Journal Article

Challenging the Orthodoxy: Giving the Court a Role in Scrutiny of Delegated Legislation

Gabrielle Appleby

in Parliamentary Affairs

Volume 69, issue 2, pages 269-285
Published in print April 2016 | ISSN: 0031-2290
Published online August 2015 | e-ISSN: 1460-2482 | DOI: https://dx.doi.org/10.1093/pa/gsv041
Challenging the Orthodoxy: Giving the Court a Role in Scrutiny of Delegated Legislation

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  • Parliamentary and Legislative Practice
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Australia was once a world leader in parliamentary oversight of delegated legislation. Today, parliamentary scrutiny has been undermined by a number of factors, including overly wide delegations, uncritical bi-partisan support for measures, party discipline restraining oversight, abuse of the disallowance procedure and parliamentary recesses to avoid parliamentary scrutiny, and interest-group capture within government. One of the reasons for the current state of affairs has been the constitutional orthodoxy in Australia that the courts do not intervene in the relationship between Parliament and the Executive. This article develops an alternative to that orthodoxy. I argue that the courts have a proper and necessary role in prodding parliamentary oversight of executive power, specifically in the delegated legislative sphere.

Keywords: Delegated legislation; Subordinate legislation; Parliamentary procedure; Separation of powers; Rule of law

Journal Article.  7180 words. 

Subjects: Parliamentary and Legislative Practice ; Political Institutions ; UK Politics

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