Delegating law-making powers
This is a single section from Chapter 14. Read the full chapter here.
Is the matter appropriate for secondary legislation?
Legislation should not delegate a power to make secondary legislation in respect of matters that are more appropriate for an Act.
As a general rule, matters of significant policy and principle should be included in an Act. Secondary legislation should generally deal with minor or technical matters of implementation and the operation of the Act. However, there are difficult choices on the continuum between significant policy and technical detail.
Some matters, such as those that affect fundamental human rights in a significant way, are clearly appropriate only for an Act. However, the decision will not always be clear-cut, and some matters may be appropriate for both primary and secondary legislation. Secondary legislation often involves some policy, but this should be at a lower level than the policy in the Act.
The following matters should generally (or in some cases always) be addressed in primary legislation:
- matters of significant policy;
- matters significantly affecting fundamental human rights;
- the creation of significant public powers such as search and seizure or confiscation of property;
- the granting or changing of appeal rights;
- variations to the common law (especially when a common law right is to be entirely taken away, or replaced, by legislation);
- the creation of serious criminal offences and significant penalties;
- the authorisation of a tax, borrowing money, or spending of public money;
- the creation of a new public agency; and
- procedural matters if they, in effect, set the fundamental policy of a legislative scheme.
Most of the items above are subsets of the basic idea that significant policy should be in an Act. Although “significance” will vary from case to case, some indicators are that the policy answers the key questions in the problem addressed by the legislation, that the policy has the potential to give rise to wide-spread public interest or controversy (whether political or otherwise), or that (without this policy decision being made) it would be otherwise unclear what the overall implications of the Bill are.
The following matters should also generally be addressed in an Act but in limited circumstances (as discussed further below) may also be appropriate for secondary legislation:
- amendments to another Act; and
- retrospective changes to the law.
The following are examples of subject areas that may be appropriate for secondary legislation:
- the mechanics of implementing an Act, such as prescribing fees, the format and content of documents, or certain lower-level procedures;
- large lists and schedules of minor details;
- technically complex matters;
- commencement dates;
- subject matter that requires flexibility or updating in light of technological developments in an area;
- material required to respond to emergencies or other matters requiring speedy responses; and
- material that requires input from experts or key stakeholders.
It is not appropriate to empower secondary legislation that involves significant policy:
- to fill any gaps in an Act 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 in Parliament;
- solely to speed up a Bill’s passage through Parliament; or
- simply to follow a past practice of using secondary legislation on that subject.