This is a single section from Chapter 14. Read the full chapter here.

Who will hold the power to make secondary legislation?

The person delegated a power to make secondary legislation must be appropriate having regard to the importance of the issues and the nature of any safeguards that are in place.

There are no absolute rules as to who should be delegated a power to make secondary legislation. Traditionally, secondary legislation is often made by the Governor-General in Council, on the advice of a Minister, or less commonly, is made by the relevant portfolio Minister(s). A power to make secondary legislation may also be delegated to an official or a Crown entity with the relevant technical expertise and accountability for the area of law, or to a local authority.

Key factors to take into account are the extent of policy or value judgements required, the expertise required of the person making the secondary legislation, the degree of political accountability required (reflected in the importance of the issues in question), and what safeguards would apply as a consequence (for example, disallowance, Cabinet scrutiny, or drafting and certification by the Parliamentary Counsel Office (PCO)).

The more significant the power, the more likely it is that it should be exercised by the Governor-General in Council. That will ensure that a full range of safeguards will apply (including Cabinet scrutiny and drafting and certification by the PCO). The more technical the exercise of the power, or the more limited the group it applies to, the more likely it is to be appropriate for delegation to another agency (see Chapter 18.2, which also deals with this issue).

In practice, Cabinet is (almost) always involved before the Governor General makes secondary legislation, while the policy contained in secondary legislation made by a Minister is usually noted by Cabinet, if significant, in accordance with the requirements of the Cabinet Manual (see paragraphs 5.11, 5.12 and 5.13).

It is unusual to delegate a power to make secondary legislation outside of the Crown or public sector, such as to an industry or private body. In some situations however, (generally coregulatory or occupational regulatory regimes) non-Crown bodies have a recommendatory role in the making of secondary legislation by a Minister or an official, or may make secondary legislation that is conditional on approval by a Minister or an official.[1]


[1] See for example, rules made under section 67 of the Registered Architects Act 2005, and approved by the Minister under section 69 of that Act.

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