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House of Representatives                                Ch 10                                                 p 398

Delegated legislation

Delegated (also known as subordinate) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Parliament has regularly and extensively delegated to the Executive Government limited power to make certain regulations under Acts. Other forms of delegated legislative authority include:

Delegated legislation can take a multitude of forms and this list is not exhaustive. The Legislative Instruments Act uses the term ‘legislative instrument’ to cover the wide range of delegated legislation, although specific types of delegated legislation are excluded from the definition of legislative instrument and thus from the application of the Act. ⁸

Delegated legislation is necessa ry and often justified by its facility for adjusting administrative detail without undue delay, its flexibility in matters likely to change regularly or frequently, and its adaptability for other matters such as those of technical detail. Once Parliament has by statute laid down the principles of a new law, the Executive may by means of delegated legislation work out the application of the law in greater detail within, but not exceeding, those principles.

It is possible, although rare, for an Act to provide that provisions set out in the Act can be altered by regulation. The Re-establishment and Employment Act 1945 gave the Governor-General power to make regulations providing for the repeal or amendment of, or addition to, any provision of the Act, ⁹ subject to the disallowance provision of the Acts Interpretation Act. ¹⁰ The power thus given was unusual, and one that should not be given except under special circumstances (a war-time limit was placed on any amendments of the Act effected by the regulations). The Attorney-General stated that in this case it was thought that the methods for re-establishment and employment laid down in the Act, being to some extent of an experimental nature, might need urgent revision from time to time in the light of experience, and, for that reason, the regulation-making power had been extended. Moreover, the cessation of operation of any regulation under the Act at the termination of the war would then necessitate an overhaul of the Act and amendments made by regulations. ¹¹ The Re-establishment and Employment Act 1951 repealed the power of amendment by regulation and provided for the repeal of the Re-establishment and Employment Regulations and the continuance of certain amendments. ¹² In more recent times the Administrative Arrangements Act 1987 empowered the Governor-General to make amendments to any Act by regulation if made necessary or convenient as a result of specified new administrative arrangements. However, a ‘sunset’ provision provided that this section of the Act would only be in effect for one year. ¹³

E.g. regulations made under the Christmas Island Act 1958 , the Cocos (Keeling) Islands Act 1955 and the Heard Island and McDonald Islands Act 1953 .

Under the Public Service Act 1999 .

Under the Parliamentary Service Act 1999 .

Under the Remuneration Tribunals Act 1973 .

E.g. under the Environment Protection (Impact of Proposals) Act 1974 .

E.g. rules of court under the Family Law Act 1975 .

E.g. under the Federal Airports Corporation Act 1986 .

Legislative Instruments Act 2003 , ss. 6-7.

Re-establishment and Employment Act 1945 , s. 137.

Acts Interpretation Act 1901 , s. 48.

See Senate Standing Committee on Regulations and Ordinances , 6th report , S.1 (1946-48) 4.

Re-establishment and Employment Act 1951 , ss. 3, 13.

Administrative Arrangements Act 1987 , s. 20(2).