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Delegating law-making powers
This is a single section from Chapter 14. Read the full chapter here.
Who will hold the power to make secondary legislation?
The person authorised to make secondary legislation must be appropriate having regard to the importance of the issues and the nature of any safeguards that are in place.
There are no absolute rules as to who should be authorised to make secondary legislation. Traditionally, secondary legislation is often made by the Governor-General on the advice of Ministers, or is made by the relevant portfolio Minister(s). Key factors to take into account are the extent of policy or value judgements required, the expertise required of the person making the secondary legislation, the degree of political accountability required (reflected in the importance of the issues in question), and what safeguards would apply as a consequence (for example, publication, disallowance, Cabinet scrutiny, or drafting and certification by the Parliamentary Counsel Office (PCO)).
The more significant the power, the more likely it is that it should be exercised by the Governor-General in Council. That will ensure that a full range of safeguards will apply (including Cabinet scrutiny and drafting and certification by the PCO). The more technical the exercise of the power, or the more limited the group it applies to, the more likely it is to be appropriate for delegation to another agency (see Chapter 18.2, which also deals with this issue).