Legislation

Delegated legislation is also known as:

• Subsidiary legislation
• Subordinate legislation
• Legislative instruments

Delegated legislation is made by an organisation or body other than Parliament that has been delegated a specific, precise, constrained, and restricted power to make certain laws. Delegated legislation may be administered by government departments, local councils, courts or some other body to which the authority has been delegated. It includes regulations, rules, orders, statutory instruments, by-laws.

Delegated legislation exists in relation to an enabling Act, called the principal Act. The principal Act makes provisions for delegated legislation to be made and will specify who has been delegated the power to do so under the Act. An enabling Act may enable multiple pieces of delegated legislation (operating under it). These will contain the administrative details that are necessary to ensure that the provisions of the enabling Act will operate successfully.

Concepts related to delegated legislation

Individually, delegated legislation has a variety of names, including `regulations‘, `by-laws‘, `rules‘, `ordinances‘, and `orders-in-council‘. Collectively, they are variously termed `subordinate legislation‘, `statutory rules‘, `legislative instruments‘, `statutory instruments‘, and `subsidiary legislation‘.

The general rules of statutory interpretation apply to delegated legislation: Whittaker v Comcare (1998) 86 FCR 532 ; 28 AAR 55.

Delegated legislation may also be of value in interpreting the parent legislation: Ward v Cmr of Police (1997) 151 ALR 604 ; 80 IR 1.

Delegated legislation has the force of the relevant empowering statute, but it must be within the legislative power of the delegator, and the delegation itself must not be so wide as to be uncertain or amount to an abdication of legislative power: Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan  (1931) 46 CLR 73 at 101, 120 ; [1931] HCA 34.

Types of delegated legislation

Within the broad area of delegated legislation the following more specific terms can be used:

• By-law. Made by a statutory corporation having effect only within the area of responsibility of the authority. Also used for the legislation of some local government bodies and local government authorities (such as shires and councils). When a by-law is made for a particular local government authority it only has application within that local government area. For example, the Fiona Stanley Hospital By-laws 2014 (WA).
• Ordinance. Primary legislation of non self-governing territories, made by a federal government department to apply to a particular territory. Also used for the legislation of local government bodies in some states. This includes all laws made by a territory legislature, such as the Australian Capital Territory and the Northern Territory. For example, the University of Canberra Act 1989 (ACT).
• Regulation The most common form of delegated legislation, these are made by the executive or a Minister to apply to the general population. They are used for legislation of general application emanating from a government department. Published in the Statutory Rules series until 2004 and in the Select Legislative Instrument series from 2005. For example, the Occupational Safety and Health Regulations 1996 (WA).
• Rule. Legislation specifying procedural formalities such as court procedures e.g. the High Court Rules 2004 (Cth). Published in the Statutory Rules series until 2004.

Other types of delegated legislation include: decisions, declarations, determinations, directions, orders, etc

Legislative instruments

Legislative instruments (formerly Gazette Notices) are legislation used to set out very specific requirements that require less parliamentary scrutiny and are subject to frequent change. 

In other words, legislative instruments provide a flexible mechanism for requirements to be amended quickly without requiring the same level of approval as an Act change.

The Federal Register of Legislation (FROL) incorporates the Federal Register of Legislative Instruments (FRLI) which was established under section 20 of the Legislative Instruments Act 2003 (Cth).

• Legislative Instruments includes all the materials previously called subordinate or delegated legislation, or regulations of Statutory Rules.
• Regulations were previously published as "Statutory Rules (year) No.". Following the commencement of the Legislative Instruments Act 2003 regulations are "Select Legislative Instrument (year) No.". The change in terminology is reflected in Legendcom and FROL but not completely in LexisNexis AU.

Note: The Legislative Instruments Act 2003 (Cth) was renamed the Legislation Act 2003 (Cth) following the commencement of the Acts and Instruments (Framework Reform) Act 2015 in March 2016.  Section 20 of the Act has now been repealed and the Federal Register of Legislative Instruments has been incorporated into the Federal Register of Legislation.

Note: The Select Legislative Instrument (SLI) numbered series has ceased printing and as a result the practice of allocating SLI numbers to instruments has been discontinued from January 2016. Historic information about SLI's and SR's is still available on the FROL website.