Examples of laws that delegate legislative power

16.25   It is quite common for Commonwealth legislation to delegate to the executive the power to make certain laws. There are thousands of legislative instruments currently in force in Australia, covering a wide range of subject matter, including laws about food standards, fisheries, civil aviation, corporations, superannuation, taxation and migration, to name only a few subjects.

16.26   Acts that delegate legislative power to the executive often do so in terms similar to this provision, from the Atomic Energy Act 1953 (Cth):

The Governor-General may make regulations, not inconsistent with this Act, prescribing matters:

(a)     required or permitted by this Act to be prescribed; or

(b)     necessary or convenient to be prescribed for carrying out or giving effect to this Act.^[29]

16.27   Some provisions like this will set out more fully the types of regulations that may be made. For example, there is considerable detail about what the regulations may do in s 63 of the Therapeutic Goods Act 1989 (Cth).

16.28   Sometimes a provision in an Act delegating legislative power is expressed broadly and there is little substantive law in the primary legislation. This is sometimes called ‘skeleton’ legislation—the bare bones are in the primary legislation, but most of the law is in the delegated legislation.^[30] This arrangement has often been criticised.^[31] Pearce and Argument cite the Carbon Credits (Carbon Framing Initiative) Act 2011 (Cth) and related Acts as an example, although there are many other such Acts.^[32] The Scrutiny of Bills Committee said in 2012 that ‘framework’ bills were becoming increasingly prevalent^[33] and that ‘important information’ should be included in the primary legislation, ‘unless there is a principled reason for including it in delegated legislation’.^[34]

16.29   Offence provisions are considered particularly important, and generally belong in primary legislation, particularly where the penalties for infringement are high. For example, s 30B of the National Credit Code allows for the making of certain regulations concerning credit card contracts, including for offences and civil penalties against the regulations.^[35] Although there are limits in the Act on the offences and penalties, the Scrutiny of Bills Committee said the ‘penalties which may be imposed by regulation are significant and it is unclear why the offences and requirements cannot adequately be specified in the legislation which will be considered in detail by Parliament’.^[36]

16.30   ‘Henry VIII clauses’ are another type of delegation of legislative power that is considered inappropriate.^[37] These allow delegated legislation to amend the primary legislation. The Scrutiny of Bills Committee often comments on such provisions. In 2009, for example, the Committee noted the large number of Henry VIII clauses in the National Consumer Credit Protection Bill 2009—so many in fact that it was ‘not possible to provide commentary in relation to all of them’.^[38] The relevant Minister defended the arrangement, telling the Committee that the Government needed to ensure that there was ‘adequate flexibility in the new arrangements to ensure the smooth transition to a national credit regime’.^[39] Section 35A of the Fair Work Act 2009 (Cth), which relates to the geographical application of the Act, is another example of a Henry VIII clause.^[40]

16.31   Government agencies and regulators will sometimes be given the power to make delegated legislation. The Commissioner of Taxation and ASIC, for example, both have statutory powers to make certain rules and regulations. For example, under the Income Tax Assessment Act 1936 (Cth), the Commissioner of Taxation may determine by legislative instrument which taxpayers are required to lodge an income tax return.^[41] Under A New Tax System (Goods and Services Tax) Act 1999 (Cth), the Commissioner of Taxation may make certain determinations in relation to how much GST is payable on taxable importations.^[42] There are many other such examples.

16.32   Only a few submissions to this Inquiry commented on inappropriate delegations of legislative power. The Public Interest Advocacy Centre (PIAC) expressed some concern about the practice, particularly in light of what it saw as ‘minimal parliamentary scrutiny’ in practice.^[43] Parliamentary committees often highlight potentially problematic delegations, but PIAC submitted that much depends on the ‘individual will of parliamentarians to make themselves aware of the potential impact of tabled delegated legislation’.^[44]

16.33   Measures to limit inappropriate delegations of legislative power were also suggested by PIAC. For example, it recommended that legislative instruments be subject to judicial review under the Administrative Decisions (Judicial Review) Act 1977 (Cth). It also suggested that the Legislative Instruments Act be amended to include a non-exhaustive list of powers and matters which should not be delegated, unless there is a public interest in doing so.^[45]