Delegated legislation: Law making by the Executive

Learn how the executive makes laws on behalf of the Parliament and the reasons why Parliament delegates its law making powers.

What is delegated legislation?

Put simply, it is legislation made by the executive government under authority of the Parliament according to an Act. It includes statutory rules, regulations, by-laws, ordinances, orders in council and various other ‘instruments’.

Why do we have it?

⚙️   it is a more efficient way to deal with highly technical and detailed legislation,

⌚    it allows Parliament to spend more time considering substantial matters of policy and principle, and

⚖️   it facilitates regular adjustments to the law, without undue delay.

So how is delegated legislation made?

The power of the executive government to make delegated legislation is conferred by a primary Act, which usually includes the following generic form of words:

‘The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient for carrying out or giving effect to this Act’.

Before any delegated legislation is made, there is a period of public consultation designed to inform the development process and assist the Executive in thoroughly understanding the impacts of the proposed regulation.

Once a regulation has been made, the Governor, on the advice of the Executive, puts a notification in the Government Gazette and on the website stating the date on which the regulation will come into force.

Is there anything wrong with having delegated legislation?

Well, it has been argued that a Parliament’s delegation of its law making power to the executive comes with a risk of reduced scrutiny of legislation by parliament, with the potential of executive overreach.

To address this risk, the Parliament has adopted a range of mechanisms to manage the exercise of delegated legislative power by the executive. These include:

🛠️ the staged repeal of delegated legislation after a certain time, (sunset clauses)

🛠️ review of delegated legislation by parliamentary committees.

But the most powerful tool against executive over-reach is the power for just one House to disallow a statutory rule, causing it to cease to exist from the day it was made. A topic for next week perhaps …