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 gov- ernment 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". constitute a Legislative Council for New South The first recorded challenge to the validity of Wales and to make New South Wales and Van delegated legislation in New South Wales was Dieman's 1,and separate colonies. The Legis- instituted by John Macarthur. He argued that lative Council had an advisory role, the right to regulations forbidding the free introduction and initiate legislation remained with the Governor, sale of spirits were invalid. The Historical although ordinances of that Council could not be Records again report a conversation between inconsistent with the laws of England. An Ex- Governor King and John Macarthur where ecutive Council was created. Macarthur contended that no local order or With the powers given to Governor Phillip regulation could be binding unless sanctioned by and to successive governors, they were able to an Act of Parliament. rule in a more or less autocratic way. Rule by It has been suggested that Macarthur's stand proclamation, order and decree of the Governor was based on a pamphlet issued by Jeremy was normal. However, as the number of free Bentham published in 1803 when Macarthur settlers increased and trade became established, was in England. The pamphlet was entitled the structure and makeup of the colony changed "A Plea for the Constitution, shewing the and this type of rule became increasingly un- enormities committed, to the oppression of satisfactory. There was pressure from the free British subjects, innocent as well as guilty, in settlers to have a greater voice in the governance breach of Magna Carta, the Petition of Right, of the colony. With the establishment of the the Habeas Corpus Act and the Bill of Colonial Parliament in 1823, the move to re- Rights ...in and by theDesign, Foundation and sponsible and democratic government began in Government of the Penal Colony of New earnest although delegated law making contin- South Wales". ued to conmbute significantly to the law.

Bentham was critical of the constitutional The Commonwealth Parliament situation in New South Wales and argued that the first Governor went to the colony without "the With the establishmentof thecommonwealth smallest particle of legislative power." Parliament in 1901, the role of the Executive in In 1815, Ellis Bent, the Judge-Advocate, was the rule making process was recognised and also critical of the way successive Governors delegated legislation contemplated, from the had assumed the power to legislate. He wrote: outset. The doctrine of the separation of powers aGovemor of this Colony claimsand exercises contains inherent tension between Parliament's a power to make Laws in this Colony, not law-making role and the fact that it is impracti- merely By-laws and police regulations, but cable for Parliament to examine the minutiae of general laws, upon all subjects, intended to be legislation. Not surprisingly, this has been re- binding upon all classes, highly penal in their solved in favour of practicality and the High consequence, and in many instances directly Court has never doubted that Parliament can contrary to the spirit and principles of the law delegate legislative power to the Executive. of England. Accepting that Parliament could delegate its legislative power, attention was turned very early Despite the lack of proper constitutional in the life of the Federation to scrutiny of the foundation, the orders, regulations and procla- Executive in the exercise of its delegated mations survived. It was only toward the end of legislative power. Although the Acts Interpreta- Governor Macquarie's term in office thirty years tion Act was the second Act passed by the Commonwealth Parliament (the first being the out of officeand the incoming Scullin Govern- rn Consolidated Revenue Act) it did not then con- ment faced a hostile Senate. The Senate became tain disallowance provisions. Any disallowance very active in amending Government Bills and procedure was left to be inserted into specific the Governmentresorted to enacting the amended Bills. For example, clause 256 of the first Cus- matters by regulation. Consequentially, the toms Bill contained aprovision for disallowance Senate's power of disallowance was used quite of regulations but only on motion by both Houses liberally. Indeed the attempt by the Government of Parliament. However, in the debates, the to legislate preferentially for members of the relevant Minister successfully moved an amend- Waterside Workers Union was disallowed some ment to provide that disallowance could be by 12 times in 1930-1931 and provided the basis for either House. the High Court challenge in Dignan's case. When the Rules Publication Bill came before With a change in Government in 1931, the Parliament in 1903, there was an attempt to new Lyons Government enjoyed a Senate ma- include a general disallowance provision. The jority and set about making some changes to the parliamentary debate was diverted by a series of Acts Interpretation Act, the main one being, not technical amendments raised by a Ministry surprisingly, a provision to prevent a disallowed suspicious of any attempt to control Executive regulation being introduced for a period of six authority. Concerns were expressed that the months. The other major change was the es- Rules Publication Bill was not the appropriate tablishment of a Senate Committee to scrutinise vehicle for a general disallowance provision. In all delegated legislation. the end, and after a very confusing debate, the Arguments against the establishment of such motion was withdrawn but the ground work had a committee were raised by Sir Robert Garran, been laid for the concept of a general disallow- then Solicitor-General. He did not think that its ance provision. work would be very interesting or useful and it In 1901,the Attorney-General,SenatorDrake- would be unlikely to attract members. Those in Brockman introducedan Acts Interpretation Bill support saw it as enhancing the role of the Senate designed as a house of review. Robert Menzies was 'to avoid the necessity of repeating provisions among those and argued that regulations ought in all our Bills, to deal with them once and for to be confined to administrative matters ensur- all in this Bill, so that it may be understood ing that wol~ldbe one of the primary roles of the when certain expressions occur that they have committee. Consequently, on 11 March 1932, the meanings it assigns to them'. the Senate established the Senate Standing Committee on Regulations arid Ordinances, Clause 11 of the Bill set out the conditions which exists to this day. underwhichRegulations under an Act were to be Greater attention is now being given to the made. They were to be notified in the Gazette, scrutiny of delegated legislation. Reforms in could not be retrospective, and were to be laid Victoria and New South Wales recognise that, before both Houses of Parliament within 30 unless this is properly controlled, there remains sittingdays, unlessacontrary intentionappeared. the capacity for too many important matters to be This Bill presented the opportunity for an- decided by delegated legislation. other attempt to re-introduce a general disal- lowanceprovision. It was successfully passed in the Senate after some debate and then passed by the House with a further amendment that notice of motion was required before a motion for disallowance couldbe put. This was to overcome difficulties that might arise should a private member seek to disallow the Government's regulations! The next significant event occured soon after the time of the release in the United Kingdom of Lord Hewart's work, The New Despotism. The Bruce Government in Australia had been voted rn REGULAR REPORTS

Administrative Review Council funding of service providers, and the provision of services to consumers. Reports, Submissions and Letters of Advice One element of the Project will be determin- ing the extent to which any general principles Since the last edition of Admin Review the arrived at should be modified when decisions are Council has provided made: a letter of advice to the Attorney-General on under an inter-govemmental program, or the National Health and Medical Research by a non-governmental or local government Council body. a submission to the Working Party on the Administrative Appeals Tribunal The Council hopes to release an Issues Paper a report to the Attorney-General: 'Review of in July and to consult widely before reporting to the Administrative Decisions (Judicial Re- the Attorney General late in the year. Those view) Act Statements of Reasons for Deci- interested in being consulted should contact the sions' responsible Project Officer, Mr James Renwick, a discussion paper from a Council consultant on (06) 257 6117. concerning procedures in the Australian Broadcasting Tribunal Intellectual Property a letter of advice on the new telecommunica- tions carrier arrangements Dr Margaret Allars of the University of Syd- a submission to the Senate Standing Commit- ney is preparing a consultant's paper on review tee on Finance and Public Administration of patents decisions. Inquiry into the Office of Ombudsman. Rule Making Current work program - developments Seminars on Rule-making were held in Syd- Broadcasting ney, Melbourne and Canberra, and addresses were made to the Conference on Administrative The discussion paper 'Review of the Austral- Law held in Canberra on 29 and 30 April by ian Broadcasting Tribunal Inquiries Procedures' various members of the Council and the Secre- prepared for the Council by the Communica- tariat. The Report to the Attorney General is now tions Law Centre of theuniversity ofNew South being finalised. Wales has now been published. It is noted at page 25. Multicultural Australia

Community Services & Health A report is to be forwarded to the Attorney General shortly. The Council recently provided advice on the National Health and Medical Research Council. Review of the Administrative The Council has now commenced the next stage Decisions (Judicial Review) Act: of the Project and is examining a range of deci- Statement of Reasons for Decisions sions made under programs administered by the Commonwealth Department of Community This report, prepared by a consultant, Services and Health, with a view torecommend- Mr Denis O'Brien of Minter Ellison, has now ing the administrative review principles which been forwarded to the Attorney-General and ought to apply to grants programs made within published. It completes the Council's considera- [hat portfolio. The Project will examine the tion of the AD(JR) Act. It is noted at page 24. rcviewability of decisions concerning: