Chapter 15 - Delegated
legislation and disallowance
Executive law-making
The Constitution does not explicitly authorise the
Commonwealth Parliament to delegate power to make laws. However, the High
Court’s decision in Baxter v Ah Way 1910 8 CLR 626 has been
held to support the Parliament’s power to do so. In this case O’Connor J. of
the High Court rationalised the power to make regulations in the following
terms:
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. (Baxter v Ah Way 1910 8 CLR 626 at 637-8)
The essential theory of delegated legislation is that while the
Parliament deals directly with general principles, the executive, or other body
empowered to make subordinate legislation, attends to matters of administration
and detail. As the theory was expressed in 1930 by Professor K.H. Bailey: “It is for the
executive in making regulations to declare what Parliament itself would have
laid down had its mind been directed to the precise circumstances.” (Evidence
to the Senate Select
Committee on the Standing Committee System, PP S1/1929-31, p. 20.)
Other justifications for the use of delegated legislation include
reducing pressure on parliamentary time, and allowing legislation to be made so
as to accommodate rapidly changing or uncertain situations, or cases of
emergency.
Regulations are the
primary form of delegated legislation. Many Acts of Parliament contain a
provision allowing the Governor-General (who exercises this power on the advice
of the ministry) to make regulations “required or permitted” by the statute to
be made or “necessary or convenient to be prescribed for carrying out or giving
effect” to the statute. Many statutes also refer to specific matters to be
prescribed by regulation. Other instruments are made by a variety of executive
and administrative authorities, including ministers, heads of departments and
agencies, and their delegates.
The making of instruments
is governed by statutory provisions contained in the Legislative Instruments
Act 2003 (LIA). The main provisions are that legislative instruments must
be registered in the Federal
Register of Legislative Instruments (FRLI) and laid before each House of the
Parliament within 6 sitting days, and are then subject to disallowance by
either House.
Some instruments are subject to special provisions which vary from
those of the LIA, for example, as to the period for tabling or disallowance.
Some are subject to affirmation by both Houses. Special control provisions of
this kind have occasionally been included in statutes by amendments moved in
the Senate. There are also some instruments which are not subject to tabling
and disallowance, either because they are not legislative in character (that is,
not in the nature of laws) or because they are statutorily exempted from the
tabling and disallowance process, by the LIA or another statute.
The LIA largely replicates the provisions for parliamentary control of
delegated legislation formerly contained in the Acts
Interpretation Act 1901.
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