Scrutinising parliament's scrutiny of delegated legislative power

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.

Notes

1 Deirdre Curtin, ‘Challenging Executive Dominance in European Democracy’ (2014) 77 Modern Law Review 1, 3. In Australia, this phenomenon is also seen in the increased use of executive spending and contracting to regulate conduct and implement policy objectives outside of the parliamentary realm (Cheryl Saunders and Kevin KF Yam, ‘Government Regulation by Contract: Implications for the Rule of Law’ (2004) 15 Public Law Review 51; Gabrielle Appleby, ‘There Must Be Limits: The Commonwealth Spending Power’ (2009) 37 Federal Law Review 93, 97), the use of the executive federal cooperative institution, the Council of Australian Governments, as a policy and legislative driver without the input of legislatures (Cheryl Saunders, ‘The Scope of Executive Power’, Papers on Parliament No 59, April 2003) and the executive negotiation of treaties, which require subsequent implementation, often without transparency and democratic participation (Hilary Charlesworth, Madelaine Chiam, Devika Hovell and George Williams, ‘Deep Anxieties: Australia and the International Legal Order’ (2003) 25 Sydney Law Review 423).

2 George Winterton, Parliament, the Executive and the Governor-General (Melbourne University Press 1983) 85–86.

3 (1979) 144 CLR 374, 394 (High Court of Australia (HCA)).

4 See, eg, Bogdan Iancu, Legislative Delegation: The Erosion of Normative Limits in Modern Constitutionalism (Springer 2012) 4–5.

5 This draws on an account of the rule of law that focuses upon clarity of law: Paul Craig, ‘Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework’ [1997] Public Law 467, 467.

6 A critique that draws on the work of John Locke around the role of the legislature in law-making. See further, John Locke, Two Treatises of Government, Second Treatise (first published 1689, Thomas Hollis (ed), A Millar et al, 1764) ch XI [141].

7 See, eg, explanation of these in The Earl of Donoughmore, ‘Report of the Committee on Ministers’ Powers’, Parliamentary Papers Cmd 4060, 1932. See also Leslie Finlay Crisp, Australian National Government (5th edn, Longman Cheshire 1983) 416–17.

8 See also Dennis Pearce and Stephen Argument, Delegated Legislation in Australia (4th edn, LexisNexis Butterworths 2012) 6–7; Robin Creyke, John McMillan and Mark Smyth, Control of Government Action: Text, Cases and Commentary (3rd edn, LexisNexis Butterworths 2012) 299–300.

9 Robert Baldwin and John Houghton, ‘“Circular Arguments” The Status and Legitimacy of Administrative Rules’ [1986] Public Law 239. See also John Willis, ‘Introduction’ in John Willis (ed), Canadian Boards at Work (Macmillan 1941) 145.

10 W Harrison Moore, The Constitution of the Commonwealth of Australia (2nd edn, Sweet & Maxwell 1910) 27–28. See also Crisp (n 7) 417–18, referring to KH Bailey, Senate Select Committee on Standing Committees, 1929–30, Evidence, 18–19.

11 This was the delegation challenged and upheld as constitutional in the leading case of Victorian Stevedoring and General Contracting Company Pty Ltd v Dignan (1931) 46 CLR 73 (HCA) (Dignan), discussed below.

12 Dignan (1931) 46 CLR 73, 100 (HCA).

13 While these regulations were disallowed by the Parliament, the government continued to remake them, as there was no restriction on doing so at that time.

14 (1909) 8 CLR 626, 646 (HCA).

15 R v Kirby; Ex parte Boilermakers’ Society of Australia (Boilermakers’ Case) (1956) 94 CLR 254 (HCA). Although the federal separation of powers has implications for the judicial branch at the State level, (known as the Kable principle, which is derived from the State courts’ and the State Supreme Court's constitutional role within the federal judicial structure of Chapter III: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51), there is no known implication for the legislative and executive branches. Our discussion therefore focuses on the federal position.

16 Winterton (n 2) 86.

17 ibid 87.

18 (1931) 46 CLR 73 (HCA).

19 ibid 91. See also Dignan (1931) 46 CLR 73, 115 and 117 (Evatt J).

20 Owen Dixon, ‘The Law and the Constitution’ (1935) 51 Law Quarterly Review 590, 606.

21 Dignan (1931) 46 CLR 73, 114 (HCA).

22 ibid 117.

23 ibid 92–94.

24 ibid 101. See also Dignan (1931) 46 CLR 73, 121 (Evatt J). See also Capital Duplicators v ACT (1992) 177 CLR 248 (Mason CJ, Dawson and McHugh JJ) (HCA); Plaintiff S 157/2002 v Commonwealth (2003) 211 CLR 476, [102] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ) (HCA).

25 Dignan (1931) 46 CLR 73, 101 (HCA), referring to In Re Initiative and Referendum Act (1919) AC 945 (House of Lords).

26 See, eg, only passing reference in Winterton (n 2) 91.

27 Geoffrey Sawer, ‘The Separation of Powers in Australian Federalism’ (1961) 35 Aust LJ 177, 187.

28 Dignan (1931) 46 CLR 73, 120.

29 ibid 120.

30 ibid 120–21. The numerous War Regulations made during WWI and WWII under wide delegations demonstrate this in practice. See, eg, the unsuccessful challenge to the extraordinarily wide delegation in s 5(1) of the National Security Act 1939 (Cth) in Wishart v Fraser (1941) 64 CLR 470 (HCA).

31 [2014] HCA 23.

32 ibid [30] and [36] (French CJ, Hayne, Kiefel, Bell and Keane JJ). For the detail of the plaintiff's argument, see Williams v Commonwealth (High Court No S154/2013), Plaintiff's Submissions, 28 February 2014 [35]–[66].

33 ibid [36] (French CJ, Hayne, Kiefel, Bell and Keane JJ).

34 Dignan (1931) 46 CLR 73, 84–85, referring to A-G (Can) v A-G (Ontario, Quebec and Nova Scotia) (1898) AC 700, 71 (Privy Council).

35 John Uhr, Deliberative Democracy in Australia: The Changing Place of Parliament (CUP 1998) 133.

36 Caroline Morris and Ryan Malone, ‘Regulations Review in the New Zealand Parliament’ (2004) 4 Macquarie Law Journal 7.

37 See, eg, Thorpe v Minister for Aboriginal Affairs (1990) 26 FCR 325, 332 (Northrop J) (Federal Court of Australia), and discussion of New South Wales v Commonwealth (Work Choices) (2006) 229 CLR 1 (HCA), below.

38 Andrew Edgar, ‘Judicial Review of Delegated Legislation: Why Favour Substantive Review over Procedural Review?’ in John Bell, Mark Elliott, Jason Varuhas and Philip Murray (ed), Public Law Adjudication in Common Law Systems: Process and Substance (Hart Publishing 2016, forthcoming).

39 Geoffrey Lindell, ‘Responsible Government’ in P D Finn, Essays on Law and Government: Volume 1: Principles and Values (Law Book Co 1995) 75, 85, drawing on comments of Deane and Toohey JJ in Nationwide News v Wills (1992) 66 ALJR 658, 679–80.

40 (1956) 94 CLR 254, 275 (HCA).

41 (2005) 224 CLR 494 (HCA).

42 As is required by ss 81 and 83 of the Constitution: contained in Commonwealth of Australia Constitution Act 1900 (Cth) s 9 (Australian Constitution).

43 (2005) 224 CLR 494, 498 (HCA).

44 ibid 522 (Gleeson CJ), 568 and 577 (Gummow, Hayne, Callinan and Heydon JJ).

45 ibid 568.

46 ibid 577.

47 (2006) 229 CLR 1 (HCA).

48 ibid 197.

49 Sanford Levinson, ‘Judicial Engagement in Enforcing Limits on Government Power’ (2012) 19 George Mason Law Review 973, 978; see also Bernard Schwartz, Administrative Law (3rd edn, Aspen 1991) 22, describing US Supreme Court judge Sandra Day O'Connor.

50 See, eg, Williams v Commonwealth (No 1) (2012) 248 CLR 156, [38] and [77] (French CJ), [721] (Crennan J) (HCA).

51 Williams (No 1) (2012) 248 CLR 156, [77] (HCA).

52 ibid [38], quoting Nicholas Seddon, Government Contracts: Federal, State and Local (4th edn, Federation Press 2009). See also at [521] (Crennan J).

53 Williams (No 1) (2012) 248 CLR 156, [60] (HCA).

54 ibid [136].

55 ibid [516].

56 ibid [61] (French CJ), [135]–[136] [145] (Gummow and Bell JJ), [522] (Crennan J).

57 Gabrielle Appleby and Stephen McDonald, ‘Looking at the Executive Power through the High Court's New Spectacles’ (2013) 35 Sydney Law Review 253, 270.

58 Emphasis added. Geoffrey Lindell, ‘The Changed Landscape of the Executive Power of the Commonwealth after the Williams Case’ (2013) 39 Monash University Law Review 348, 349.

59 See also Attorney-General (WA) v Marquet (2003) 217 CLR 545, 570 (Gleeson CJ, Gummow, Hayne and Heydon JJ) (HCA).

60 See, eg, the implied freedom of political communication cases (commencing with the decisions in Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 (HCA) and Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 (HCA)), as well as right to vote cases (Roach v Electoral Commissioner (2007) 233 CLR 162 (HCA) and Rowe v Electoral Commissioner (2010) 243 CLR 1 (HCA)) and Egan v Willis (1998) 195 CLR 424 (HCA), in relation to the Parliament's power to order the production of documents from the Government.

61 Boilermakers’ Case (1956) 94 CLR 254 (HCA) and Kable v DPP (NSW) (1996) 189 CLR 51 (HCA) and subsequent cases.

62 Work Choices (2006) 229 CLR 1, [399] (HCA).

63 Lindell (n 59) 385.

64 This is not to imply that insufficient parliamentary scrutiny of delegations did not occur earlier in Australian history. See, eg, Crisp (n 7) 420, writing in 1983: ‘The passing of Acts in too skeletal or too loosely drafted a form … is not unknown in Canberra. Nor is acquiescence by Parliament in badly drawn or excessive or arbitrary regulations, or failure of one or both Houses to provide for any (or for effective) regular scrutiny of regulations newly made’.

65 This Act re-enacted the scrutiny regime previously contained in Part XII of the Acts Interpretation Act 1901 (Cth). The Legislative Instruments Act will be amended by the Acts and Instruments (Framework Reform) Act 2015 (Cth), when it comes into force. The Act's title will change to the Legislation Act 2003 (Cth). The substance of the publicity and review process for legislative instruments will not change.

66 Legislative Instruments Act 2003 (Cth), s 5 (LIA).

67 LIA, s 24.

68 LIA, s 38.

69 LIA, s 41(1).

70 LIA, s 50.

71 LIA s 44 (2)(26).

72 See further Senate Standing Committee on Regulations and Ordinances, ‘Delegated Legislation Monitor 17 of 2014’ (3 December 2014) 6–24 and Appendix 1; Office of Parliamentary Counsel, ‘Drafting Direction No 3.8: Subordinate Legislation’ (Document released 5 December 2014) [9]–[10] and note at [2]–[8], [26]–[30] an explanation of when regulations should be used unless there is a ‘strong justification’ for prescribing these matters by another type of instrument (these include where the delegated instrument is to create an offence or civil penalty, to provide for powers of arrest, detention, entry search or seizure, to impose a tax, to set amounts for appropriations and to amend primary legislation). The drafting directions also note that drafters should see the First Parliamentary Counsel to ‘discuss whether politically sensitive provisions should be dealt with by regulation or by another type of legislative instrument’: [7]. The Committee has expressed concerns regarding the basis on which a ‘strong justification’ would be determined and recommended that Explanatory Statements identify the justification, and set out the factors or criteria relevant to it: Senate Standing Committee on Regulations and Ordinances, ‘Delegated Legislation Monitor 17 of 2014’ (3 December 2014) 20. On the change in practice, see also Stephen Argument, ‘The Use of “Legislative Rules” in Preference to Regulations” A “Novel” Approach?’ (2015) 26 Public Law Review 12.

73 Senate Standing Committee on Regulations and Ordinances, ‘Delegated Legislation Monitor 17 of 2014’ (3 December 2014) 11–12.

74 For more information on the form of scrutiny that the OPC provides, see the instructions issued to drafters in the OPC by the First Parliamentary Counsel at ‘OPC Drafting Directions Series’ (Office of Parliamentary Counsel) <www.opc.gov.au/about/draft_directions.htm> accessed 4 November 2015.

75 Senate Standing Committee on Regulations and Ordinances, ‘Delegated Legislation Monitor 17 of 2014’ (3 December 2014) 11.

76 Stephen Argument, ‘The Use of “Legislative Rules” in Preference to Regulations” A “Novel” Approach?’ (2015) 26 Public Law Review 12, 13. See further Senate Standing Committee on Regulations and Ordinances, ‘Delegated Legislation Monitor 17 of 2014’ (3 December 2014) 7 and Senate Standing Committee on Regulations and Ordinances, ‘Delegated Legislation Monitor 2 of 2014’ (5 March 2014) 1–2.

77 Senate Standing Committee on Regulations and Ordinances, ‘Delegated Legislation Monitor 17 of 2014’ (3 December 2014) 8.

78 ibid 16.

79 ibid 24.

80 Joo-Cheong Tham, ‘Law-making and Temporary Migrant Labour Schemes: Accountability and the 457 Visa Scheme’ (2009) 17 Australian Journal of Administrative Law 18.

81 LIA, s 17 (2).

82 LIA, s 17. See criticism of this in Legislative Instruments Act Review Committee, ‘2008 Review of the Legislative Instruments Act 2003’ (2008) 42.

83 LIA (Cth) s 19.

84 Australian Senate, Standing Order 23: see Annotated Standing Orders of the Australian Senate <http://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/aso> accessed 9 September 2015.

85 For an explanation of how the Committee applies these principles, see Regulations and Ordinances Committee, ‘Application of the Committee's Scrutiny Principles' <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinances/guidelines/principles> accessed 9 September 2015.

86 See, eg, the comments of Senator Cooney made in the Senate on 4 June 1987 (Hansard 3528) that it does not look for the political acceptability of the policy, leaving this to the Parliament. See also Administrative Review Council, ‘Rule Making by Commonwealth Agencies' (Report to the Attorney-General, Report No 35, 1992) [6.24] 44; Senate Select Committee on Standing Committees 1929–30, ‘Report’, [23] x–xi.

87 Hermann Pünder, ‘Democratic Legitimation of Delegated Legislation – A Comparative View on the American, British and German Law’ (2009) 58 International Comparative Law Quarterly 353, 361.

88 Winterton (n 2) 92.

89 Bogdan Iancu (n 4) 219. See also David Schoenbrod, ‘Politics and the Principle that Elected Legislators Should Make the Laws’ (2003) 26 Harvard Journal of Law and Public Policy 239, 260.

90 David Schoenbrod, ‘Separation of Powers and the Powers that Be – The Constitutional Purposes of the Delegation Doctrine’ (1987) 36 American University Law Review 355, 387.

91 Denise Meyerson, ‘Rethinking the Constitutionality of Delegated Legislation’ (2003) 11 Australian Journal of Administrative Law 45, 52. See also Stephen Gaudbaum, ‘Separation of Powers and the Growth of Judicial Review in Established Democracies (or Why has the Model of Legislative Supremacy Mostly Been Withdrawn from Sale’ (2014) 62 American Journal of Comparative Law 613.

92 Excise Tariff Proposal (No 1) 2014 (Cth).

93 Senator the Hon Mathias Cormann, ‘Press Conference – Implementation Arrangements for Fuel Excise Indexation over Next 12 months’, 28 October 2014.

94 Section 31 of the Migration Act provides that there are to be ‘prescribed classes of visas’, that is, visas prescribed by regulation. Section 504 of the Act gives the Governor-General the power to make ‘make regulations, not inconsistent with this Act, prescribing all matters which by this Act are required or permitted to be prescribed’.

95 Senate Regulations and Ordinances Committee, ‘Delegated Legislation Monitor (No 8 of 2013)’ (4 December 2013) 502 <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinances/Monitor/mon2013/index> accessed 4 November 2015.

96 ibid 501–2.

97 ibid 502.

98 ibid 502.

99 See also comments by Andrew Lynch regarding the Committee's acceptance of government responses in another context (regarding the constitutional basis for regulations approving executive expenditure), that, even though more recently the Committee has become more proactive in questioning the government, ‘[i]t is clear that the Committee is easily satisfied and does not see its role to include challenging the answers given by government’: Andrew Lynch, ‘Commonwealth Spending after Williams (No 2): Has the New Dawn Risen?’ (2015) 26 Public Law Review 83.

100 Senate Regulations and Ordinances Committee, ‘Delegated Legislation Monitor (No 1 of 2014)’ (12 February 2014) 26–27 <http://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Regulations_and_Ordinances/Monitor> accessed 4 November 2015.

101 ibid 27.

102 ibid 27.

103 ibid 27.

104 ibid 27.

105 ibid 27.

106 Paul Farrell, ‘Scott Morrison Fails Again to Bring Back Temporary Visas for Asylum Seekers’ The Guardian (Australia, 27 March 2014) <http://www.theguardian.com/world/2014/mar/27/scott-morrison-fails-again-to-bring-back-temporary-visas-for-asylum-seekers> accessed 9 September 2015.

107 Paul Farrell, ‘Sarah Hanson-Young Moves to Veto Temporary Protection Visas for Asylum Seekers’ The Guardian (Australia, 11 February 2014) <http://www.theguardian.com/world/2014/feb/10/hanson-young-veto-temporary-visas> accessed 9 September 2015. See also government position in Department of Immigration and Border Protection, ‘Temporary Humanitarian Concern Visa: Information for People Who Arrive Illegally by Boat or Plane and Seek Australia's Protection’ (Fact Sheet, issued January 2014) <https://docs.google.com/file/d/0ByW2V3f-jYBReS16Zm5BZGliQjg/edit?pli=1> accessed 9 September 2015.

108 Senate Standing Committee on Regulations and Ordinance, ‘Delegated Legislation Monitor: No 6 of 2014’ (18 June 2014) 3.

109 ibid 3–4.

110 ibid 4.

111 See examples provided in Crisp (n 7) 422–23.

112 Senate Standing Committee on Regulations and Ordinance, ‘Delegated Legislation Monitor: No 6 of 2014’ (18 June 2014) 4.

113 ibid 5.

114 Two affected asylum seekers brought challenges to the December 2013 Regulation in the High Court of Australia. By the time of the hearing, the plaintiffs had changed their challenge to focus on the validity of the Minister's purported determination to limit the number of protection visas available during the 2013–14 financial year: Plaintiff S297/2013 v Minister for Immigration and Border Protection [2014] HCA 24 and Plaintiff M150/2013 v Minister for Immigration and Border Protection [2014] HCA 25.

115 Note also the arguments made by the Plaintiff in Williams (No 2): Williams v Commonwealth (High Court No S154/2013), Plaintiff's Submissions, 28 February 2014, [93]. And note historical concerns about the time between enactment of regulations and possibility of disallowance where Parliament is not called into session in Crisp (n 7) 425.

116 Such as those authorised by the Financial Management and Accountability Act 1997 (Cth) s 32B.

117 Ernst Willheim, ‘Government by Regulation: Deficiencies in Parliamentary Scrutiny?’ (2004) 15 Public Law Review 9.

118 Administrative Review Council (n 86) 42.

119 ‘Future of Financial Advice’ (The Treasury) <http://futureofadvice.treasury.gov.au/Content/Content.aspx?doc=home.htm> accessed 4 November 2015.

120 See explanatory statement to the Regulation.

121 See Commonwealth Parliament, Parliamentary Debates, Senate, 17 September 2015, 74 (Senator Williams).

122 ibid.

123 Senate Regulations and Ordinances Committee, ‘Delegated Legislation Monitor 11 of 2015’ (17 September 2015) 6 <http://www.aph.gov.au/~/media/Committees/Senate/committee/regord_ctte/mon2015/pdf/no11.pdf?la=en> accessed 4 November 2015.

124 Baldwin and Houghton (n 9) 267.

125 Legal and Constitutional Affairs Legislation Committee, ‘Estimates’ (Official Committee Hansard, 22 May 2012) 71.

126 Questions Taken on Notice, Supplementary Budget Estimates Hearing: 15 October 2012, Immigration and Citizenship Portfolio, answer to question by Senator Xenophon (SE12/0336).

127 Questions Taken on Notice, Budget Estimates Hearing: 21–22 May 2012, Immigration and Citizenship Portfolio, answer to question by Senator Xenophon (BE12/0211).

128 Questions Taken on Notice, Supplementary Budget Estimates Hearing: 15 October 2012, Immigration and Citizenship Portfolio, answer to question by Senator Xenophon (SE12/0336).

129 See for example, Transport Workers Union, ‘Submission to the Senate Standing Committee on Legal and Constitutional Affairs on the Framework and Operation of Subclass 457 Visas, Enterprise Migration Agreements and Regional Migration Agreements’ (30 April 2013) 9.

130 Legal and Constitutional Affairs Legislation Committee, ‘Estimates’ (Official Committee Hansard, 13 February 2012), 58–61. Senator Nick Xenophon is an Independent Senator from South Australia.

131 Questions Taken on Notice, Budget Estimates Hearing: 21–22 May 2012, Immigration and Citizenship Portfolio, answer to question by Senator Xenophon (BE12/0211).

132 Geoffrey Sawer, ‘The Separation of Powers in Australian Federalism’ (1961) 35 Australian Law Journal 177; Meyerson (n 91); Leslie Zines, The High Court and the Constitution (5th edn, Federation Press 2008) 198–207.

133 This view was presented perhaps most strongly in Australian history by the High Court in Australian Communist Party v Commonwealth (1951) 83 CLR 1 (Communist Party Case) (HCA).

134 Meyerson (n 91) 48.

135 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 566–67 (HCA).

136 See references to the constitutional provisions that establish separation of powers in Boilermakers, above, responsible government and the implications from that establishment in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, 557–59. In that case, the implications related to a constitutionally guaranteed implied freedom of political communication.

137 Laurence H Tribe, American Constitutional Law (2nd edn, Foundation Press 1988) 363. See also Jeremy Waldron, Law and Disagreement (Clarendon Press 1999) 4.

138 Paul Craig, Administrative Law (5th edn, Sweet & Maxwell 2003) 368.

139 See s 64 of the Australian Constitution, which mandates that all government Ministers must hold a seat in Parliament within three months of their appointment.

140 For an explanation of the features of doctrine of responsible government in the Australian context see, eg, David Kinley, ‘Governmental Accountability in Australia and the United Kingdom: A Conceptual Analysis of the Role of Non-Parliamentary Institutions and Devices’ (1995) 18 University of New South Wales Law Journal 409, 411, as quoted in Egan v Willis (1998) 195 CLR 424, 451 (Gaudron, Gummow and Hayne JJ) (HCA); Queensland, Electoral and Administrative Review Commission, ‘Report on Review of Parliamentary Committees’ (October 1992), vol 1, par 2.23

141 John Stuart Mill, Utilitarianism, Liberty and Representative Government (Ernest Rhys (ed), J M Dent & Sons 1922) 239.

142 Meyerson (n 91) 54.

143 See the use of Responsible Government in this way by Evatt J, eg, in Dignan (1931) 46 CLR 73 (see analysis above).

144 See, eg, Robert A Dahl, Democracy and Its Critics (Yale University Press 1989) 187–91; Cass R Sunstein, The Partial Constitution (Harvard University Press 1993) 23; Cass R Sunstein, ‘Constitutions and Democracies: An Epilogue’ in Jon Elster and Gudmund Hernes (eds) Constitutionalism and Democracy: Studies in Rationality and Social Change (CUP 1988) 327, 336–38; Carlos Santiago Nino, The Constitution of Deliberative Democracy (Yale University Press 1998) 187–216, particularly 199–216; John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (Harvard University Press 1980).

145 Nino (n 144) 200.

146 See Creyke, McMillan and Smyth (n 8) 306–7.

147 See discussion in references in n 131 and discussion of these theorists in Uhr (n 35) 231–32.

148 Fiona de Londres and Fergal F Davis, ‘Controlling the Executive in Times of Terrorism’ (2010) 30(1) Oxford Journal of Legal Studies 19, 26, 32. See also Mark Tushnet, ‘Controlling Executive Power in the War on Terrorism’ (2005) 118 Harvard Law Review 2673, 2680.

149 Uwe Kischel, ‘Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law’ (1994) 46 Administrative Law Review 213, 215.

150 K Zweigert and H Kötz, An Introduction to Comparative Law (3rd edn, Clarendon Press 1998).

151 Important comparisons of legislative scrutiny processes is currently being undertaken, for example, by Professor Peter Cane in the context of a broader study attempting to explore the relationship between administrative law doctrine and institutional structure of governance and public administration.

152 Iancu (n 4) 2.

153 ibid 2.

154 Geoffrey Sawer, ‘The Separation of Powers in Australian Federalism’ (1961) 35 Australian Law Journal 177, 187.

155 Harold Bruff and Ernest Gellhorn, ‘Congressional Control of Administrative Regulation: A Study of Legislative Vetoes’ (1977) 90 Harvard Law Review 1369, 1427–28.

156 See, eg, Work Choices (2006) 229 CLR 1, 197 (HCA). Although note the role of the Senate's Scrutiny of Bills Committee to review Bills to ensure that there are no inappropriate delegations contained in primary legislation, and also the Senate's Committee on Regulations and Ordinances to ensure that delegated instruments do not contain matters more appropriate for parliamentary enactment. These Committees may bring inappropriate delegations and use of delegated powers to the Parliament's attention.

157 While there are relevant and important differences between the Australian constitutional system and the German and American systems, most notably the absence of a system of responsible government in Germany and the US, investigation of the way by which limits operate in these systems is nonetheless worthwhile. As we have explained above, they give us a sense of possible doctrinal solutions to the constitutional question raised in the Australian context.

158 J W Hampton Jr & Co v United States, 276 US 394 (1928) (US Supreme Court (USSC')). See also United States v Chicago Milwaukee St Paul and Pacific Railroad Co, 282 US 311 (1931), 324 (USSC); Whitman v American Trucking Associations Inc, 531 US 457 (2001), 472 (USSC).

159 Louis L Jaffe, Judicial Control of Administrative Action (Little, Brown and Co 1965) 68, 71.

160 Panama Refining Co v Ryan, 293 US 388 (1935) (USSC) and ALA Schechter Poultry Corp v United States, 295 US 495 (1935) (USSC).

161 See discussion in Harold H Bruff, Balance of Forces: Separation of Powers Law in the Administrative State (Carolina Academic Press 2006) 137.

162 Immigration and Naturalization Service v Chadha, 462 US 919 (1983) (USSC).

163 Bruff (n 161).

164 ibid 140.

165 See also Winterton (n 2) 91.

166 See also Iancu (n 4) 78.

167 Bruff (n 161) 140. See other critiques of the doctrine in Richard B Stewart, ‘Beyond Delegation Doctrine’ (1987) 36 American University Law Review 323, 324 and Richard J Pierce, Jr, ‘Political Accountability and Delegated Power: A Response to Professor Lowi (1987) 36 American University Law Review 391, 393.

168 Bruff (n 161) 141–42.

169 Emphasis added.

170 Donald P Kommers and Russell A Miller, The Constitutional Jurisprudence of the Federal Republic of Germany (3rd edn, Duke University Press 2012) 175.

171 Emergency Price Control Case (1958) 8 BVerfGE 274 (German Constitutional Court (GCC)); see also Kalker 1 Case (1978) 49 BVerfGE 89 (GCC).

172 Uwe Kischel, ‘Delegation of Legislative Power to Agencies: A Comparative Analysis of United States and German Law’ (1994) 46 Administrative Law Review 213, 239. See also the recent German Constitutional Court decision Organstreit Proceedings Regarding the ESM/Euro Plus Pact 2 (2012) 131 BVerfGE 152 (GCC), English summary available at <http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2012/bvg12-042.html> accessed 12 October 2015. While this decision was made in a different constitutional context, the government's obligation to keep the legislature informed ‘comprehensively and at the earliest possible time’ in relation to matters concerning the EU, it provides a good example of intervention by the Constitutional Court in the relationship between the two branches of government, and judicial prodding of the legislature to perform its proper role in providing scrutiny and publicity for governmental acts.

173 See Iancu (n 4) 263, referring to Horst Hasskarl, ‘Die Rechtsprechung des Bundesverfassungsgerichts zu Art. 80 Abs. 1 Satz 2 GG’, (1969) 94 Archiv für öffentliches Recht 85.

174 Kischel (n 159) 243.

175 ibid 228.

176 (1972) 33 BVerfGE 303 (GCC).

177 (1981) 58 BVerfGE 257 (GCC); (1977) 47 BVerfGE 46 (GCC).

178 (1981) 58 BVerfGE 257 (GCC).

179 Pünder (n 87) 362.

180 ibid 367.

181 Iancu (n 4) 78.

182 Louis Jaffe, ‘An Essay on Delegation of Legislative Power’ (1947) 11 Columbia Law Review 561, 577.

183 Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ) (HCA).

184 North Australian Aboriginal Legal Aid Service v Bradley (2004) 218 CLR 146, 163 (HCA). See also Forge v Australian Securities and Investments Commission (2006) 228 CLR 45, 76 (Gummow, Hayne and Crennan JJ) (HCA), that there is no ‘single all-embracing statement of the defining characteristics of a court’. See also Fardon v Attorney-General (Qld) (2004) 223 CLR 575, 618 (Gummow J) (HCA); Condon v Pompano [2013] HCA 7, [124] (Hayne, Crennan, Kiefel and Bell JJ).

185 Winterton (n 2) 90.

186 For criticisms of the characterisation limitation's inability to achieve democratic and judicial accountability for delegations of legislative power, see also Winterton (n 2) 89.

187 Dignan (1996) 187 CLR 416, 486 (Brennan CJ, Toohey, Gaudron, McHugh and Gummow JJ) (HCA).

188 ibid.

189 In the recent High Court case of ADCO Constructions Pty Ltd v Goudappel [2014] HCA 18, French CJ, Crennan, Kiefel and Keane JJ observed that Henry VIII clauses ‘have frequently been criticised for good reason’ ([31]), but Gageler J argued against any cautionary approach to the construction of these clauses. He said ‘[P]arliamentary oversight, together with the scope of judicial review of the exercise of regulation-making power, diminishes the utility of the pejorative labeling of the empowering provisions as “Henry VIII clauses”’. In the context of a Henry VIII clause used to achieve a legislative transition, he said such clauses strike a balance between flexibility and accountability ([61]).

190 Gabriël A Moens and John Trone, ‘Report of the Constitutionality of the Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011’, submission to the Senate Legal and Constitutional Affairs Legislation Committee, Trade Marks Amendment (Tobacco Plain Packaging) Bill 2011 [Provisions] (September 2011).

191 Executive Council of the Western Cape Legislature v President of the Republic of South Africa [1995] ZACC 8 [61] (Constitutional Court of South Africa).

192 ibid [204] (Sachs J).

193 Administrative Review Council (n 86) 15.

194 See Willocks v Anderson (1971) 124 CLR 293, [4] (Barwick CJ, Menzies, Windeyer, Owen, Walsh and Gibbs JJ) (HCA).

195 David Schoenbrod, ‘Separation of Powers and the Powers that Be’ (n 90) 377.

196 Uhr (n 35) 49.

197 Herbert Morrison, ‘Speech at Plymouth’ (19 March 1944), extracted in Crisp (n 7) 418.

198 See Dan Meagher ‘The Common Law Principle of Legality’ (2013) 38 Alternative Law Journal 209.

199 See further Pearce and Argument (n 8) 242–44 [15.9].

200 Cass R Sunstein, Designing Democracy: What Constitutions Do (OUP 2001) 140.

201 Iancu (n 4) 134.

202 Ernst Freund, Administrative Powers over Persons and Property: A Comparative Survey (Chicago University Press 1928) 218.

203 Harold H Bruff and Ernest Gellhorn, ‘Congressional Control of Administrative Regulation: A Study of Legislative Vetoes’ (1977) 90 Harvard Law Review 1369, 1427.

204 Jaffe, Judicial Control, (n 159) 33.

205 ibid 50.

206 Uhr (n 35) 158.

207 Such a procedure is relatively common in the United Kingdom and known as an ‘affirmative resolution procedure’, where statutory instruments require formal approval by both Houses before they enter into force. In the UK, there are a number of variations of this procedure. Although note that the lack of consistency and a systematic framework for review, the complexity and operation of the current procedures and the very little understanding of it by parliamentarians and the public have led to robust criticism. See further Ruth Fox and Joel Blackwell, The Devil Is in the Detail: Parliament and Delegated Legislation (Hansard Society 2014) particularly at 76, 79–80, 230 (Appendix B) for an explanation of the affirmative resolution procedure.

208 Administrative Review Council (n 86) 42.

209 S Cooney, ‘The Codification of Migration Policy: Excess Rules? – Part II’ (1994) 1 Australian Journal of Administrative Law 181.

210 For more see, Tham (n 80) 20.

211 See, eg, Baldwin and Houghton (n 9) 279.

212 (1985) 159 CLR 550, 620 (HCA).

213 For proposed political solutions see, eg, Dennis Pearce, ‘Rules, Regulations and Red Tape, Parliamentary Scrutiny of Delegated Legislation’ (Papers on Parliament No 42, December 2004).