Understanding Delegated Legislation: How It Becomes Law

Delegated legislation, also known as subordinate legislation or secondary legislation, is a type of law-making process where the power to make laws is delegated by Parliament to government ministers, departments, or other bodies. It is used to create regulations, by-laws, and ordinances that provide the detailed rules and procedures necessary to implement the general principles set out in primary legislation. This process allows for flexibility and speed in law-making, especially in emergencies, and ensures that technical details are informed by relevant expertise. While delegated legislation is not made directly by an Act of Parliament, it still carries the same weight as laws made by Parliament and is subject to scrutiny and overrule by parliamentary committees and legislative review processes.

The role of the Governor and Ministers in creating delegated legislation

The Governor's Role

The Governor of a state, such as the Governor of NSW, holds the power to make delegated legislation, also known as subordinate legislation, under the Subordinate Legislation Act 1989. This act regulates the creation and duration of delegated legislation. While the Governor holds this power, in practice, the legislation is often made by Ministers or other executive officeholders and then approved or confirmed by the Governor.

Ministers' Role

Ministers, as well as other executive officeholders, are responsible for creating delegated legislation. They work within the framework set by the primary legislation passed by Parliament, which provides general principles and guidance. This allows Ministers to address technical details and rules that may require expertise not held by Members of Parliament.

The process of creating delegated legislation typically involves a period of public consultation to inform the development process and ensure that the proposed regulation is thoroughly understood and considered.

Examples of Ministers' Involvement

During the COVID-19 pandemic, Ministers played a crucial role in creating health restrictions or Public Health Orders under section 7 of the Public Health Act 2010. These orders were enacted as delegated legislation, allowing for a swift and flexible response to the changing situation.

Another example is the Essential Services Proclamation and related Regulation, which granted the Minister for Energy and Environment the power to direct coal to the state's electricity generators.

The Governor and Ministers work together to create delegated legislation, with the Governor holding the ultimate authority to approve it. This process allows for expertise and flexibility in governance, ensuring that laws can be adapted to the specific needs and complexities of the state.

The process of public consultation

During the public consultation period, the proposed delegated legislation is presented to the public, allowing individuals, community groups, and interested parties to review and provide feedback. This process is designed to be inclusive and transparent, encouraging participation from those who may be affected by the legislation. It provides an opportunity for experts, stakeholders, and the general public to share their insights, concerns, and suggestions, ensuring that a diverse range of perspectives are considered.

The length of the consultation period can vary, but it is typically sufficient to allow for meaningful engagement and input. The responsible Minister or government department may outline specific guidelines and timelines for the consultation process, ensuring that all relevant information is considered before finalising the legislation. This period also allows for the identification and consideration of any potential impacts, both positive and negative, that the legislation may have on different groups or individuals.

The public consultation process can involve various methods of engagement, including public meetings, online forums, written submissions, or surveys. These methods enable a wide range of participants to contribute, ensuring that the process is accessible and inclusive. All feedback received during this period is carefully reviewed and considered by the relevant authorities, who then make informed decisions about the final content of the legislation.

By undergoing this comprehensive public consultation process, delegated legislation benefits from increased transparency and accountability and input from those with relevant expertise and experience. This process helps ensure that the final legislation is well-informed and responsive to the needs and concerns of those it affects, and aligned with the broader principles outlined by the Parliament. It is a critical step in the creation of delegated legislation, promoting good governance and public participation in the law-making process.

The scrutiny of delegated legislation by Parliament

The JCSI and the SLSC work together to scrutinise Statutory Instruments, which are the legal provisions made by the government under delegated powers. Despite having distinct remits, the committees share a focus on defending Parliament's role in the legislative process. The JCSI focuses on technical legal questions, such as defective drafting or retrospective effect, while the SLSC has a broader remit, reporting on instruments that are politically, legally, or publicly significant. Their work brings transparency and legitimacy to the legislative process, highlighting issues that warrant further debate or attention from parliamentarians.

The scrutiny process also involves reviewing the use of delegated legislation through special reports from committees like the Commons Statutory Instruments Committee and the JCSI. These reports analyse the appropriateness of using delegated powers to formulate policy, create new criminal offences, or establish public bodies. Additionally, the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC) plays a crucial role in scrutinising the relationship between government guidance and legislation, ensuring that mandatory rules are set out in legislation rather than guidance.

The effectiveness of parliamentary scrutiny of delegated legislation is a topic of discussion. While committees provide valuable oversight, their ability to influence the substance of delegated legislation is limited. They can identify concerns and defects in instruments, but their highest sanction is to draw Parliament's attention to these issues. This highlights the importance of Parliament's role in entrusting the government with delegated powers and providing oversight during the legislative process.

The ability of Parliament to overrule delegated legislation

Parliament has the ability to overrule delegated legislation, which is an important check on the executive government's power to make such laws. This power of Parliament ensures that delegated legislation does not inappropriately exceed the authority granted by the primary legislation.

In Australia, each piece of delegated legislation must be listed on a public register and presented to Parliament within six sitting days of being made. After it has been published on the public register, a member of Parliament can request that the Senate or House of Representatives overrule it within 15 sitting days. The Senate or House then has 15 sitting days to discuss and make a decision on the matter. If no decision is made within this timeframe, the delegated legislation is automatically overruled.

Parliamentary committees play a crucial role in scrutinising delegated legislation. In New South Wales, for example, committees such as the Regulation Committee, the Regulation Review Committee, and the Legislation Review Committee are tasked with reviewing delegated legislation to ensure it aligns with specific criteria. These committees ensure that delegated legislation:

• Is in agreement with existing laws;
• Respects the rights of citizens;
• Can be reviewed by a court; and
• Does not contain content more appropriate for a new primary law.

If a committee finds that a piece of delegated legislation does not meet these criteria, it can recommend that the Senate or House of Representatives overrule it. This process underscores the importance of parliamentary oversight in maintaining the balance of powers and upholding the integrity of the law-making process.

The different types of delegated legislation

Delegated legislation, also known as secondary or subordinate legislation, is a form of law made by government ministers or other authorised individuals and bodies (not Parliament). It is used to implement detailed rules or regulations that would be impractical to include in primary legislation.

There are several types of delegated legislation, each with different uses. The types used will be determined by the wording of the parent Act. Here are some of the most common types:

• Orders in Council are made by the Privy Council and are used to give legal effect to decisions made by the government or the monarch. They are often used to implement international treaties or agreements and can also be used to make emergency regulations in times of crisis.
• Statutory Instruments are the most common type of delegated legislation and are made by ministers or government agencies under the authority of an Act of Parliament. They are used to implement detailed rules or regulations necessary for the effective operation of an Act of Parliament.
• Bylaws are regulations made by local authorities or public bodies such as transport authorities, health trusts, or university boards. They are used to govern local matters not covered by national legislation, such as parking regulations, building standards, or the use of public spaces.
• Orders of Council are made by the lords of the Privy Council and are used for the regulation of professional bodies and the higher education sector.
• Ministerial orders are made by ministers and exercise the executive powers of government ministers.
• Commencement orders set the date on which an Act, or part of an Act, comes into force.
• Regulations set out how an Act is to be implemented and are usually made by ministers.
• Rules set out procedures for the operation of a government entity, such as courts or the Patent Office.
• Schemes are made by commissions to prescribe how entities under their remit are governed.
• Directions are a means by which ministers give legally binding instructions to a public body about how it exercises its functions.

These are just a few examples of the different types of delegated legislation. The UK's delegated legislation system is complex and flexible, allowing for various forms of legislation to accommodate changing circumstances.

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