Limits on Delegated Legislation

A parent statute, also called an enabling Act, is the law that authorises an authority to make rules for carrying it out. Such rules are delegated legislation: they derive their authority from the Act and must remain within its purposes, powers and conditions. A rule cannot acquire greater authority merely because it has been formally notified.

The Act sets the scope of rule-making

The legislature determines the legislative policy; the delegate supplies details within that framework. The essential legislative function, including determining legislative policy, cannot be delegated.

• Rules must concern matters covered by the enabling provision and advance the purposes of the Act.
• A general power to make rules for carrying out an Act does not authorise rules that create a substantially different legislative scheme.
• Rules cannot contradict statutory provisions, enlarge statutory duties beyond the authority granted, or remove safeguards provided by the Act.
• A rule-making power does not by itself authorise amendment of the parent statute.

Special powers require statutory authority

Some measures need a specific legal foundation and cannot be inferred merely from administrative convenience.

• Retrospective rules require authority conferred by the parent statute, expressly or by necessary implication.
• A delegate cannot impose a tax merely under a general rule-making power; the statute must authorise the levy.
• Rules cannot independently create criminal liability or prescribe penalties beyond what the statute authorises.
• The delegate cannot further delegate its rule-making power unless the statutory scheme permits sub-delegation.

Prescribed procedures must be followed

The parent Act may specify who can make rules and how they must be made. Compliance with mandatory procedural requirements is a condition of valid rule-making.

• Requirements such as prior publication, consultation, approval or publication in the Official Gazette must be observed where the governing law makes them mandatory.
• Where rules must be laid before the legislature, the statutory wording determines the procedure and the consequences of non-compliance; every laying requirement does not automatically operate identically.

Courts enforce statutory and constitutional limits

A rule exceeding the parent Act is substantively ultra vires; breach of a mandatory rule-making procedure can make it procedurally ultra vires.

• Under Article 13, rules fall within the meaning of law and are subject to fundamental rights.
• Even a rule within the enabling provision must comply with the Constitution, including Article 14.
• Courts can invalidate an unlawful rule; legislative scrutiny does not replace judicial review.