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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