Chapter 5 - Inappropriate delegation of legislative power
Application of criterion set out in Standing Order 24(1)(a)(iv)
Criterion (iv) requires the Committee to draw the Senate’s
attention to legislation where Parliament’s power to make laws may have been
In considering this criterion, a threshold question sometimes
arises: is the power proposed to be delegated legislative in nature? At times
it is difficult to determine whether the instruments that Parliament empowers
another body or person to make are legislative in character. Such instruments
might be ministerial guidelines, codes of practice, codes of conduct or
practice statements. They are often described as made under a power to direct,
determine, notify, order, instruct, declare, issue or publish.
Examples of provisions that may inappropriately delegate
legislative power include those which:
- enable subordinate legislation to amend an Act of Parliament
(often called a ‘Henry VIII’ clause);
- provide that matters which should be regulated by Parliament are
to be dealt with by subordinate legislation;
- provide that a levy or a charge be set by regulation; or
- give to the Executive unfettered control over whether or when an
Act passed by the Parliament should come into force.
‘Henry VIII’ clauses
An express provision that authorises the amendment of either the
empowering legislation, or any other legislation, by means of delegated
legislation is called a ‘Henry VIII’ clause. The Macquarie Dictionary of
Modern Law defines a ‘Henry VIII’ clause as ‘a clause in an enabling Act
providing that the delegated legislation under it overrides earlier Acts or the
enabling Act itself; so named because of its autocratic flavour’.
Since its establishment, the Committee has consistently drawn attention to such
In Alert Digest No. 13 of 2001,the Committee commented on a provision in the Migration Amendment (Excision
from Migration Zone) Bill 2001, which would authorise a statutory definition
(‘excised offshore place’) to be amended by regulation. The Committee sought
the Minister’s advice as to why it was appropriate that such a significant
definition was able to be amended by regulation.
The Minister for Immigration and Multicultural and Indigenous
Affairs responded that:
The regulation making provisions in the definition of ‘excised
offshore place’ are intended to provide flexibility to deal with circumstances
that may arise in the future.
As is the case with all regulations, any regulations made in
relation to an ‘excised offshore place’ must be tabled in Parliament and may be
subject to a disallowance motion.
The Committee thanked the Minister for this response but
expressed continued concern about the possible effect of the provision.
Notwithstanding that the bill had already been enacted, the Committee continued
to draw this provision to the attention of Senators.
Determination of important matters
The Committee also draws attention to provisions that
inappropriately delegate legislative power of a kind which ought to be
exercised by Parliament alone. One example of such a provision (from a previous
Parliament) was a clause which conferred power on the Executive to define a
word or phrase in an Act. The definition determined the way in which the Act
was to operate.
In such circumstances, the Committee will argue that the defining of the word
or phrase is too crucial a matter to be left to subordinate legislation and
should be undertaken by the Parliament.
In Alert Digest No. 1 of 2002, the Committee commented on
a clause in the Criminal Code Amendment (Anti-hoax and Other Measures) Bill
2002 that proposed to insert a new subsection in the Criminal Code which
would allow for the further definition, by regulation, of dangerous or harmful
substances, the posting of which would be an offence. The Committee noted that ‘this
subsection allows for the creation of a criminal offence by Executive Order –
in a regulation – rather than by primary legislation, which would be debated in
both Houses of the Parliament.’
While noting that the proposed new provision was apparently in
the same form as the existing section 85X of the Crimes Act 1914, the
Committee sought the Minister’s advice as to why it was appropriate that an
offence of such seriousness should be addressed through subordinate, rather
than primary, legislation.
The Attorney-General responded that:
As stated in the Explanatory Memorandum, it is necessary to have
the scope to add items by regulation, because the specific items that are
prohibited for posting with Australia Post may change at short notice,
including where new types of goods come into existence.
The proposed offence replicates the existing offence in
subsection 85X(2) of the Crimes Act 1914, which also relies on the
prescription of dangerous substances in regulations. The current descriptions
of dangerous substances in the regulations are based on the Technical
Instructions for the Safe Transport of Dangerous Goods by Air published by the
International Civil Aviation Organisation, which are updated every two years.
By continuing to allow for the prescription of dangerous substances in
regulations, proposed subsection 471.15(1) will enable the list of dangerous substances
to be revised quickly to ensure consistency with international standards.
The Committee thanked the Attorney-General for this response.
While mindful of the precedent provided by the existing subsection 85X(2) of
the Crimes Act 1914, the Committee continued to express concern that the
bill allowed serious criminal offences to be created or modified by regulation.
The Attorney-General wrote again to the Committee on 15 March 2002, reiterating the position that the provision ‘simply replicates an
equivalent provision in the existing section 85X of the Crimes Act 1914’.
The Attorney-General also emphasised that:
The parameters of the offence are clearly marked out by the
‘dangerous or harmful’ test in the primary legislation, allowing full
Parliamentary scrutiny of the nature of the offence. Regulations made to give
effect to the offence would, of course, be disallowable.
In thanking the Attorney-General
for this further response, the Committee recognised that the proposed new
section 471.15 replicated an existing provision in the Crimes Act and that any
regulations which were made to give effect to the offence would be
disallowable. However, the Committee stated that it ‘continues to have concerns
where serious criminal offences can be created or modified by regulation.’
The Committee concluded that this issue was best left for resolution by the
Senate as a whole. The Senate did not amend the bill to address the
The Committee commented in similar terms on provisions in the
Aviation Transport Security Bill 2003
and the Maritime Transport Security Bill 2003,
both of which included provisions that effectively empowered a member of the
Australian Public Service to create criminal offences. In both cases, the
Committee reiterated its concern that criminal offences could be created by
officials without reference to Parliament, but concluded that ‘this is an issue
best left for resolution by the Senate’.
The Senate did not amend either of these bills to satisfy the Committee’s
Setting the rate of a ‘levy’ by
The Committee has consistently drawn attention to legislation
that provides for the rate of a ‘levy’ to be set by regulation. This creates a
risk that the levy may, in fact, become a tax. It is for the Parliament, rather
than the makers of subordinate legislation, to set a rate of tax.
Providing a statutory maximum rate
or a rate-setting formula
Where the rate of a levy needs to be changed frequently and
expeditiously, this may be better done through amending regulations rather than
the enabling statute. If a compelling case can be made for the rate to be set
by subordinate legislation, the Committee seeks to impose some limit on the
exercise of this power. For example, the Committee will seek to have the
enabling Act prescribe either a maximum figure above which the relevant
regulations cannot fix the levy, or, alternatively, a formula by which such an
amount can be calculated. The vice to be avoided is delegating an unfettered
power to impose fees.
In Alert Digest No. 12 of 2003, the Committee commented on
several provisions in the Offshore Petroleum (Safety Levies) Bill 2003 which
would allow the amount of various levies to be set by regulation, without any
upper limit being specified in the primary legislation. The Committee indicated
that it was of the view that the upper limit of such an impost should be
determined by the Parliament as a whole, and not merely be subject to possible
disallowance, as is the case when the amount is to be fixed by regulation
without an upper limit being set in the bill. The Committee sought the
Minister’s advice as to whether an upper limit on the various levies could be
set by the primary legislation.
The Minister for Industry, Tourism and Resources responded that
the Government did not consider it appropriate, in this case, to set upper
limits on the various levies imposed in the bill as the function of the levies
was purely to recover the costs of the operations of the National Offshore
Petroleum Safety Authority (NOPSA) and such costs could not reasonably be
determined in advance:
The safety case levy and the pipeline safety management plan
levy are measures to recover the costs of NOPSA’s day-to-day regulation of
offshore facilities and pipelines. These levies will recover most of the NOPSA
budget. Until NOPSA is fully operational, it is impossible to ascertain with
any accuracy what its annual costs will be. If an upper limit were set for
these levies, it would need to be high (an upper-estimate) so as to avoid a
situation where NOPSA under-recovers and is unable to fulfil all of its
functions. However, setting a high limit would alarm industry and may lead to
perceptions that NOPSA is over-recovering or operating in a manner which was
The safety investigations levy is a means of recovering the
costs of conducting investigations into serious incidents or occurrences. It is
hoped that there will be no need to charge this levy but should there be a need
for a major investigation into an incident or alleged occurrence, the costs of
conducting it could run into millions of dollars. For this reason, it is
impossible in advance, and particularly without any operational experience of
investigations by NOPSA to draw on, to set an upper limit for this levy.
Furthermore, the Minister indicated that there were a number of
safeguards and constraints in place including:
- provisions in the bill that required the amounts raised by these
levies to be paid into a Special Account, which could only be used to pay
NOPSA’s costs in carrying out its statutory functions;
- that the levies would be set in regulations after the
finalisation of a cost recovery impact statement, which would be developed in
consultation with stakeholders, including industry, and released publicly; and
- annual reporting of NOPSA’s ongoing operations and finances,
which would be open to Parliamentary scrutiny.
The Committee thanked the Minister for this comprehensive
response and noted that it would have been helpful if this explanation had been
including in the explanatory memorandum to the bill.
Commencement by Proclamation:
Office of Parliamentary Counsel Drafting Direction 2003, No. 3
The Committee is wary of provisions that enable legislation to
commence on a date ‘to be proclaimed’ rather than on a determinable date. Where
a bill, or part of a bill, is expressed to commence on Proclamation, the date
proclaimed should be no later than six months after the Parliament passes the
The Committee takes the view that Parliament, as the elected
holder of Federal legislative power, is responsible for determining when the
laws it makes are to come into force. In taking this view, the Committee is
conscious of Drafting Direction 2003, No. 3 issued by the Office of
Parliamentary Counsel. This provides, in part:
- As a general rule, a restriction should be placed on the
period within which an Act, or a provision of an Act, may be proclaimed. The
commencement clause should specify either a period, or a date, after Royal
Assent after which:
- the Act commences, if it has not already commenced by
- the Act is taken to be repealed, if a Proclamation has not been
made by that time.
- If the specified period option is chosen, the period
should generally not be longer than 6 months. A longer period should be
explained in the Explanatory Memorandum.
- If the specified date option is chosen, there is no
restriction on how long commencement may be deferred. However, any substantial
deferrals should be explained in the Explanatory Memorandum, and it may in fact
be sensible to explain the significance of the specified date whenever this
option is used.
- Note that if the “repeal” option is chosen, there is no
limit on the time from Royal Assent to commencement, as long as the
Proclamation is made before the end of the specified period or before the
- Clauses providing for commencement by Proclamation, but
without the restrictions mentioned above, should be used only in unusual
circumstances, where the commencement depends on an event whose timing is
uncertain and generally not within the Government’s control (eg. enactment of
complementary State legislation). Commencement provisions of this kind should
be explained in the Explanatory Memorandum.
Where the rules set out in the Drafting Direction are not
followed, the Committee prefers to see the reason for this departure set out in
the explanatory memorandum. For example, where a six month period is said to be
impractical, the Committee likes to see another period – such as a period of 12
months – specified and a justification provided in the explanatory memorandum,
rather than no period at all.
In Alert Digest No. 16 of 2003, the Committee commented on
the fact that the amendments in Schedule 1 of the Fisheries Legislation
Amendment (High Seas Fishing Activities and Other Matters) Bill 2003 would
commence on a single day to be set by Proclamation, with no limit set by the
legislation within which the amendments must commence in any event. The
Committee noted from the explanatory memorandum that the amendments ‘will give
effect to Australia’s obligations as a party to an international agreement
relating to the conservation and management of fisheries...’ and that the
relevant agreement had ‘entered into force internationally... on 24 April 2003.’
Given the international agreement to which the bill related had already come
into force, the Committee considered that there did not appear to be any reason
for the delayed commencement (beyond the accepted six months after assent) and
sought the Minister’s advice about this matter.
In response, the Minister for Agriculture, Fisheries and
Conservation advised that the amendments in Schedule 1 of the bill, which would
enable Australia to give effect in its domestic law to the obligations it would
have as a party to the Agreement to Promote Compliance with International
Conservation and Management Measures by Fishing Vessels on the High Seas,
could not be enacted until such time as the Executive Council gave its approval
for Australia to become a signatory to the agreement.
The amendments and repeals as set out in Schedule 1 of the Bill
will not take effect, therefore, until a day set by Proclamation to ensure the
legislation does not come into force before the Executive Council has
considered Australia’s acceptance of the Treaty. In the event that the
Executive Council may not have completed its deliberations within 6 months
of the Parliament passing the Bill, it was not considered appropriate for the
legislation to commence on a determinable date or no later than 6 months after
the passage of the Bill.
The Committee thanked the Minister for this response, which
addressed its concerns.
A number of bills considered by the Committee during the 40th
Parliament provided for indefinite commencement on Proclamation because their
application depended on uncertain events – either the passing of complementary
legislation by other jurisdictions (for example the Murray-Darling Basin
Amendment Bill 2002)
or on the entering into force of an international Convention or agreement (for
example the Greater Sunrise Unitisation Agreement Implementation Bill 2004).
These provisions were of a kind contemplated by the relevant Drafting Direction
and, as long as a clear explanation was provided in the accompanying
explanatory memorandum, the Committee noted them without further comment.
Where no explanation for commencement on Proclamation that
exceeded six months was provided in the explanatory memorandum the Committee
continued to comment. For example, in Alert Digest No. 8 of 2004, the
Committee drew the Senate’s attention to a provision in the Australian Energy
Market Bill 2004, which provided that specified clauses in the bill would
commence on Proclamation, but in any event must commence 12 months after
assent. The Committee noted that the explanatory memorandum provided no
explanation for this extended delay and sought the Minister’s advice on this
In response, the Minister for Industry, Tourism and Resources
advised that the bill was part of the Commonwealth, State and Territory
co-operative legislative scheme and should not commence until amendments had
been made to State and Territory legislation. While the Minister hoped that the
State and Territory amendments would be made during 2004, this could not be
guaranteed, thus the need for a delayed commencement period in respect of the
The Committee thanked the Minister for this response, but noted
that it would have been useful if this information had been included in the
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