Who makes law besides parliament?
Explain what delegated legislation is, why parliament uses it, and how it is controlled.
What delegated legislation is, why parliament delegates law-making power to other bodies, the forms it takes, and the controls that keep it accountable.
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What this dot point is asking
You must explain what delegated legislation is, the reasons parliament uses it, the forms it takes, and how it is kept accountable.
What delegated legislation is
Parliament cannot pass detailed laws for every situation, so it passes a broad Act and authorises another body to make the detailed rules. This is delegated legislation. The Act that grants the power is called the enabling or parent Act, and it sets the limits within which the delegated rules must stay.
Common forms
Delegated legislation goes by different names depending on who makes it.
- Regulations made by the Governor in Council or the executive, filling in the detail of an Act.
- Rules made by bodies such as courts to govern their own procedures.
- By-laws made by local councils, such as a South Australian council regulating parking, dogs or local nuisances.
Why parliament delegates
There are practical reasons parliament hands over detailed rule-making.
- Saves time. Parliament can focus on broad policy rather than fine detail, freeing the legislative timetable.
- Expertise. Specialist bodies and departments often understand technical detail better than parliament, for example workplace safety standards or pollution limits.
- Flexibility and speed. Regulations can be updated quickly to respond to changing circumstances without passing a whole new Act.
- Local knowledge. Local councils can tailor by-laws to their community's needs.
Controls on delegated legislation
Because the body making delegated legislation is not the elected parliament, controls keep it accountable.
- Parliamentary scrutiny. Committees review delegated legislation, and parliament can disallow it, meaning it can vote to cancel a regulation.
- The enabling Act limits. The rules must stay within the power granted by the parent Act.
- Judicial review. Courts can declare delegated legislation invalid if it goes beyond the power granted (ultra vires) or was made improperly.
- Publication and consultation. Delegated legislation must usually be published, and some requires public consultation, improving transparency.
Strengths and weaknesses
Delegated legislation is efficient, expert and flexible, and it lets the legal system keep pace with technical and local needs. The main concern is accountability: an unelected body is making law, the volume is so large that scrutiny can be incomplete, and the public may be unaware of rules that affect them. The controls above, especially disallowance and judicial review, are what address this concern.
Connection to the rest of the course
Delegated legislation links to the legislative process (the enabling Act is ordinary statute law) and to access to justice and law reform, because flexible regulations are often how governments respond quickly to new problems without waiting for full legislation. Keeping delegated law accountable is part of upholding the rule of law.
Exam-style practice questions
Practice questions written in the style of SACE Board exam questions on this dot point, with worked answer explainers. The year tag is the paper they imitate, not the source.
2018 SACE Stage 21 marksOutline the purpose of the enabling (parent) Act in the making of delegated legislation.Show worked answer →
The enabling (parent) Act is the Act of Parliament that gives a subordinate body - such as a government department, statutory authority or local council - the authority to make delegated legislation. It sets out who may make the rules, on what subject matter, and within what limits, so the delegated law-maker can only act within the boundaries Parliament has granted. Any delegated legislation made beyond those limits is invalid (ultra vires).
2018 SACE Stage 24 marksWith reference to the scenario, explain two possible reasons why parliament delegated power to the executive.Show worked answer →
This is two 2-mark parts: state a reason and explain it (two needed). In the scenario, the Road Traffic Act delegated power over car-parking to local councils.
Local knowledge and responsiveness. A local council understands its own streets and parking pressures far better than the state Parliament, so delegating to councils lets parking rules be tailored to local conditions and changed quickly as those conditions change.
Saving parliamentary time and managing detail. Parliament does not have time to debate the fine detail of parking rules for every street in the state. Delegating this technical, routine and frequently changing detail frees Parliament to focus on broad policy and major legislation.
2019 SACE Stage 26 marksExplain three differences between legislation and delegated legislation.Show worked answer →
Two marks per difference (three needed): state the difference and explain it.
Who makes it. Legislation (statute) is made by Parliament itself - the elected legislature. Delegated legislation is made by a subordinate body (a department, authority or council) acting under power granted by an enabling Act.
The process. Legislation must pass through both Houses and receive royal assent, with debate at each stage. Delegated legislation is made more quickly and with less scrutiny, following the procedure set out in the parent Act rather than the full parliamentary process.
Validity and control. Legislation is valid so long as it is within the Parliament's constitutional power. Delegated legislation is valid only if it stays within the limits of the enabling Act; if it goes beyond them it is ultra vires and can be struck down by the courts, and Parliament can also disallow it.
2019 SACE Stage 220 marks'Delegating law-making power to the executive breaches democratic principles.' Using examples, evaluate this statement.Show worked answer →
A 20-mark "evaluate" needs a contention, balanced argument with examples, and a sustained judgement.
- Arguments that it breaches democratic principles
- Delegated legislation is made by unelected officials and bodies, not by the elected Parliament, so it can be seen as transferring law-making away from the people's representatives. There is less debate and publicity, the volume of delegated law is huge, and citizens (like Ahn in the scenario) can be bound by rules made without notice or direct accountability, weakening the separation of powers.
- Arguments that it does not
- The power comes from an enabling Act passed by the elected Parliament, which sets the limits and can amend or repeal it. Controls preserve accountability: Parliament can disallow delegated legislation, scrutiny committees review it, and courts can strike it down as ultra vires. Delegation is also practically necessary, allowing expert, local and timely rule-making that Parliament could never manage itself.
- Judgement
- A strong answer concludes that delegation does create democratic risks, but because Parliament authorises and controls it and the courts police its limits, it is a justifiable and controlled departure rather than a genuine breach of democratic principles.