but does not single out particular delegations as inappropriate.
17.6 There are various guides and processes in place to remind law makers about when laws should be in primary rather than delegated legislation. There is guidance in the Legislation Handbook and scrutiny by parliamentary committees. There are also procedures that enable either House of Parliament to ‘disallow’ (repeal) most delegated legislation soon after it has been passed.
17.7 This chapter is concerned with laws that delegate legislative power, rather than with laws that give ministers and government agencies executive power. There may be no bright line between legislative and executive power, but the distinction is ‘essentially between the creation or formulation of new rules of law having general application and the application of those general rules to particular cases’. Creating new rules of law of general application is traditionally the role of Parliament.
Chapter I of the Constitution is entitled ‘The Parliament’; Chapter II, ‘The Executive Government’; and Chapter III, ‘The Judicature’.
There are many types of delegated legislation, including regulations, ordinances, rules, public notices, proclamations, local authority by-laws and specific decrees.
See Ch 3.
Minister of Industry and Commerce v Tooheys Ltd (1982) 60 FLR 325, 331. In the Legislative Instruments Act 2003 (Cth), an instrument is taken to be of a ‘legislative character’ if: ‘(a) it determines the law or alters the content of the law, rather than applying the law in a particular case; and (b) it has the direct or indirect effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right’: Legislative Instruments Act 2003 (Cth) s 5(2) (emphasis added).