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

Will the maker of the secondary legislation be able to subdelegate some of the legislative power?

If secondary legislation may be made by a subdelegate, that must be clearly authorised in the empowering provision.

The identity or office of the person to whom the power to make secondary legislation is given is a key factor in the particular legislative scheme. Careful consideration should therefore be given as to whether that person should be able to subdelegate a legislative power.

If the power to make secondary legislation is able to be subdelegated, the empowering provision must clearly identify that intent. Usually, the policy intent is best achieved by giving a clearly defined administrative role to a person under secondary legislation, rather than by a further subdelegation of legislative power.[1]

Consideration needs to be given to the scope of the power delegated and its intended effect to determine whether it is legislative or administrative. The test set out at para 14.1A above applies here also – is the subdelegated power intended to confer a law-making power? If it is, the standard wording must be used to ensure the power is appropriately conferred and the usual safeguards for secondary legislation apply.


[1] See however safe work instruments provided for under the Health and Safety at Work Act, which provide for two levels of secondary legislation.

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