Scrutinising parliament's scrutiny of delegated legislative power

Abstract

ABSTRACT Delegation of legislative power to the Executive occupies a unique place within the constitutional division of power. As a matter of necessity, efficiency, responsiveness, and a desire for increased participation from industry, delegation of legislative power is common but surprisingly under-theorised and under-studied. For decades in Australia it has been the domain of the Parliament to determine the appropriate exercise and level of scrutiny for delegated legislative power. But the constitutional landscape may be changing. In the 2012 decision Williams v Commonwealth (No 1), the Australian High Court indicated a greater willingness to scrutinise more robustly the performance of Parliament's supervisory functions. Against the background of the Court's new interest in responsible government, we argue that the current parliamentary practice of review of the exercise of delegated power is unable to achieve robust accountability. Informed by the High Court's jurisprudence in Williams (No 1) and the theories of responsible government and separation of powers, we suggest reforms that will ensure Parliament is meeting its constitutional duty of calling the Executive to account to it and, ultimately, the people.