Protections from statutory encroachment

Australian Constitution

15.6       The Australian Constitution does not expressly authorise the Commonwealth Parliament to delegate power to make laws, but nor is it expressly prohibited.

15.7       The High Court’s decision in Baxter v Ah Way (1910) has been held to support the Parliament’s power to delegate power. In this case O’Connor J stated that:

Now the legislature would be an ineffective instrument for making laws if it only dealt with the circumstances existing at the date of the measure. The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases, and, therefore, legislation from the very earliest times, and particularly in more modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to which it shall be applied.^[7]

15.8       In Victorian Stevedoring and General Contracting Company Proprietary Limited v Dignan (1931), Dixon J noted the ‘logical difficulties of defining the power of each organ of government, and the practical and political consequences of an inflexible application of their delimitation’.^[8] Dixon J went on in that case to say that Roche v Kronheimer (1921)^[9] decided that

a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law.^[10]

15.9       Dixon J suggested when a delegation of legislative power may not be valid:

This does not mean that a law confiding authority to the Executive will be valid, however extensive or vague the subject matter may be, if it does not fall outside the boundaries of Federal power. There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity of an Act creating a legislative authority.^[11]

15.10   Whether constitutionally valid or not, a ‘wide’ and ‘uncertain’ delegation of legislative power, some would argue, will not be appropriate.