Oversight of delegated legislation by the judiciary
Oversight of Delegated Legislation by the Judiciary
Background
Delegated legislation (also called subordinate legislation or regulations) refers to laws made by an individual or body under powers granted by an Act of Parliament (the enabling Act). Because delegated legislation is made by non-parliamentary bodies (such as government ministers, agencies, or tribunals), there is a risk it may exceed the authority granted or violate legal principles.
The judiciary plays a crucial role in overseeing delegated legislation by reviewing whether such legislation is valid and within the powers conferred by the parent statute. This oversight ensures that delegated legislation does not go beyond the limits set by the legislature (the doctrine of ultra vires) and protects against improper or unlawful exercises of power.
Grounds for Judicial Review of Delegated Legislation
The courts may invalidate delegated legislation if it is:
Ultra vires (beyond the powers granted by the enabling Act)
Inconsistent with the enabling Act or primary legislation
Unreasonable or irrational
Made without proper procedure or consultation when required
Contrary to fundamental rights or principles of natural justice
Case Law on Judicial Oversight of Delegated Legislation
1. R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598
Facts: This case involved the question of whether certain regulations made under the Child Welfare Act were valid. The plaintiffs challenged the regulations as being beyond the authority of the enabling Act.
Decision: The High Court held that delegated legislation must conform strictly to the powers granted by the enabling Act. Any delegation beyond the scope or inconsistent with the Act would be invalid.
Principle: Established the basic principle that delegated legislation must not exceed the powers granted by the parent legislation (the doctrine of ultra vires).
2. R v Burgess; Ex parte Henry (1936) 55 CLR 608
Facts: This case involved the validity of regulations made under the Commonwealth’s quarantine legislation. The regulations were challenged for exceeding the powers granted.
Decision: The High Court emphasized the importance of interpreting enabling statutes narrowly and invalidating any subordinate legislation that goes beyond the scope.
Principle: Reinforced judicial control over delegated legislation and highlighted the importance of statutory interpretation in assessing validity.
3. Attorney-General (NSW) v Quin (1990) 170 CLR 1
Facts: This case concerned the validity of regulations made under the Jury Act in New South Wales. The appellant challenged that the regulations were ultra vires and inconsistent with the Act.
Decision: The High Court confirmed that delegated legislation inconsistent with the enabling Act is invalid. It also highlighted that courts must ensure delegated legislation respects the limits and purposes set out in the Act.
Principle: Stressed the supremacy of the enabling Act and the invalidity of inconsistent delegated legislation.
4. Totani v National Crime Authority (2010) 242 CLR 1
Facts: The case challenged certain regulations and legislative instruments relating to the National Crime Authority, arguing they were beyond the power granted by the enabling Act.
Decision: The High Court reiterated that delegated legislation must be consistent with the enabling statute’s purpose and scope, and it cannot expand the power of the legislature.
Principle: Emphasized that courts will intervene when delegated legislation exceeds or distorts legislative power.
5. Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Facts: The plaintiff challenged a privative clause that sought to limit judicial review of decisions made under the Migration Act, including delegated legislation.
Decision: The High Court held that the Constitution implied limits on the legislature’s power to prevent judicial review, ensuring courts maintain oversight over delegated legislation and administrative decisions.
Principle: Affirmed the role of the judiciary in ensuring delegated legislation is subject to legal scrutiny and not beyond the rule of law.
Summary of Judicial Oversight Principles from Case Law
| Case | Key Principle |
|---|---|
| R v Hickman; Ex parte Fox and Clinton | Delegated legislation must stay within statutory powers (ultra vires). |
| R v Burgess; Ex parte Henry | Narrow interpretation of enabling Acts; validity depends on statutory authority. |
| Attorney-General (NSW) v Quin | Delegated legislation inconsistent with primary legislation is invalid. |
| Totani v National Crime Authority | Delegated legislation must conform to the purpose and scope of the enabling Act. |
| Plaintiff S157/2002 v Commonwealth | Judicial review cannot be ousted by privative clauses; courts maintain oversight role. |
Additional Points
Courts will often interpret enabling legislation strictly to prevent overreach.
Delegated legislation can be quashed if it fails the test of reasonableness or procedural fairness.
The separation of powers doctrine supports judicial oversight as a check against executive overreach.
Privative clauses (attempts by Parliament to restrict judicial review) are scrutinized and often limited by courts to preserve legal accountability.
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