The Legislative Process and Delegated Legislation: WACE Year 12 Politics and Law
“Explain the stages of the legislative process and analyse the use and control of delegated legislation”
A bill becomes law by passing three readings in both houses and receiving royal assent. The Senate acts as a house of review and a check on the government. Delegated legislation is detailed law made by the executive under authority from an Act, and it is controlled by enabling limits, parliamentary disallowance and judicial review.
What this dot point is asking
This dot point is about how Parliament actually produces law and why much of the detail is left to the executive. SCSA wants the formal stages, the role of each house, and a genuine analysis of delegated legislation, which is a large and often overlooked part of the legal system.
The stages of a bill
Most legislation begins as a government bill drafted to implement policy. In the originating house (usually the House of Representatives) it goes through a first reading (formal introduction), a second reading (the main debate on the principle and purpose of the bill), a committee or consideration in detail stage (clause-by-clause examination and amendment), and a third reading (final vote). It then repeats the process in the other house. If both houses pass the bill in identical terms, it is presented to the Governor-General for royal assent, after which it becomes an Act and commences on a set date.
A bill only becomes law if both the House of Representatives and the Senate pass it in exactly the same form. If the houses disagree and a deadlock persists, section 57 provides a double dissolution and, if needed, a joint sitting as the constitutional mechanism to resolve it.
The Senate as a house of review
The Senate is central to the legislative process because the government often does not control it. Elected by proportional representation, the Senate frequently holds the balance of power with minor parties and independents. This lets it scrutinise, amend or block government bills, function as a genuine house of review, and run powerful committees that examine policy and administration. The trade-off, which a good answer evaluates, is that this can also obstruct an elected government's mandate, so the Senate is praised as a check and criticised as a brake depending on viewpoint.
What delegated legislation is and why it exists
Parliament cannot anticipate or draft every detail needed to run a modern state. So an Act of Parliament (the primary or enabling legislation) authorises another body, usually a minister, government department or statutory authority, to make detailed rules. This is delegated legislation, and it takes forms such as regulations, rules, by-laws and ordinances. In volume it far exceeds the law made by Parliament itself.
The reasons for delegating are practical: it saves limited parliamentary time, allows technical detail to be set by experts, and enables quick responses to changing circumstances or emergencies. The COVID-19 public health directions, made rapidly under enabling public health Acts, are a clear contemporary example of delegated power being used to respond to a crisis.
Law made by a person or body (such as a minister or local council) to whom Parliament has delegated law-making authority through an Act, including regulations, rules, by-laws and ordinances.
Controlling delegated legislation
Because delegated legislation is made by the executive rather than elected representatives, it must be controlled. There are three main checks. First, the enabling Act sets the limits: a regulation that goes beyond the power granted is ultra vires (beyond power) and invalid. Second, Parliament retains control through tabling and disallowance, where either house can vote to disallow a regulation within a set period, and through scrutiny committees that review instruments for issues such as unfair retrospectivity or undue interference with rights. Third, the courts can review delegated legislation for whether it is within power and was made through a proper process.
When you evaluate, balance efficiency against accountability. Delegated legislation is essential and well controlled in theory, but the sheer volume makes thorough parliamentary scrutiny difficult, and broad emergency powers can concentrate significant authority in the executive with limited debate.
A common task is "Using an example, explain how delegated legislation is kept accountable." Work through it in steps.
Step 1: Identify the enabling Act and the instrument
Take a public health regulation made under an enabling Public Health Act. The Act grants the minister power to make rules, and the regulation is the delegated legislation.
Step 2: Apply the ultra vires limit
Check whether the regulation stays within the power granted. A regulation that goes beyond the enabling Act is ultra vires (beyond power) and invalid, so the Act itself is the first control.
Step 3: Apply parliamentary control
Explain that the instrument is tabled in Parliament and either house can vote to disallow it within a set period; a scrutiny committee can flag retrospectivity or rights concerns.
Step 4: Apply judicial control and judge effectiveness
Note that courts can review the instrument for validity and proper process. Conclude that the controls are sound in principle but that the sheer volume of instruments strains scrutiny, especially with broad emergency powers.
Delegated legislation is not made by Parliament passing a bill. It is made by the executive (or another authorised body) under authority already granted in an Act. Saying a regulation goes through three readings in Parliament is wrong; regulations are made by the delegate and only tabled for possible disallowance.
Exam-style questions
Questions in the style of SCSA exam questions on this dot point, each with a worked answer. They are written by ExamExplained unless tagged "Past paper"; the year shows the paper a question is modelled on.
WACE 2021-style12 marksExplain the stages a bill passes through to become law and analyse the use and control of delegated legislation.Show worked answer →
A 12 mark response needs the legislative stages and a developed analysis of delegated legislation.
Stages. A government bill passes a first reading (introduction), second reading (debate on principle), consideration in detail or committee stage (clause-by-clause), and third reading in the originating house, then repeats in the second house. Both houses must pass it in identical terms before royal assent.
Delegated legislation. An enabling Act authorises a minister, department or authority to make detailed rules (regulations, by-laws, ordinances) for reasons of time, technical expertise and speed, as with COVID-19 public health directions.
Control. The enabling Act sets limits (ultra vires rules are invalid); Parliament can disallow instruments and scrutiny committees review them; courts can review for validity. Conclude by weighing efficiency against accountability given the sheer volume. Markers reward the stages plus a balanced analysis.
WACE 2023-style6 marksExplain why Parliament delegates law-making power and one way delegated legislation is controlled.Show worked answer →
A 6 mark response needs reasons for delegation and a control mechanism.
Reasons. Parliament cannot draft every detail of a modern state, so it delegates to save limited parliamentary time, to allow technical experts to set detail, and to enable quick responses to changing or emergency circumstances.
Control. Parliament retains control through tabling and disallowance: an instrument must usually be tabled, and either house can vote to disallow it within a set period. Scrutiny committees also review instruments for issues such as retrospectivity or interference with rights.
Markers reward two reasons and one accurate, explained control mechanism.