On The Operation And Review Mechanism Of Australian Delegated Legislation

This thesis focuses on the operation and review mechanism of Australian delegated legislation. Adopting the tradition of delegated legislation from the U.K, it is a commonplace in Australia for the parliament to delegate legislative power to the executive branch, statutory authorities, tribunals and courts. Due to the increased demand of public management, the amount of delegated legislative instruments had been soaring dramatically since the1970s. Moreover, problems such as low quality, lack of transparency and insufficient supervision were also prevalent. In response to these issues, the Australian government has enacted new statutes and reformed the former review mechanisms to reinforce the supervision of delegated legislation from three perspectives, namely operational control, parliamentary scrutiny, and judicial review. These measures significantly took effect.While inheriting the English legal principles and taking the American political system based on which it drafted its own constitution, Australian constitutional theory is made up of parliamentary sovereignty and separation of powers as its fundamental principles. Despite the fact that such principles are in contravention of delegation of legislative power, the reality triumphs. Delegated legislation becomes widely accepted because of its ability of lessening the time pressure on parliament, responding to technical or novel issues with flexibility, and increasing efficiency in the face of controversial subjects. However, delegated legislation is also accused of undermining parliamentary sovereignty, disrupting constitutional balance, and even violating personal rights. As a result, each and every jurisdiction in Australia went through various reforms. Currently, the Legislative Instruments Act2003(Cth) establishes ground rules for the operation of delegated legislation. The tabling and laying before parliament requirement strengthens controlling of legislation quality. The reformed judicial review system ensures the post legislation supervision. Although there is no uniform mechanism for the federal or states levels, there is indeed a tendency toward institutionalization and governed by law.Being made in accordance with the prescribed procedure, under a "necessary or convenient" empowering clause is the formal requirements for quality control of delegated legislation. As a multi-jurisdiction regime, every parliament in Australia has passed a specific statute for the regulation of delegation. Beginning with the existing statutory provisions of several representative jurisdictions, this part summarizes the scope of legislating authority, the drafting steps, consultation requirements, publication and the repeal procedure. The prerequisite for validity is no conflict with other laws. Here the law refers not only to the empowering act and other existing act, but also the constitution, the common law, and international treaties or conventions that have been transformed into domestic laws. Beside that, the repeal of the empowering act will lead to the repeal of all legislations made under it, unless it contains a saving clause. The sun-setting mechanism ensures that outdated legislations are repealed. In most jurisdictions, the effect of repealed delegated legislation is provided for in statutes.Parliamentary scrutiny is the practical choice of every common law countries where this is mostly realized by the parliament to disallow the legislation laid before it. Specifically, the parliament has select committees under it, which are responsible for the review of legislations based on prescribed standards, making the suggestions about disallowance. All jurisdictions have developed efficient and stable reviewing systems, the archetype of which is the Senate Standing Committee on Regulations and Ordinances at federal level. The general purpose of these committees is to scrutinize each instrument to ensure that it is in accordance with the statute; that it does not trespass unduly on personal rights and liberties; that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and that it does not contain matter more appropriate for parliamentary enactment. In supplement to the select committees, certain parliament has also established committee for the scrutiny of bills. Moreover, as a reflection of the increased importance attached to human rights, three jurisdictions has passed human rights acts which nominates specific committees to scrutinize legislation for human rights protections.Pursuant to the English common law tradition, Australia has regarded judicial review as a crucial for the control of executive decisions against violation of civil rights. An instrument may be declared invalid for reasons including simple ultra vires, unreasonableness, uncertainty or improper purpose. After an exploration in case law, this text offers a detailed discussion on the standing to sue, remedies, scope of application, grounds for review, as well as ousting clauses. At the federal level, due to the Administrative Decisions (Judicial Review) Act1977solely applying to executive decisions, review of delegated legislation can only be sought on common law grounds rather than statutory remedies. The fine line between administrative and legislative decisions is crucial in this account. However, the later enactment and case law seem to suggest that the two categories are not necessarily exclusive, and the significance of the dichotomy is lessening.On this basis, it puts forward advices, in terms of procedural control and external supervision. It concludes that the core notion of the Australian delegated legislation system is multi-faceted balance:that between the separation of powers and positive administration; between civil rights and governmental functions; between justice and fairness and social efficiency; between operation of powers and supervision. By contrast, the existing Chinese delegated legislation system seems to be lacking in the points mentioned above. In a micro perspective, that is evidenced by the non-transparency of legislative procedures and the absence of proper supervision. A balance of powers is the fundamental to good governance, while the balance of interests is the value orientation. It might be preferable to take the balance idea as the guidance to the end that the compulsion and arbitrariness discarded to create a chance for an open and rational dialogue within different interests. Only in this way could a fusion system of social justice with fair legislation and efficient administration be realized and the constitutional spirit of equality and freedom achieved during the transitional period in China.