LLB358 Administrative Law

Subsidiary (delegated) legislation

Lecture roadmap

1. What is delegated legislation?

2. Issues?
3. Legislative instruments
4. Scrutiny – a summary
5. Disallowance
6. Construction of delegated legislation
7. Judicial review – introduction
8. Challenging delegated legislation via judicial review – some examples and issues
8. Concluding comments
1. What is delegated legislation

Delegated legislation is a form of legislation made by persons or bodies other than

Parliament, who have been given the authority to make such legislation by an Act
of Parliament (which is referred to as “primary legislation”).

Laws of Australia [2.2.10]

1. What is delegated legislation

Also referred to as:

• ‘subordinate legislation’
• ‘legislative instruments’
• by reference to its type e.g. ‘the regulations’; ‘the by-laws’, ‘the management plan’

WA?
In WA delegated legislation is known as ‘subsidiary legislation’
See PtVI Interpretation Act 1984 (WA)
legislation.wa.gov.au
1. What is delegated legislation
‘Enabling Act’ =
• primary legislation or Act OR
• the parent legislation or Act OR
• the principal legislation or Act

NOTE: Subsidiary legislation can only exist in relation to an enabling Act.

• The enabling Act provides for subsidiary legislation to be made and will specify who has the power to do
so under the Act.
• If the enabling Act ceases, so does the subsidiary legislation: Griffin v Resource Management and
Planning Appeal Tribunal and Christie (2010) 19 Tas R 424.
1. What is delegated legislation
Regulations
• Most common type of delegated legislation – made by Ministers

Rules
• Includes court & tribunal rules e.g. Rules of the Supreme Court 1971 (WA); SAT Rules 2004 (WA)

Ordinances
• An authoritative order or law made by a government authority or GG
• E.g. territories

Management plans
• E.g. fisheries; forests

By-laws etc
• E.g. ‘local laws’ made under Local Government Act 1995 (WA)
• ‘self-regulate’ within the LGA
2. Issues with delegated legislation?
High Court has consistently approved parliament’s delegation of legislative power to the
executive:

Wishart v Fraser (1941) 64 CLR 470

Victorian Stevedoring v Dignan (1931) 46 CLR 73

Covid-19 pandemic?
• Huge numbers of legislative instruments -
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Scrutiny_of_Deleg
ated_Legislation/Scrutiny_of_COVID-19_instruments
• E.g., Loielo v Giles (2020) 63 VR 1 (VSC) – Public Health and Wellbeing Act 2008 (Vic)
2. Issues with delegated legislation?
Overwhelming law-making pressure on parliaments
• speed/efficiency?
• ‘such regulations/laws etc as necessary’ to carry parent law into effect

Example:

Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1:
HCA upheld provisions in National Security (Landlord and Tenant) Regulations
1941 (Cth) which prescribed how to set a fair rent for premises but held invalid two
regs which allowed for retaking possession and eviction from rented premises.
(Emergency responses?? Look at the date)
2. Issues with delegated legislation?
Changes over time?
See: Baxter v Ah Way (1910) 8 CLR 626 on the need for members of parliament to
‘project their minds into the future’ (at 637)

But argument remains re how much delegated legislation is too much?

See: T Wright, ‘Delegated Legislation and Emergency Rule-making in Australia’

(2021) 28 AJ Admin L 44 (My unit readings)

 e.g. at 44-45: 2019-20 saw 1778 legislative and notifiable instruments registered
by Cth OPC.
2. Issues with delegated legislation?
BUT… philosophical and legal question remain…
• Separation of powers?
• How and where and when to set limits?
• What would those limits look like?
• Are current limits sufficient to ensure accountability and transparency?

i.e. Problems of timely and constructive scrutiny – concern that delegated

lawmaking is actually misused by executive to bypass scrutiny?

Brainteaser: should the exercise of discretion (decision) to create delegated

legislation be open to challenge via judicial or merits review??
3. ‘legislative instruments’
Legislative Instruments Act 2003 (Cth) s 5 definition: is the instrument ‘legislative
in character’

Legislation Act 2003 (Cth)

(renamed and amended in 2016)

NOTE: WA equivalent of the Legislation Act is Part VI Interpretation Act

3. ‘legislative instruments’
Summary of major changes / improvements:

• s8 contains new general definition (s8(4))

• Requires registration on FRL (legislation.gov.au) – see ss8(3) and s15, s15B and
s15G(1)

• Must be tabled before each house within 6 days of registration – s38(1)

• Disallowance – either house, but in practice only in Senate – s38 and s42
3. ‘legislative instruments’
Legislation Act 2003 (Cth)
“An Act providing for public access to Acts and instruments, for the making, parliamentary scrutiny
and sunsetting of legislative instruments and for the repeal of spent instruments and provisions, and
for other purposes.”

See also s 3 Objects:

S3(a) – establish the FRL
S3(b) – encourage ‘appropriate consultation’
S3(c) – encouraging high standards in drafting
S3(d) – improving public access to Acts and instruments
S3(e) – establishing improved mechanisms for Parliamentary scrutiny of legislative instruments

….and s3A Simplified outline of this Act

3. ‘legislative instruments’
s7 – the simplified outline gives sound summary of key concepts

Generally, the following are legislative instruments under s8:

• an instrument described or declared by a law (including this Act) to be a
legislative instrument;
• an instrument registered on the Federal Register of Legislation as a legislative
instrument;
• an instrument made under a power delegated by the Parliament that
determines the law or alters its content.
3. ‘legislative instruments’
Detail

S 8(3) – an instrument made under delegated power is a LI if it is registered

S 8(4) – an instrument made under delegated power is a LI if:

(b)(i) it determines the law or alters its content in a general sense and not in particular
circumstances or cases AND

(b)(ii) has the direct or indirect effect of affecting a privilege or interest, imposing an
obligation, creating a right, or varying or removing an obligation or right.

Note removal of need for ‘quality’ of ‘legislative character’ s9

3. ‘legislative instruments’
S 8(4) – definition
Follows definition in Minister for Industry and Commerce v Tooheys Ltd (1982) 42
ALR 260 at 265:

Distinction between LIs / delegated legislation AND other executive

instruments/orders etc is essentially the creation or formulation of new rules of law
having ‘general application’ rather than the application of a general rule to specific
cases.

Blurry??
basically, defined by what it ‘does’ rather than what it’s ‘called’.
criticism - ‘determines the law’ and ‘indirect effect’ etc
3. ‘legislative instruments’
Registration:
s15G(1) – must be registered

s12 – instrument commences the day after registration OR on a date

stated in the instrument

NOTE: explanatory statement required under s15G(4)

4. Scrutiny – a summary

• Public consultation – e.g. s17 LA

• Internal executive controls e.g. internal handbooks such as the Legislation Handbook
(Cth)
• Publication – FRL database
• Parliamentary oversight – tabling and disallowance
• Parliamentary oversight – committees e.g.
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_Or
dinances
• Judicial review
• Ombudsman, tribunals, etc – can review whether delegated legislation is valid

See Creyke 6th at 6.1.26

5. Disallowance
Legislation Act Ch 3 Pt 2:
Parliamentary scrutiny of legislative instruments

s36 Simplified outline of this Part:

• OPC presents legislative instrument to parliament within 6 sitting days of the

instrument being registered.

• Disallowance = considered to be automatically repealed under s42

5. Disallowance

Detail:

S37 – ‘The purpose of this Part is to facilitate the scrutiny by the Parliament of
registered legislative instruments and to set out the circumstances and manner in
which such instruments… may be disallowed, as well as the consequences of such
disallowance.’

s38(1) – tabled before Parliament within 6 sitting days of registration – timeframe

issues?

s38(2) – if does not meet ss(1) requirement then is considered repealed immediately
after last day for tabling
5. Disallowance
But how often is disallowance used?:

Often more of a threat than actual disallowance??

See examples….

https://www.legislation.gov.au/Browse/ByTitle/LegislativeInstruments/Di
sallowed
6. Construction / interpretation
The courts are charged with construing legislation, including subsidiary legislation:
separation of powers
see s 13 – must construe in light of the parent Act

Method:
• Is the decision within the power granted in the provision in the subsidiary
legislation?
• Is the provision (that grants the power to make the decision) in the subsidiary
legislation within the power of the parent Act?
7. Judicial review of delegated legislation

Manner of argument: “The decision is invalid because the delegated legislation

that confers the power is itself invalid.

Why?:
• Not within scope of primary legislation
• Not validly made e.g. not tabled; not published
• Content is inconsistent with other statutes
• Constitutional issues e.g. s109 inconsistency
• The instrument is in reality a LI and not another type of executive material
(‘circular’; ‘policy’ etc)
8. Challenging delegated legislation:
example
AIU17 v MIBP (2019) 164 ALD 376; [2019] FCA 520:
Facts: concerned the infamous ‘Form 866 character requirements’

Law: Migration Act s495 must use the ‘prescribed form’  Migration Regulations reg
1.18 prescribes Form 866

Issue: is the Form 866 really a legislative instrument? Applicant argued that it was a
legislative instrument, so the refusal of his visa application was invalid because Form
866 had never been tabled.

Court held that the Form is not a legislative instrument because it does not meet
requirements of s 8 of the Legislation Act.
8. Challenging delegated legislation:
example
Emergencies and scope of powers

Wishart v Fraser (1941) 64 CLR 470:

Facts: virtually all lawmaking was delegated during WWII under s5 National Security
Act 1939-1940 (Cth).

Issue: Case concerned a breach of s10 of the NS Act – involved an argument about
the lawfulness of delegating lawmaking powers during emergency i.e. was the
exercise of power unlawful because the delegated legislation was invalid?

Held that it was a valid exercise of power to delegate law making – even to this extent!
8. Challenging delegated legislation:
example
Language of the powers in the parent Act

Plaintiff S156/2013 v MIBP (2014) 309 ALR 29:

Issue: concerned the validity of the designation of PNG in delegated legislation as a
‘regional processing country’ to send asylum seekers who arrived by boat.

Held that the power was couched in very broad terms and so the decision to
designate PNG was valid.

(Minister needed to be ‘satisfied’ that it was ‘in the national interest’ to designate
PNG).
8. Challenging delegated legislation:
example
Scope?
i.e. is the delegated legislation (or individual provision(s)) ‘intra vires’ the parent
Act?

Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1:

Street preaching case
Section was entitled ‘Roads’ – was in a mall
Was there “sufficient connection” between the legislative provision and the parent
Act?
8. Challenging delegated legislation:
example
"Subject to this Act, a council may make by-laws for all or any of the following
purposes:
...
4 Nuisances and health
I for the prevention and suppression of nuisances;
...

9 Miscellaneous
XVI generally for the good rule and government of the area, and for the
convenience, comfort and safety of its inhabitants."
9. Concluding thoughts
Some side issues around jurisdiction of courts to review for validity
accepted under s39B Judiciary Act (FCA) OR inherent CL jurisdiction of state courts (e.g. SCWA)
but cannot be brought under ADJR Act (needs to be a decision of an ‘administrative character’ not
‘legislative character’).

Tension between courts, legislature and executive about the extent and scope of delegated
legislation:
 separation of powers – courts vs legislature; executive vs legislature etc.

One of the main concerns??

See: The Centre for Public Integrity, Briefing Paper: Executive law-making doubles while
accountability decreases, September 2020 (on LMS)
Next time

We will examine the first of the two main methods of

challenging administrative decision making:

MERITS REVIEW
Thank you