It is well established that the so-called separation of powers under the Constitution does not preclude the Parliament from authorizing in the widest and most general terms subordinate legislation under any of the heads of its legislative power.
Accordingly, the grant by Parliament to the Governor-General of the power to make Ordinances having the force of law in the Australian Capital Territory is beyond question. Section 12 (1) of the Act is valid. Moreover, it cannot be that any limitation upon the power of the Governor-General under s. 12 (1) springs from the general limitation to be found throughout the law upon the power of a delegate. Even if this principle does apply to legislative power, and even if the Governor-General were to be regarded as a delegate of Parliament, according to my reading of s. 12 the Governor-General would be a delegate who has been given power to delegate further. If, therefore, the power to authorize the making of regulations, which I find has been conferred by s. 12, fails, it must be because of some as yet unexpressed limitation upon the power of Parliament to authorize the making of subordinate legislation. I have found no reason for concluding that Parliament may not, in authorizing subordinate legislation, confer power to authorize the making of regulations or by-laws not inconsistent with the legislation which Parliament has directly authorized - in this case the Ordinance - if the regulations or by-laws so made are themselves subjected by Parliament to its control in the manner provided by s. 12 (8) (9) and (10) of the Seat of Government (Administration) Act. It seems to me that every consideration in favour of the validity of the grant of subordinate legislative-making power in general extends to such legislation, authorizing the making of regulations not inconsistent with it and prescribing matters required or permitted to be prescribed, in all cases where the regulations or by-laws so to be made are subjected to direct parliamentary control. In Meakes v. Dignan Dixon J. [1] and Evatt J. [2] stated the theory whereby subordinate legislation is justified and, reading what their Honours there said, it seems to me applicable to the regulations made here equally as well as to the Ordinance authorizing them. When Evatt J. said [3] :
In my opinion every grant by the Commonwealth Parliament of authority to make rules and regulations, whether the grantee is the Executive Government or some other authority, is itself a grant of legislative power. The true nature and quality of the legislative power of the Commonwealth Parliament involves, as part of its content, power to confer lawmaking powers upon authorities other than Parliament itself. If such power to issue binding commands may lawfully be granted by Parliament to the Executive or other agencies, an increase in the extent of such power cannot of itself invalidate the grant. It is true that the extent of the power granted will often be a very material circumstance in the examination of the validity of the legislation conferring the grant. But this is for a reason quite different and distinct from the absolute restriction upon parliamentary action which is supposed to result from the theory of separation of powers.
his Honour used language which applies to subordinate legislation made under Parliament's grant of authority to one grantee to authorize a further grant of legislative power.
1. (1931) 46 C.L.R. 73.
2. (1951) 83 C.L.R. 1, at pp. 256-257.
3. (1931) 46 C.L.R., at pp. 101, 102.
4. (1931) 46 C.L.R., at pp. 119-121.
5. (1931) 46 C.L.R., at p. 119.