LLB230 Lecture Notes - Lecture 9: Hong Kong Basic Law Drafting Committee, Paull, Primary And Secondary Legislation
WEEK 9: Delegated legislation
- Legislation made by executive
oConvenient – non-onerous
oSimple
oEasily amended
Act of parliament
- sits under and is given authority by
- regulations
- rules; of procedure
oie federal court rules
- by-laws
olimited to geographic area ie council
ouniversities ie chancellor – allow university to make policy
- ordinance
owithin territories
oie relating to Aboriginals
- others that mix:
oministers directions
oneed to be registered but not necessarily need to be published
oquasi-legislative
- legislative instrument
Victoria v Dignan
- GG couldn’t make wide law
- Can’t make law cause of separation of powers
- Court said its fine
- Nothing in the constitution to prevent delegation
- Delegated legislation can’t be too wide and uncertain or go beyond the act
- Allowed DL nothing in the const to disallow the conferral of legislative power on
the executive
Issues:
- Parliamentary scrutiny –lack there of
- Vague
- Legal validity and credentials
- A way for ministers to instruct courts ie a misuse
- Inconsistencies with legislation
- Public consulatation
- Lack of publication
- Democratic legitimacy – we don’t vote for the executive
- Regulatory impact; another layer of bureaucracy (red-tape)
o‘backdoor legislation’
o‘regulatory creep’ – incremental changes
obad design
Positives:
- as life gets more complicated
- Guide untrained officials
- Encourages consistencies
- Inform public and official attitudes
- Simplify complex issues
- Be flexible
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Legislation made by executive: convenient non-onerous, simple, easily amended. Can"t make law cause of separation of powers. Nothing in the constitution to prevent delegation. Delegated legislation can"t be too wide and uncertain or go beyond the act. Allowed dl nothing in the const to disallow the conferral of legislative power on the executive. A way for ministers to instruct courts ie a misuse. Democratic legitimacy we don"t vote for the executive. Regulatory impact; another layer of bureaucracy (red-tape) Lack of publication: backdoor legislation", regulatory creep" incremental changes, bad design. Public consultation: where it impacts public interests or business interests/industry interests. Parliamentary oversight: tabling, 15 days; no motion to disallow, if there is then another 15 days to resolve the issue. Lia 2003: s 5; scope s 6; what dl is s 7; what entities can"t be dl s 9; what instruments are dl. Meaning of the act and whether or not the dl complies with the act.
