This is a single section from Chapter 13. Read the full chapter here.

Is the matter appropriate for delegated legislation?

Legislation should not authorise delegated legislation to be made in respect of matters which are appropriate for primary legislation.

 

As a general rule, matters of policy and principle should be included in primary legislation. Delegated legislation should deal with technical matters of implementation and the operation of the Act.

While valid reasons do exist for delegating a power to the executive, each decision to authorise the making of delegated legislation should be justified on its own merits.

Some matters, such as limiting fundamental human rights, are clearly appropriate only for primary legislation; but the decision will not always be clear-cut, and some matters may be appropriate for both primary and delegated legislation.

The following matters should ideally (or in some cases can only) be addressed in primary legislation:

 

  • matters of significant policy;
  • matters affecting fundamental human rights;
  • the creation of significant new public powers such as search and seizure or confiscation of property;  
  • granting or changing appeal rights;
  • variations to the common law;
  • the creation of serious criminal offences and significant penalties;
  • authorising the levying of a tax, borrowing of money, or spending of public money;

  • the creation of a new public agency;

  • amendments to another Act;

  • retrospective changes to the law;

  • procedural matters that go to the essence of the legislative scheme.

Delegated legislation should only be authorised when it is necessary to give effect to primary legislation. It is particularly useful in situations where the environment in which the legislation must operate is subject to frequent change or where flexibility is desired for some other reason.

The following may be appropriate for delegated legislation:

  • the mechanics of implementing an Act, fees, format and content of documents, certain lower-level procedures;                      
  • large lists, schedules of minor details, and matters suitable for inflation indexation within identified parameters;
  • technically complex matters;
  • allowing for potential, but as yet unknown, contingencies;
  • a need for flexibility, or regular technical updating;
  • a need to respond to emergencies or other matters that require speedy responses;
  • matters that need to be consulted on before they are finalised or changed.
In limited cases, the setting of the commencement date may be delegated to the executive. Such provisions are likely to face additional RRC scrutiny and, as such, cogent reasons for the delegation must exist. The legislation should also incorporate a provision that the legislation is brought into effect automatically after a set period of no more than one year after its enactment, if not brought into force earlier by Order in Council.

 

It will not be appropriate to authorise delegated legislation:

  • to fill any gaps in primary legislation that may have occurred as a result of a rushed or unfinished policy development process;
  • to avoid full debate and scrutiny of politically contentious matters;
  • solely to speed up its passage through Parliament;
  • that simply follows a past practice of using delegated legislation.

 

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