Parliaments can delegate (transfer or entrust) their law-making authority to other bodies. These bodies are known as subordinate authorities. They are organisations responsible for providing services and/or regulating a certain area of society. Parliaments create and empower subordinate authorities by passing an enabling act (sometimes called a ‘parent act’ or ‘originating act’). This empowers subordinate authorities to make laws, within the terms and limitations specified by the enabling act. Laws made by a subordinate authority are called delegated legislation. The parliament, of course, retains the sovereign law-making power, so it can easily amend or override any delegated legislation made by a subordinate authority. Parliaments can also redefine the powers of a subordinate authority by amending its enabling act, or abolish the authority by repealing the enabling act. In 2005 the Howard government passed an act of parliament that abolished the Aboriginal and Torres Strait Islander Commission (ATSIC). Its rationale for this was corruption, inefficiency and inadequate management within ATSIC.
A common form of subordinate authority are government departments, which are collectively known as the bureaucracy. These departments are responsible for providing services for the people of Australia by implementing legislation and government policy. There are dozens of government departments in each law-making jurisdiction: Federal, State and Territorial. Some examples of Federal government departments include the Departments of Defence; Education, Employment and Workplace Relations; Health and Ageing; Immigration and Citizenship; and Human Services. Each government department is overseen at least one parliamentary minister and managed by a departmental secretary. Departments are empowered to make regulations, which are a type of delegated legislation.
Another form of subordinate authorities are statutory authorities. These bodies are created by a statute (an act of parliament) but tend to have a more specific function than government departments. The States have statutory authorities such as VicRoads, the RTA and Queensland Transport to facilitate safe and effective use of our roads. The Australian Taxation Office is a Federal statutory authority that oversees the collection of government revenue. Worksafe Victoria and Workcover NSW facilitate and regulate occupational health and safety. Some statutory authorities are formed to oversee, regulate and promote professions, such as the Legal Services Board, the Medical Practitioners Board and the Victorian Institute of Teaching.
Local governments (cities, shires and boroughs) are also delegated some law-making authority by State parliaments. They are empowered to make by-laws or local laws within their municipality. These by-laws allow for better regulation and delivery of services in the area. Common examples of by-laws include building zoning and regulations, parking fines and restrictions, payment of rates, requirements for registration of pets, sanctions for littering and so on. By-laws are generally debated and passed by an elected council, so like parliamentary legislation they have some democratic basis.
Delegated legislation has many advantages:
- It eases the workload of parliament, which does not have the time or the resources to make all law. Sharing law-making power with subordinate authorities is more efficient and cost effective than leaving all laws to the parliament and courts.
- Laws needed in specific and sometimes complex areas can be developed and monitored by people with experience and expertise in those areas. Members of parliament who may not have the expertise or specialist knowledge to pass effective legislation in some areas.
- Laws developed by subordinate authorities are more likely to be based on facts, conditions and necessity. Laws made within a parliament are often based on politics or the ideology of the majority party.
- Parliaments retain the authority to review, amend and abolish delegated legislation, so there is an additional level of review and scrutiny.
There are also disadvantages to delegated legislation:
- Delegated legislation can be considered ‘undemocratic’. Unlike Acts of Parliament, delegated legislation is not raised, debated or passed in a legislature that operates in public view and is both democratically elected and representative.
- There is less public and media scrutiny of subordinate authorities and delegated legislation, than there is of parliament and statutes. Indeed, many citizens are not aware that subordinate authorities can pass delegated legislation.
- There are dozens of subordinate authorities, which means the volume of delegated legislation is vast, complex and difficult to sift through. Unlike legislation it can sometimes be difficult to locate. Because it is developed by experts, it also has a tendency to be complex and to use jargon.
- Because subordinate authorities act independently of each other, sometimes delegated legislation from one may be inconsistent or conflict with that of another.
- Legal challenges sometimes reveal delegated legislation to be ultra vires – that is, formed beyond the legislative power of the creating authority