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Delegating law-making powers to the executive
This is a single section from Chapter 13. Read the full chapter here.
Is the delegated legislation subject to appropriate safeguards?
All delegated legislation should be subject to an appropriate level of scrutiny, publication and review.
What is considered an appropriate level of safeguards will increase with the significance of the delegated power. Each safeguard imposed will increase the complexity of the process, increasing the time and cost required to produce delegated legislation.
All delegated legislation should generally be subject to RRC scrutiny and judicial review.
- Regulations Review Committee scrutiny: The RRC will scrutinise all regulations regardless of their form.
- Judicial review: In contrast to primary legislation, delegated legislation may on many grounds be challenged in the courts and declared invalid on judicial review. Legislation should not restrict a right of access to the courts to challenge delegated legislation (see Chapter 25).
The form and substance of delegated legislation may trigger some further safeguards.
- Publication: Instruments that fall within the definition of “legislative instruments” in s 4 of the Legislation Act 2012 will trigger the publication requirements in the Legislation Act 2012. If the delegated legislation does not fall within this definition, the legislation must make it clear how the instrument will be made public. This can be achieved by stating in the legislation that the instrument is a “legislative instrument” (a “deemed legislative instrument”), or by stating alternative publication requirements such as placing it on a departmental website or publishing it in the Gazette.
- Disallowance: Instruments that fall within the definition of “disallowable instruments” (which includes all “legislative instruments”) in s 38 of the Legislation Act 2012 must be presented to the House of Representatives. The House may revoke or amend an instrument in accordance with Part 3 of the Legislation Act 2012.If the delegated legislation does not fall within this definition, the legislation must make it clear whether or not the instrument is a “disallowable instrument” and be tabled under the Legislation Act 2012.
An Order in Council will usually trigger the publication and disallowance procedures in the Legislation Act 2012, and will be subject to Cabinet requirements for consultation and certification by the PCO. Sometimes it will be necessary to consider modifying those procedures if there is a cogent reason for the Order in Council not to be published in the Legislative Instrument series or not to be a disallowable instrument).
It may be appropriate to make the exercise of the delegated power subject to preconditions, such as a consultation requirement or a requirement that the power is exercised only once the recommendation, approval, confirmation, concurrence or consent of another person has been sought or obtained. Other potential preconditions involve requiring that certain things are shown, or certain circumstances exist, before regulations are made.
It may be appropriate to provide that the delegated legislation lapses after a certain period if not confirmed by Parliament.