#7228 - Subordinate Legislation - Administrative Law

• In the Australia system of separation of powers; the legislature is tasked with making the rules (laws); but it is impracticable for all legislation to be made by them; hence a secondary (subordinate) role is played by the executive

• This subordinate legislation isn’t subject to the same parliamentary/public controls as primary legislation but alternative methods have been devised to ensure that the executive is accountable for the way it makes them:

  • The requirement of executive adherence to statutory procedures

  • Public consultation in subordinate law making

  • The appraisal of subordinate laws by parliamentary committees and;

  • Judicial scrutiny of their validity

• Subordinate legislation is too dependent on proper authorization by an Act of Parliament for validity

• The need for subordinate legislation is generally accepted on grounds of practical necessity but there is always suspicion about executive made laws – especially when their consequences bear upon the community

  • This is accentuated by the fact that subordinate laws are generally express authorization to make rules thought by the executive to be “necessary or convenient” for carrying an Act into effect

“Subordinate legislation – also described as ‘delegated legislation’ - is a legislative rule made by an executive agency pursuant to an authority delegated by the legislature”

• Subordinate legislation generally deals with matters of detail and procedure but this isn’t always so

  • The Transport Workers Act completely delegates the legislative authority regarding the employment of transport workers to the Governor General and in Dignan the High Court upheld its validity on the basis that delegation of legislative authority was an accepted feature of Anglo-Australian legal/constitutional development (Also in Wishart v Fraser (1941))

• There has been a steady increase in the volume of subordinate law and legislative instruments every year (but recent culling programs have reduced this)

• Justification for delegation of laws is generally convenience and executive expediency – it is impossible for parliament to make all legislative rules, and update rules that specify forms, fees etc. Especially when they pertain to industry or trade where frequent changes are essential

• Another concern is that some rules have special relevance to members of particular industries/communities – e.g. University rules are subordinate and allow a higher level of community participation in their formulation

• Two factors have led to the steady growth in the importance of subordinate legislation:

  • The ease with which subordinate legislation can be made

    • Often if opposition exists in the upper house the government may use subordinate legislation as an alternative method – but there is the risk of disallowance in the Upper House

  • Many detailed standards and requirements providing the framework for government regulation of industry require the flexibility of subordinate legislation to respond to industry changes

    • Rules can also be changed in case they conflict with rules in other jurisdictions or closely related industries

    • Consumers/industry can also easily be consulted about changes

      • The disadvantage is that complaints of ‘red tape’’ and regulatory burden are often directed to subordinate laws

• A major issue in subordinate legislation is the use of Henry VIII clauses which allow rules to be made which are inconsistent with other Acts

• Three examples in the UK are:

  • European Communities Act – minister can make regulation amending other regulations to implement any community obligation of the UK/enable any rights enjoyed by UK under treaties

  • Human Rights Act – minister can amend any legislation to the extent it is inconsistent with the ECHR

  • Legislative and Regulatory Reform Act – minister can amend/repeal legislation to:

    • Remove/reduce burden resulting for any person from legislation

    • Ensure regulatory activities are carried out in a transparent/accountable/proportionate and consistent way

      • The restrictions: It is a disallowable instrument, can’t increase taxation, can’t create criminal offences with more than 2 years imprisonment and must be satisfied that the order is proportionate

• David Pannic QC said of the Act:

  • The prime objection is the breadth of power it confers on ministers – allowing them to amend any area of law (even right to a jury trial, offence to insult religion and make them all 18 months jail)

  • Even though the government assured the new powers wouldn’t be used on highly controversial reforms nothing in the Bill confines its use to certain measures

  • There has been until now a general recognition of the necessity of parliamentary process – “it speaks volumes for the ever-increasing arrogance of this Government that it has introduced the Legislative...Bill and does not even understand opposition to it”

• Subordinate legislation come under a number of guises

Regulation – subordinate rules made by governors or the G-G which are general in their application

(e..g Land Management Regulation)

Rule - specifies matters of procedures made by a court (e.g. Supreme Court rules)

By-law – instrument limited to geographic area (e.g. rules made by local government or university)

Ordinance - generally applied to laws made by the GG for the government of a territory

• Others include determinations, orders, directions, notices, plans etc. And at these stages of abstraction there is a blurring of the line between subordinate legislative instruments and other orders and decisions made by the executive

• Minister for Industry and Commerce v Tooheys Ltd [1982] FCA:

The distinction between delegated legislation and administrative instruments is between “the creation or formulation of new rules of law having general application and the application of those general rules to particular cases

Asserts that in general a distinction isn’t needed and the legal issue will be clear but it is important when legislation attaches consequences to instruments of a particular description (e.g. regulations must be tabled in parliament)

• Disallowable Instruments – a category of executive instrument that is required to be tabled in the parliament and may be disallowed by either house, but usually does not have to be published in advance of being made in accordance with rules publication legislation

  • This form is a growing source of rules and their nature makes their study complex with over 115 categories of disallowable instruments existing compared to only 3 in the early 70s.

  • This was partly due to the Legislative Instruments Act 2003 (Cth) that broadened the range of instruments subject to tabling and disallowment

• Beyond disallowable instruments are other statutory instruments which are quasi-legislative in nature” like circulars, codes, guides, evidential rules, polices etc. – they are commonly referred to as “soft law”

  • These rules can be prescriptive and treated as binding with breach giving rise to legal consequences such as penalties and the denial of benefits

• The Legislative Instruments Act 2003 (Cth) made it unnecessary for most of these types of instruments to be tabled in parliament – and hence public scrutiny in their making is unlikely to be systematic

• Whether these should be classified as subordinate legislation or just executive policy instruments is a complex question

• Subordinate legislation is made by an executive officer under the authority of an Act of parliament and is hence subject to the same rules about validity/construction applying to other executive/administrative action

  • But subordinate legislation has attracted special attention because of the sheer volume, its importance in creating legal procedures and obligations and the threat posed to the separation of powers

• The doctrines of statutory construction applied to other statutes are similar; the guiding principle being that of legality. Whether subordinate legislation is validly authorised depends on many things:

Compliance with statutory procedural requirements: these are set out in the Act – e.g. must be tabled or notified to the public. Generally the subordinate rule does not commence operation if this isn’t followed

Substantive statutory authorization: Subordinate rules have to find support in another Act in terms of its power and scope; else it will be ultra vires

Narrow statutory construction – Certain presumptions apply just like with other executive actions. Even if authority is conferred in general terms to make subordinate rules ‘necessary and convenient’ for a purpose it will not...