15.11 The ability of a legislature to empower others to make legislation has been described as ‘an essential adjunct to the practice of government’. The ‘modern state depends on reams of delegated legislation’.
15.12 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.
15.13 But when would a delegation of legislative power not be appropriate? Overly wide and uncertain delegations of legislative power may not be appropriate, as suggested by Dixon J’s comments in Victorian Stevedoring, quoted above. Discussing insufficiently specific delegations of power, Morris and Molone cite the following provision in a New Zealand statute:
The Governor-General may from time to time, by Order-in-Council, make such regulations … as appear to him to be necessary or expedient for the general purpose of this Act and for giving full effect to the provisions of this Act for the due administration of this Act.
15.14 For all intents and purposes, Morris and Molone write, this section grants the executive ‘a free hand to legislate to implement any policy it liked, provided that the regulation carrying the policy could be linked with maintaining prices’.
15.15 Although many laws delegating legislative power may be justified, the ALRC invites submissions identifying inappropriate delegations of legislative power, and explaining why these delegations are not appropriate.
Pearce and Argument, above n 4, [12.3].
George Winterton, Winterton’s Australian Federal Constitutional Law: Commentary and Materials (Lawbook Company, 2013) [3.500].
Pearce and Argument, above n 4, [1.9]. Similar and other reasons justifying delegated legislation were set out in the ‘Report of the Committee on Ministers’ Powers (Donoughmore Committee)’ (United Kingdom, 1936). See Caroline Morris and Ryan Malone, ‘Regulations Review in the New Zealand Parliament’ (2004) 4 Macquarie Law Journal 7, 9.
Economic Stabilisation Act 1948 (NZ) s 11(1).
Morris and Malone, above n 13, 11.