Subordinate Rule Making

Subordinate Rule Making - of Acts giving the power to make delegated An Historical Perspective legislation - the earliest of those being the Statute of Sewers made in 1531. This gave the Commis- ME Stephen Bourke sioners of the Sewers power to impose rates on Principal Legal Officer land owners and to distrain and impose penalties Adminisnative Review Council for non-payment. The Statute of Proclamations in 1539 is one Any system of rule making can be thought of of the most striking instances where an Act sets as a means to impose a set of values over the way out the power to make delegated legislation, in a society conducts its activities. In England and this case in the widest possible terms. The Australia, as with other Western common law Statute required 'that Proclamations made by the countries, those values emerge as democratic King shallbeobeyed'. It empowered Henry VIII, principles where the rule of law is dominant. with the advice of his Council, Separation of powers is entrenched in the 'to set forth proclamations under such penal- Australian Constitution. But history shows that ties and pains and of such sort as to His the law making function has been practised by Majesty and his said Council should seem the Crown (now the Executive) as well as the necessary and requisite, the said proclamations Parliament. to be obeyed, observed and kept as though Delegating legislative power to the Executive they were made by Act of Parliament unless has not been without its difficulties given the the King's Highness dispense with any of hstinct constitutional roles of Parliament and them under his great seal'. the Executive. Nevertheless responsible government sees the executive in control of at least The Act also provided that Sheriffs or other one of the Houses of Parliament. An examina- officers were required, within fourteen days, to tion of the history of subordinate rule making proclaim HisMajesty 'sproclamations in market- provides an important perspective for any future towns, other towns or villages and post them up reform. 'openly upon places convenient therein'. This statute is therefore not only an early example of Early Delegated Legislatio fi in delegated legislation but alsoa form of statutory England rules publication. This was not, however, Henry VIII's only use While there are instances of the making of of delegatedlegislation. Section 59 of thestatute delegated legislation dating back to the 14th and of Wales, made in 1542, empowered the King to 15th centuries,itwasonly comparativelymently 'alter the laws of Wales and to make laws and that delegated legislation became a popular ordinances for Wales, such alterations and new method of rule making. The Committee on laws and ordinances to be published under the Minister's Powers (The Donoughmore Can- great seal and to be as of good strength, virtue mittee) cited an enactment made in 1385 con- and qffect as if made by the authority of Par- cerning the staple as the earliest example of' an liament' (emphasisadded) So it is that a clause in Act allowing the making of delegated legisla- an Act that provides apower to amend either that tion. Act or another Act by delegated legislation is The staple consisted of four products - wool, termed a 'Henry VIII' clause. leather, tin and lead - and the marketing was Other instances of use of the power to make regulated by the Statute of the Staple. Merchants, delegated legislation can be found through to the known as Staplers, had a monopoly in the staple nineteenth century, but its frequency certainly and the mayors of towns from where the staple diminished after the reign of Henry VIII. was exported held Staple Courts. However, the The industrial revolution saw the emergence Statute of the Staple is on the Rolls of Parlia- of an increasingly complex society. The regula- ment, not in the statute book. It gave the King tion of the activities of citizens required more power to determine the places where the staple detailed rules to cope with rhe complexities of could be held, the time of commencement, and life and also required more time to make those the form and method of execution. rules. The reign of Henry VIII had many instances English statute law at the beginning of the , nineteenth century often made extensive refer- before commencement. Orders of the House of m ence to regulations. The regulations were not Commons were outside its jurisdiction. made by a delegate of Parliament, but were The next significant event was the release of contained within the Act itself. Unlike the the report by the Donoughmore Committee on #m standard division today (important matters of Minister's Powers in 1932. The Committee was principle are contained in the Act and adminis- hastily appointed after the release of The New trative detail in the regulations), the statutes Despotism in 1929by the then Lordchief Justice passed by Parliament during the nineteenth of England, Lord Hewart. This book was a century dealt with matters of great detail. For forthright attack on delegation to the Executive example, the statute regulating cotton mills which Lord Hewart attributed to a bureacratic covered matters such as the age of employees in conspiracy. The Committee reported that it the mills, hours of work and times for breakfast could not find any evidence to support the alle- and a time for dinner. gations of conspiracy and stated that the process However, delegated legislation was still oc- of government would quickly come to a halt if all casionally used. The Poor Law Amendment Act laws had to be made by Parliament. Neverthe- 1834 (Imp) empowered the Poor Law Commis- less it recommended establishing a new standing sioners to make regulations for the management committee of the House of Commons 'to consider of the poor. It gave the Commissioners very and report on ... every regulation and rule made wide powers in carrying out their function to in the exercise of delegated legislative power, those who were 'deserving' of assistance - a far and laid before the House in pursuance of statu- cry from today's Social Security Act. tory requirement'. The way rules were made began to change as The recommendation was not acted on at that Parliament could no longer devote the time re- time and there seems to have been, at least prior quired to making the detailed rules necessary to to World War 11, little parliamentary interest in govern. Increasingly Parliament delegated to the scrutiny of delegated legislation. Indeed, a the executive the function of working out the motion put to the House of Commons on January delails. 27, 1937 'that in the opinion of this House, the Instances of delegating legislative authority power of the Executive has increased, is increas- to the Executive in England increased through- ing and ought to be diminished' failed for lack of out the nineteenth century, but with the onset of a quorum. It was not until 1943 that the House World War I, delegated rule making became far of Commons established the first Select Com- more common. mittee on Statutory Instruments and until 1973 As the trend through the nineteenth century that both Houses of Parliament in the United saw a greater use of delegated legislation as a Kingdom established ajoint scrutiny committee. method of rule making in the United Kingdom, The Rules Publication Act 1893 remained the it also revealed a greater need for an efficient only statutory requirement for the publication of mechanism to scrutinise this form of law mak- delegated legislation in the United Kingdom ing. In 1893 the Rules Publication Act was until 1946 when the Statutory Instruments Act passed imposing a requirement for advance pub- was passed. That Act required publication and licity. A notice of a proposal to make rules had tabling and permitted disallowance of certain to be published at least 40 days before the mak- instruments. ing of the rule and a notice where copies of the proposed rule were available was also required. The Use of Delegated Legislation in Publication was to be in the London Gazette. Colonial Australia The Act also allowed representations or sugges- tions to be made in writing and any such sugges- As New South Wales was made part of the tions or representations had to be taken into British Empire by occupation rather than by account. conquest or cession, so the law in force from the There was also a measure of scrutiny by the timeof colonisation was thelaw of England. The Committees of Parliament. The Special Orders New South Wales Statute of 1787 stated that it Committee of the House of Lords was estab- might be necessary to establish a colony, a civil lished in 1925. Its scrutiny was confined to Government and a court of criminaljurisdiction. orders which required Parliamentary approval New South Wales was subsequently made as a place for the transportation of convicts by two later that the British Law Officers declared that Orders-in-Council under that Statute Macquarie had been acting illegally in attempt- Copies of the Governor's orders and regula- ing to establish the Bankof New South Wales by tions were sent to theunited Kingdom Secretary Charter. of State. The Historical Records of Australia The English Parliament next acted in 1823 by report that "the Governor assumed powers of passing the New South Wales Act. This author- legislation, uncontrolled and entirely on his own ised the King to grant charters of justice for New initiative, as great as those which are the pre- South Wales and Van Dieman's Land, to extend rogative of Parliament and greater than those of the right to jury trial by Order-in-Council, to the King".

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