7.3 The institution of Parliament
The definition of fundamental legislative principles found in the Legislative Standards Act 1992 is derived from an understanding of our parliamentary system.
(T)he very concept of representative government and representative democracy signifies government by the people through their representatives (Sir Anthony Mason, then Chief Justice of the High Court, in Australian Capital Television Pty Ltd v Commonwealth (No. 2) (1992) 177 CLR 106 at p. 1387).
The most significant fundamental principle underlying our parliamentary democracy is that sovereign power is exercised on behalf of the people by their representatives in the Parliament. Consequently, legislation must have sufficient regard to the institution of Parliament.
7.3.1 Does the legislation allow the delegation of legislative power only in appropriate cases and to appropriate persons?
The greater the level of potential interference with individuals' rights and liberties, or the institution of Parliament, the greater will be the likelihood that the power should be prescribed in an Act of Parliament and not delegated below Parliament.
Some of the delegations of power in Acts that the Scrutiny of Legislation Committee has expressed concern about are as follows:
- power to affect the operation of an Act, as decided by Parliament, by subordinate legislation made by someone else (see the material on Henry VIII clauses in Chapters 7.3.3 and 7.3.7)
- unduly wide power to fill in legislative gaps by subordinate legislation (see the Scrutiny Committee Annual Report 1995-1996, pp. 15-17, paras 2.25-2.35)
- vague or overgeneralised powers to make subordinate legislation (see Alert Digest 2001/7, p. 16, paras 11-14)
- creation of offences and imposition of penalties, other than minor offences or penalties, by subordinate legislation (see Policy No. 2 of 1996 in Alert Digest 1996/4, pp. 7-8)
- definition of rights of review or appeal by subordinate legislation (see Alert Digest 2002/1, pp. 12-13, paras 11-12).
Other powers that should not be delegated by conferring a power to make subordinate legislation include:
- the power to create a new tax
- the power to confer jurisdiction on higher courts, particularly the Supreme Court.
7.3.2 Does the legislation sufficiently subject the exercise of a delegated legislative power to the scrutiny of the Legislative Assembly?
For the Parliament to confer on someone other than the Parliament the power to legislate as the delegate of the Parliament, without a mechanism being in place to monitor the use of the power, raises obvious issues about the safe and satisfactory nature of the delegation.
The matter involves consideration of whether the delegate may only make rules that are subordinate legislation within the meaning of the Statutory Instruments Act 1992. With few exceptions, this Act ensures that subordinate legislation must be tabled before, and may be disallowed by, the Legislative Assembly.
The issue of whether delegated legislative power is sufficiently subjected to the scrutiny of the Legislative Assembly often arises when power to regulate an activity is contained in a guideline or similar instrument that is not subordinate legislation and therefore is not subject to parliamentary scrutiny (Alert Digest 1996/3, p. 5).
In considering whether it is appropriate that delegated matters be dealt with through an alternative process to the subordinate legislation, the Scrutiny of Legislation Committee has taken into account the following:
- the importance of the subject dealt with
- the practicality or otherwise of including those matters entirely in subordinate legislation
- the commercial or technical nature of the subject matter
- whether the provisions were mandatory rules or merely to be had regard to (see Alert Digests 2002/1, p. 2, para. 10; 2001/8, p. 15, para. 6; 2000/9, p. 24, para. 48; and 1999/4, p. 10, paras 1.65-1.67).
A legislative requirement that instruments that are not subordinate legislation must be tabled in the Legislative Assembly may allay the concern of the Scrutiny of Legislation Committee that subordinate legislation has not been used. However, any government department or agency using this mechanism would need to have in place an ongoing reliable system to ensure the tabling actually happens. The automatic system of tabling subordinate legislation (see Chapter 6.17) was instituted because of inevitable and inadvertent failures to table subordinate legislation.
7.3.3 Does the legislation authorise the amendment of an Act only by another Act?
Henry VIII clauses should not be used. The Scrutiny of Legislation Committee's 1997 report The use of "Henry VIII Clauses" in Queensland Legislation agreed on the following definition of a Henry VIII clause:
A Henry VIII clause is a clause of an Act of Parliament which enables the Act to be expressly or impliedly amended by subordinate legislation or Executive action.
A new Bill sometimes provides for a power to make transitional regulations for matters for which the Bill either does not make provision or does not make sufficient provision. Such a power is intended to provide a mechanism for dealing with unforeseen difficulties that may arise in the transition from the previous legal framework to the new framework to be established under the new Bill. The Scrutiny of Legislation Committee often reviews transitional regulation-making powers against the background of its opposition to Henry VIII clauses. However, the Scrutiny Committee has indicated in Alert Digest No. 10 of 1996 at page 14 that, in the context of urgent Bills, a transitional regulation-making power may have sufficient regard to the institution of Parliament if it is subject to:
- a twelve-month sunset clause
- a further sunset clause on all the transitional regulations made pursuant to the transitional regulation-making power.
The Scrutiny Committee has also expressed the view that the subjects about which transitional regulations may be made should be stated in the relevant Bill (Alert Digests 1997/7, pp. 13-14; 1997/5, pp. 10-11; 1996/10, pp. 13-14; 1996/3, p. 17; and 1996/2, p. 19-20).
The Scrutiny Committee has also identified clauses that delegate power to exempt a person or thing from the operation of an Act as potential Henry VIII clauses. This is because, under the delegation, there may be, effectively, a power to substantially change the Act in its application to a person or thing without reference to the Parliament.
This is particularly so if the clause allows a person or thing to be exempted from all or any provisions of an Act, without further limitation.
In providing flexibility in the administration of an Act through exemptions, the Act should state the purpose of the exemptions and limit them to circumstances so specific that the Parliament may be assured an exemption will be appropriate. A power to exempt should not be included in an Act if an ordinary licensing scheme could achieve the same purpose.
7.3.4 For subordinate legislation, is the legislation within the power that, under an Act or subordinate legislation (the authorising law), allows the subordinate legislation to be made?
Subordinate legislation should be authorised by, and not inconsistent with, the provisions of the authorising law. Case law made by the courts largely covers the field of this topic.
However, two Acts of general application contain important provisions that may affect the making of subordinate legislation.
The Statutory Instruments Act 1992, Part 4, Division 3 contains provisions about statutory instruments. In particular, Part 4, Division 3, Subdivision 2 makes express provision for matters that may be provided for in subordinate legislation.
The Acts Interpretation Act 1954, Part 8 contains provisions that aid in the interpretation of legislation, including, for example, the definitions of commonly used words and expressions in section 36 that apply to subordinate legislation.
7.3.5 For subordinate legislation, is the legislation consistent with the policy objectives of the authorising law?
Even though there may (strictly speaking) be legal power to make particular subordinate legislation, the subordinate legislation should only be made if it is being made to pursue the policy objectives for which the Parliament agreed to pass the authorising law.
The use of a subordinate legislation-making power to make subordinate legislation for a policy objective not anticipated by the Parliament may amount to an abuse of the power.
7.3.6 For subordinate legislation, does the legislation contain only matter appropriate to subordinate legislation?
Although an Act may legally empower the making of particular subordinate legislation, there remains the issue of whether the making of legislation for the matter in question at the lower level of subordinate legislation is appropriate. It must be remembered that the most authoritative maker of legislation is the Parliament, which is elected directly by the community.
An Act's empowering provision may be broadly expressed, so that not every item of subordinate legislation that could be made under it is necessarily appropriate to subordinate legislation in every circumstance that arises.
Also, for example, an empowering Act may have been enacted at a much earlier time under different circumstances to the circumstances applying when the subordinate legislation is made.
See Chapter 7.3.1 for some specific occasions when the use of delegated legislation has been considered dubious.
It should always be remembered that when the Parliament delegates the power to make subordinate legislation, it retains the right to disallow particular subordinate legislation on any ground.
7.3.7 For subordinate legislation, does the legislation amend statutory instruments only?
In its report of November 1998 on the Commissions of Inquiry (Forde Inquiry - Evidence) Regulation 1998, the Scrutiny of Legislation Committee drew attention to the operation of the Statutory Instruments Act 1992, section 7.
Under section 7(1), a statutory instrument is an instrument that complies with both section 7(2) and 7(3). Section 7(2) provides that the instrument must be made under:
- an Act; or
- another statutory instrument; or
- power conferred by an Act or statutory instrument and also under power conferred otherwise by law.
Section 7(3) requires the instrument to be one of the types listed in section 7(3).
The report notes that an Act is not one of the types contained in the list in section 7(3), and further notes that the Acts Interpretation Act (Qld) 1954 provides that in an Act 'amend' includes, for an Act or a provision of an Act, amend by implication. (See p. 4, paras 5.6 and 5.9-5.11 of the report.)
The Scrutiny Committee has consistently expressed the view that a subordinate instrument that amends an Act, whether it be the body of the Act or a schedule to the Act, is inconsistent with the fundamental legislative principle requiring that subordinate legislation has sufficient regard to the institution of Parliament (see the Scrutiny Committee Annual Report 1997-1998, para. 3.8 and the Scrutiny Committee Annual Report 1996-1997, p. 11).
The Scrutiny Committee, in its report The use of "Henry VIII Clauses" in Queensland Legislation, said that if an Act is purported to be amended by a subordinate instrument in circumstances that are not justified, the committee will voice its opposition by requesting the Legislative Assembly to disallow that part of the instrument that breaches the fundamental legislative principle requiring legislation to have sufficient regard for the institution of Parliament.
The report discusses the relationship between Henry VIII clauses and the requirement that subordinate legislation should amend statutory instruments only.
7.3.8 For subordinate legislation, does the legislation subdelegate a power delegated by an Act only:
(a) in appropriate cases and to appropriate persons; and
(b) if authorised by an Act?
Part of the rationale for this issue is to ensure sufficient parliamentary scrutiny of a delegated legislative power. The material under Chapter 7.3.2 is therefore equally relevant here.
When considering whether it was appropriate for matters to be dealt with by an instrument that was not subordinate legislation, and therefore not subject to parliamentary scrutiny, the Scrutiny Committee has taken into account the importance of the subject dealt with and matters such as the practicality or otherwise of including those matters entirely in subordinate legislation (Alert Digest 1999/4, p. 10, paras 1.65-1.67).
7.3.9 Does the legislation in all other respects have sufficient regard to the institution of Parliament?
The Scrutiny of Legislation Committee has consistently taken the approach that the matters specifically listed in the Legislative Standards Act 1992, section 4(4) and (5) are not exhaustive of all matters relevant to the institution of Parliament.
The Scrutiny Committee takes an expansive approach in identifying matters in which the institution of Parliament must be protected.
The Scrutiny Committee has made comment about legislation in relation to the following broad issues:
- whether legislation providing for direct democracy processes such as citizens-initiated referendums erodes parliamentary democracy (Alert Digests 1999/3, p. 5, para. 1.41; and 1998/7, pp. 11-19)
- whether a power to delegate to the executive a power to confer office and other rewards on members of Parliament erodes the Parliament's ability to control its own affairs (Alert Digests 1999/4, para. 8.6-8.13; and 1996/2, p. 4)
- whether restrictions on candidature in elections undermine the institution of Parliament (Alert Digests 2002/3, pp. 9-10; and 2002/1, pp. 18-19, paras 3-14)
- whether national scheme legislation erodes Parliament's sovereign power because it is required of Parliament in compliance with executive agreements made between governments without the agreement of Parliament (see Scrutiny of National Schemes of Legislation, a Position Paper of Representatives of Legislation Committees throughout Australia, October 1996).
Last reviewed: 17 July, 2009
Last updated: 22 July, 2009
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