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Delegated Legislation: An Explainer

Delegated Legislation: An Explainer

The executive branch of government can sometimes make laws known as delegated legislation. Find out more about it here.

5th November 2020
Reading Time: 2 minutes

What is delegated legislation?

The government in Australia operates under a separation of powers. Accordingly, under this system, the courts, the parliament, and the executive function separately. While lawmaking, in this system, falls under the role of the parliament, the executive branch of government can sometimes make laws, known as delegated legislation or subordinate legislation, with the authorisation of the parliament. The authorisation of parliament comes in the form of a section in an act of parliament, which grants the executive specific powers to make subordinate laws under that act. Delegated legislation comes under many names and has many forms. The Australian Parliament House website lists some forms of delegated legislation.

  • regulations
  • ordinances
  • determinations
  • orders and rules
  • by-laws
  • standards
  • principles
  • guidelines
  • declarations
  • notices
  • plans of management
  • approvals

For example, the public health orders of NSW that are currently in operation in response to COVID-19 are pieces of delegated legislation. The NSW Minister for Health and Medical Research makes the orders under section 7 of the Public Health Act 2010 (NSW), which grants the authorisation of parliament.

Requirements and restrictions

When laws are made by parliament, they are debated by members of parliament, who are the democratically elected representatives of the population. This debate happens within the usual long lawmaking process. However, the executive can make delegated legislation without the same level of democratic scrutiny. While this quickens the lawmaking process and makes it more flexible, it also leads to a greater potential for problems to arise. Therefore, executive lawmaking must comply with certain requirements or restrictions.

Sunset Requirements

One such restriction is sunsetting. Sunsetting causes the law to operate only for a certain period of time as opposed to indefinite operation. For example, section 50(1) of the Legislation Act 2003 (Cth) repeals national subordinate laws after 10 years of operation. Consequently, the executive must review and remake the rules regularly.

Public Requirements

Additionally, the executive must consult the public regarding their proposed law. However, failing to consult the public regarding a law will not invalidate the law. Be that as it may, the public will still have access to the law and have opportunity to critique it, as the executive must still register the law, making it publicly available, before it can operate.

Parliamentary Requirements

Furthermore, the executive must table the law before parliament after it registers the law. Significantly, this gives parliament the opportunity to scrutinise the proposed subordinate law. While the process of scrutiny may not be as rigorous as the process for regular legislation, it is still significant. As a result of the tabling, if the parliament dislikes the proposed law or a part of the law, it can move to disallow the whole or part of the law. If the motion is successful, the parliament effectively abolishes the part in question. There are also parliamentary committees that have the function of scrutinising proposed subordinate legislation from a lawmaking (rather than policy) perspective. For example, at the national level, the Senate Standing Committee for the Scrutiny of Delegated Legislation has this role.

Challenging Delegated Legislation

The validity of executive lawmaking can be challenged in courts. There are several bases by which you can make your case. These include:

  • Not fulfilling the parliamentary requirements discussed above
  • Not complying with the requirements, exceeding the scope of the authority or purpose, or failing to be reasonably proportionate to the purpose of the legislation that authorised it
  • Inconsistency with other existing law
  • Uncertainty in how it is worded or how it operates
  • Trying to further delegate the power given by the original law

If you are thinking of challenging a piece of subordinate legislation, then it is important to consult an administrative lawyer.

Alex Cheng

Alex is a Legal Tech Intern at Lawpath working as a part of the content team. He is currently studying a Juris Doctor at the University of Technology Sydney. He is interested in how design and technology can help improve the experiences of legal practitioners and their clients.