•Delegated (or subordinate or subsidiary) legislation refers to those laws made by persons or bodies to whom parliament has delegated law-making authority
•Where acts are made by parliament, each principal act makes provision for subsidiary legislation to be made, and will specify who has the power to do so under that act
•Delegated legislation can only exist in relation to an enabling act
•Delegated legislation contains the many administrative details necessary to ensure that the provisions of the act will operate successfully. It may be administered by Government Departments, Local Councils or Courts
•Regulations and Statutory Rules are the most common forms of delegated legislation. They are made by the executive or a minister and apply to the general population. By-laws, and sometimes Ordinances, are made by a local government authority and apply to the people who live in that area. Rules commonly describe procedure to be followed in Courts For example:
The Copyright Act 1968 (Cth) Part XII Regulations – authorizes the Copyright (International Protection) Regulations 1969 (Cth) and the Copyright Regulations 1969 (Cth). The Supreme Court Act 1935 (WA) Part X Rules of Court – includes authorization of the Rules of the Supreme Court 1971 (WA). Types of delegated legislation
Delegated Legislation is a term which covers the vast amount of legislation made by government agencies and the Governor-General under authority of Acts of Parliaments, which delegate this power to agencies. This type of legislation is also known as Subordinate Legislation or, since 2005, Legislative Instruments. Within the broad area of Delegated Legislation the following more specific terms are sometimes used: Regulation
The most common form of delegated legislation. Used for legislation ofgeneral application emanating from a government department. Published in the Statutory Rules series until 2004 and in the Select Legislative Instrument series from 2005 Rule
Legislation specifying procedural formalities, eg court procedures such as the High Court Rules. Published in the Statutory Rulesseries until 2004 Ordinance Primary legislation of non self governing territories, made by a federal government department to apply to a particular territory. Also used for the legislation of some State local government bodies. By-law
Made by a statutory corporation having effect only within the area of responsibility of the authority. Also used for the legislation of some State local government bodies There is also a range of other delegated legislation which includes: Decisions, Declarations, Determinations, Directions, Orders, etc.
ADVANTAGESDISADVANTAGESUsed because:•Saves limited time in Parliament;•Allow rapid change;•MPs lack detailed or technical knowledge. E.g. Specific details inAbortion Act, Road Traffic detail •Quick response to new developments, e.g. Foot and Mouth outbreaks.
The Prevention of Terrorism (Temporary Provisions) Act allows the quick addition of new prohibited groups. •Enables minor changes to statutes, e.g. Variations in sentences, approval of motor vehicle changes. •Judicial review may be sought, by parties with locus standi, (i.e. Persons sufficiently affected by the legislation), so time is not wasted by Parliament considering them all. •Model bylaws available from Whitehall.
•Withdrawal or amendment easy.Using delegated Legislation •implies that Parliament has insufficient time to scrutinise it. Parliament is not reviewing legislation properly. •Sub-delegation of powers a further problem (although not for EU statutory instruments), which causes complexity and confusion.
•Sheer volume causes complexity – it is impossible for anyone to keep abreast of all delegated legislation. •Lack of publicity, not known about by the public (and often lawyers). •It is undemocratic as most regulations are made by civil servant or other unelected people, except for local authority bylaws made by elected councillors •Henry VIII clauses can give power to delegated legislation or amend or repeal Acts of Parliament
Corporate and Business Law (Malaysia) December 2007 Answers1 This question tests the candidates’ knowledge on the difference between legislation and delegated legislation as well as the advantages and disadvantages of delegated legislation.
(a) Legislation refers to the laws which are passed by Parliament (at the Federal level) and the State Legislative Assemblies (at the State level). Legislation passed by Parliament are generally called Acts of Parliament, while those passed by the State Legislative Assemblies are called Enactments (with the exception of Sabah and Sarawak, where they are called Ordinances).
Delegated legislation (also known as subsidiary legislation) may be defined as the rules and regulations which are passed by some person or body under some enabling parent legislation. It is defined in the Interpretation Act 1967 as ‘any proclamation, rule, regulation, order, bye-law or other instrument made under any Ordinance, Enactment or other lawful authority and having legal effect’.
(b) The advantages of delegated legislation are the following: (i) Delegated legislation can be passed very quickly and is more flexible. This is because it does not have to undergo the various stages of procedure which has to be followed in Parliament or the State Legislative Assemblies. Similarly, if the need arises, subsidiary legislation can be just as speedily amended or even rescinded to meet the changing needs of society.
(ii) Delegated legislation deals with the detailed rules necessary to implement the law. As Parliament does not have sufficient time to deal with such minute details, delegated legislation is the more efficient way to fulfil this need. (iii) Some matters require the special skill and knowledge of experts in that area. Parliament itself may not have sufficient expertsfor this purpose.
Thus, delegated legislation fulfils this need as well. However, delegated legislation has several disadvantages as well. These may be summarised as follows: (i) The growth of delegated legislation goes against the doctrine of separation of powers. This is because law is not being passed by persons elected for that purpose (i.e. the legislature). Instead it is being passed by officers of government departments.
(ii) Parliament is unable to effectively supervise the making of delegated legislation due to lack of time. As a consequence, many rules and regulations may have been passed without proper consideration of some very important factors. (iii) Too much law is passed through subsidiary legislation without sufficient Parliamentary control.