Slaying the Ghost of Henry VIII: A Reconsideration of the Limits upon the Delegation of Commonwealth Legislative Power
| Author | Gerald Ng |
| DOI | 10.22145/flr.38.2.2 |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
| Subject Matter | Article |
SLAYING THE GHOST OF HENRY VIII:
A RECONSIDERATION OF THE LIMITS UPON THE
DELEGATION OF COMMONWEALTH LEGISLATIVE
POWER
Gerald Ng
I INTRODUCTION
Though at times inconvenient for lawyers and their clients, the use by the
Commonwealth of delegated legislatio n to fill lacunae in statutes is hardly remarkable,
and the constitutional validity of prov isions authorising that use even less a matter of
controversy. Nonetheless, there may be reason to doubt whether the same can so
readily be said of the inclusion in Commonwealth statutes of so-called 'Henry VIII'
clauses — t hat is, statutory provisions purporting to authorise the promulgation of
subordinate legislation that either amends or is inconsistent with the relevant principal
statute.1 In particular, one might ask to what extent such provisions may, regardless of
their width, be accommodated within the distribution of power contemplated by the
text and structure of the Constitution.
The task of answering this question requires, as a first step, that fresh consideration
be given to the limits, if any, upon Parliament's ability to confer on other institutions
some part of the legislative power of the Commonwealth. This is not to deny that the
sheer volume of delegated legislation presently in force should cause one to refrain
from a doctrinaire insistence upon such limits. But both the increasing use of 'Henry
VIII' clauses in Commonwealt h statutes and the High Court's most recent
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BEc, LL B (Hons) (Sydney); barrister, Sydney. Thanks are due to Alan Robertson SC and
Anuja Arunothayam, as well as the referees, for their comments on previous versions of
this article. All errors are the author's alone.
1 The common ancestor for these provisions was the notorious Statute of Proclamations 1539
(31 Henry VIII ch 8), which provided as follows:
The King for the Time being, with the Advice of his Council, or the more Part of
them, may set forth Proclamations under such Penalties and Pains as to him and
them shall seem necessary, which shall be observed as though they were made by
Act of Parliament.
This Act w as subsequently repealed during the reign of Edward VI: see A V Dicey,
Introduction to the Study of the Law of the Constitution (9th ed, 1948) 50–51.
206 Federal Law Review Volume 38
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pronouncements concerning the delegation of legislative power by Parliament suggest
that the issue, if by no means novel, 2 is worth revisiting.
To this end, the second part of this article focuses upon those recent
pronouncements as a starting point for analysis. For much of the history of Federation,
the High Court has accepted that a power to make subordinate legislation may be
conferred by Parliament in terms so broad as to render that conferral invalid.
However, the basis for this proposition is less clear. Is it merely a matter of concluding
that the 'delegated' power in question is so broadly framed as to lack a sufficient
connection with any head of Commonwealth legislative power? Or may the
proposition also be ascribed to some other principle or concern? As w ill become
apparent, what has re cently been said by the High Court appears to recognise the
possibility of the latter. And if that be correct, then identification of the relevant
principle or concern becomes necessary.
The third part of this article proceeds upon the assumption that the limits on
Parliament's ability to authorise delegated legislation may better be understood if the
constitutional justification for that a bility is itself better apprehended. Consequently,
attention is directed towards the justifications previously offered in the decided cases
and the difficulties in each.
The fourth pa rt then attempts to articulate an alternative position first as to the
matters which support the conclusion that, for the most part, the text and structure of
the Constitution do not pose an obstacle to the delegation of legislative po wer by
Parliament, and secondly as to the limits upon such delegation. Following this, in the
fifth part of the article, a currently operative example of a 'Henry VIII' clause —
namely, any one of the so-called 'exemption and modification' provisions in the
Corporations Act 2001 (Cth) — will be discussed, and doubts as to the validity of those
provisions canvassed.
Significantly, reference to those provisions serves another purpose. While the
discussion in this article will largely be confined to the delegation by Parliament of
legislative power, ends similar to those sought to be achieved by use of 'Henry VIII'
clauses may be realised by the conferra l of a statutory power upon an officer of the
Commonwealth to make decisions or orders that modify the operation of the principal
statute, either in a given ca se or in a given class of case. The Corporations Act 2001 (Cth)
is replete with examples of such conferrals. It may be that such powers are better
characterised as a dministrative, rather than legislative, though the distinction between
the two categories of power may not always be drawn with ease. Relevantly, whether
the conferral of such powers is in conformity with the Constitution is a question which
this article will highlight at various points. However, at the risk of appearing faint-
hearted, detailed consideration of it will have to be reserved for a later occasion.
II RECENT JUDICIAL STATEMENTS CONCERNING THE
DELEGATION OF LEGISLATIVE POWER
The joint reas ons in Plaintiff S157/2002 v Commonwealth record the various attempts
made by the Commonwealth, in the course of oral argument, to highlight the
supposedly unexceptional nature of the privative clause constituted by what was then
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2 See the Hon Mr Justice David Malcolm, 'The Limitations, if Any, on the Powers of
Parliament to Delegate the Power to Legislate' (1992) 66 Australian Law Journal 247.
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