Briefing paper

Delegated legislation: flexibility at the cost of scrutiny?

Publisher
Parliament Parliamentary scrutiny Legislation Conflict of laws New South Wales
Description

Delegated legislation is, in brief, a legislative instrument that Parliament delegates to another body for making. It is commonly used in in all Australian Parliaments, and may include regulations, rules, by-laws and ordinances. Ultimately, to be delegated legislation, an instrument must be ‘legislative’ in nature—it creates a general rule of conduct—rather than ‘executive’, where the law is applied in particular cases.

Use of delegated legislation has long represented a flashpoint for the separation of powers doctrine. The issue boils down to one of balancing legislative flexibility and convenience with the need for comprehensive, effective scrutiny of the laws being made.

Scholars note that the complexity of the modern state makes it impossible for parliaments to properly deal with the voluminous technical detail often present in delegated legislation.

However, the benefits of delegated legislation may come at the cost of reduced—and possibly insufficient—parliamentary scrutiny. This in turn raises the prospect of executive overreach, with some claiming that the liberties granted by the democratic system may be threatened.

This e-brief outlines the purpose of delegated legislation, and how it is used in NSW. It then outlines criticisms of delegated legislation and provides key statistics for both the NSW and Commonwealth Parliaments, before discussing existing scrutiny measures in the NSW Parliament.

Publication Details
Issue:
e-brief 5/2019