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. 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 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. 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.
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.
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’.
MJC Vile formulated a ‘pure doctrine’ of the separation of powers as follows: ‘It is essential for the establishment and maintenance of political liberty that the government be divided into three branches or departments, the legislature, the executive, and the judiciary. To each of these three branches there is a corresponding identifiable function of government, legislative, executive, or judicial. Each branch of the government must be confined to the exercise of its own function and not allowed to encroach upon the functions of the other branches. Furthermore, the persons who compose these three agencies of government must be kept separate and distinct, no individual being allowed to be at the Same time a member of more than one branch’: MJC Vile, Constitutionalism and the Separation of Powers (Liberty Fund, 1998) 13.
The doctrine is reflected in the structure of the Australian Constitution: Ch 1 concerns the Parliament, Ch II the Executive Government, and Ch III the Judicature.
This chapter is primarily concerned with the delegation of power, rather than how such powers are then used.
Denise Meyerson, ‘Rethinking the Constitutionality of Delegated Legislation’ (2003) 11 Australian Journal of Administrative Law 45, 52.
Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (LexisNexis Butterworths, 3rd ed, 2005) [1.10].
Vile, above n 1, 14.