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

Does the delegated power have any special features?

Legislation should address any special features of the power to make delegated legislation.

 

A delegated power may have certain features that should be explicitly addressed in the empowering Act.

 

  • Inconsistency with primary legislation: Delegated legislation should rarely, if ever, override, suspend or amend primary legislation (empowering provisions that authorise delegated legislation of this nature are sometimes called Henry VIII clauses). Delegated legislation that attempts to do so without express authorisation is at risk of the courts declaring it unlawful and invalid, and it risks facing RRC criticism. In the rare cases where power of this kind is needed, it must be drafted in the most limited terms possible, must be consistent with and support the provisions of the empowering Act, and must be subject to adequate safeguards. The empowering provision should usually also be limited in time (that is to say, a temporary law), as should any regulations made under the power.

 

  • Retrospective effect: Where delegated legislation is intended to have retrospective effect, the empowering provision must authorise that effect in clear and unequivocal terms.

 

  • Sub-delegation: The identity or office of the person to whom the power to make delegated legislation is given is a key factor in the particular legislative scheme. Careful consideration should therefore be given as to whether that person should be able to sub-delegate a power given to them. Where the power to make delegated legislation is able to be sub-delegated, the empowering provision must clearly identify that intent.

 

  • Inconsistency with NZBORA: In the rare cases where delegated legislation is required or permitted to be inconsistent with NZBORA, an express statutory provision authorising this outcome must exist. Despite s 4 of NZBORA stating that inconsistency with NZBORA is not a ground for invalidating an enactment, the courts have held that delegated legislation is invalid if it is inconsistent with NZBORA and the empowering provision does not expressly state that it may be inconsistent.

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