A constitutional principle

15.1       Under the constitutional doctrine of the separation of powers, parliaments make laws, the executive administers or enforces laws, and the judiciary adjudicates disputes about the law.[1] But these powers are not as separate and the distinctions 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.

15.2       Nevertheless, from the separation of powers doctrine[2] may be derived the principle that legislative power should not be inappropriately delegated to the executive. Although it is common for parliaments to delegate the power to make certain laws to the executive—not only government ministers, but also government agencies—this chapter is about when this would not be appropriate.[3] It briefly discusses the source and rationale for this aspect of the separation of powers doctrine and how the principle is protected from statutory encroachment. The ALRC calls for submissions on two questions.

Question 15–1          What general principles or criteria should be applied to help determine whether a law that delegates legislative power to the executive is justified?

Question 15–2          Which Commonwealth laws unjustifiably delegate legislative power to the executive, and why are these laws unjustified?

15.3       While delegating legislative power to the executive is commonplace and said to be essential for an efficient and effective government, some laws are more properly made by Parliament. Professor Denise Meyerson has written:

we know that the legislative and executive branches are closely connected in a parliamentary system of government and we also know that for reasons of practical necessity it is impossible to confine the executive to the performance solely of executive tasks. But this does not mean that the ideal of dividing legislative and executive power is altogether illusory. On the contrary, it is clear that 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.[4]

15.4       The primary arguments directed against the use of delegated legislation are:

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.[5]

15.5       Although it is not clearly a right, freedom or privilege itself, the principle that legislative power should not inappropriately be delegated to the executive may be an important way of protecting other rights, freedoms and privileges. MJC Vile said the separation of powers doctrine (which supports the principle discussed in this chapter) was ‘essential for the establishment and maintenance of political liberty’.[6]