Non-delegation of power in Australian law
Non-Delegation of Power in Australian Law
What is Non-Delegation of Power?
The non-delegation doctrine refers to the principle that a legislative body (like the Parliament) cannot delegate its essential law-making powers to another entity, especially the executive or administrative bodies, without proper authorization or limits. The principle also applies to administrative decision-makers in terms of limits on their ability to delegate their decision-making powers to others.
In Australia, the doctrine has two important dimensions:
Constitutional Non-Delegation: Parliament must not delegate its legislative power in a way that violates the Constitution.
Administrative Non-Delegation: Statutory decision-makers generally cannot delegate their powers to others unless the statute allows it.
Why is Non-Delegation Important?
Ensures accountability of decision-makers.
Maintains separation of powers.
Preserves legal certainty and transparency.
Prevents unauthorized delegation that could lead to arbitrary decisions.
Key Case Laws on Non-Delegation of Power in Australian Law
1. R v Kirby; Ex parte Boilermakers' Society of Australia (1956) 94 CLR 254
Context: This seminal High Court case established the doctrine of separation of powers in Australia.
Principle: Judicial power cannot be vested in non-judicial bodies, and similarly, certain powers cannot be delegated if they violate constitutional boundaries.
Non-Delegation Aspect: Though focused on judicial power, it set the stage for limits on delegation by establishing boundaries on the nature and exercise of powers.
Impact: Emphasized that delegation must respect constitutional roles.
2. Attorney-General (Cth) v Queensland Co-operative Milling Association Ltd (1920) 28 CLR 129
Context: The High Court addressed whether Parliament could delegate legislative power to the executive.
Principle: Parliament can delegate powers but must provide an intelligible principle or guideline to control the exercise of that power.
Impact: The case accepted some delegation if Parliament provides sufficient guidance, rejecting absolute non-delegation.
Importance: Established the "intelligible principle" test, which governs acceptable delegation.
3. Griffith University v Tang (2005) 221 CLR 99
Context: Concerned whether a university had delegated a statutory power improperly.
Principle: Confirmed that delegation is generally not allowed unless expressly permitted by statute.
Impact: Clarified that administrative decision-makers cannot delegate unless the law authorizes it.
Relevance: Demonstrates limits on administrative delegation, ensuring accountability.
4. Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Context: Decision-making authority regarding mining leases was in question.
Principle: The High Court reinforced that statutory powers must be exercised by the person or body designated unless the statute permits delegation.
Impact: Delegation without express or implied authorization can invalidate decisions.
Significance: Confirms the necessity of explicit statutory power for delegation.
5. Craig v South Australia (1995) 184 CLR 163
Context: Explored limits on delegation and sub-delegation of administrative powers.
Principle: Sub-delegation (further delegation by a delegatee) is generally prohibited unless statute allows.
Impact: Emphasized the hierarchical responsibility in administrative decision-making.
Importance: Protects against unchecked diffusion of power.
6. R v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Context: Concerned whether a decision-maker improperly delegated power to a subordinate.
Principle: Highlighted that delegation without statutory authority is invalid.
Impact: Reinforced that power holders are accountable for their decisions and must personally exercise non-delegable powers.
Relevance: Serves as a warning against unauthorized delegation.
Summary Table of Key Cases
| Case | Principle Established | Impact on Non-Delegation Doctrine |
|---|---|---|
| Boilermakers' Case (1956) | Separation of powers limits delegation | Sets constitutional boundaries on delegation |
| Queensland Co-operative Milling (1920) | Parliament can delegate with intelligible principle | Allows delegation with sufficient guidance |
| Griffith University v Tang (2005) | Statutory powers not delegable without authorization | Limits administrative delegation |
| Minister for Aboriginal Affairs v Peko (1986) | Powers must be exercised by authorized body/person | Invalidates unauthorized delegation |
| Craig v South Australia (1995) | Sub-delegation generally prohibited | Protects hierarchical accountability |
| R v Toohey; Ex parte Northern Land Council (1981) | Unauthorized delegation invalid | Emphasizes personal exercise of power |
Practical Implications
Legislatures must carefully draft laws to specify delegation powers.
Administrators must be cautious not to delegate powers beyond what the statute permits.
Courts scrutinize delegation to prevent dilution of accountability.
Delegation must be accompanied by guidelines or principles to ensure proper exercise of power.
Conclusion
The non-delegation doctrine in Australian law ensures that legislative and administrative powers are exercised responsibly, maintaining accountability and legal certainty. While some delegation is permitted, it must be guided by clear statutory authority and limits.
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