Victorian Stevedoring Co v Dignan [1931] HCA 34; 46 CLR 73 (“Dignan’s case”)

Facts:

Transport Workers Act 1928, s 3 gave power to the Governor-General to make regulations with respect of the employment of transport workers, which, notwithstanding anything in any other Act, shall have the force of law. This essentially gave the regulations the same force as statute (allowing them to override existing statutes).

Waterside Employment Regulations provided members of Waterside Workers Federation to be given priority in employment; breach of priority requirement is an offence.

Issue: Does the enabling provision delegating legislative power breach the separation of powers in the Constitution? Under what circumstances does the delegation of legislative power to the Executive become abdication and therefore invalid?

Held: The Act was constitutionally valid; the delegation of legislative power does not necessarily impinge upon the separation of powers in the Constitution. A law conferring upon the executive a power to legislate upon some matter within the legislative power of the Commonwealth (Cth) Parliament is a law with respect to that subject and the separation of powers does not operate to restrain Parliament from enacting such a law. Parliament retains control of its legislative power as it can take back its power into its own hands if it wishes.

Ratio: It is constitutionally valid for the legislature to delegate legislative power to the executive. However, there are two provisos:

1. Requirement of a connection to a head of Cth power.

2. Not be an abdication of power.

Held (Dixon J): Delegated legislation is constitutionally valid so long as the legislature retains ultimate supervisory power (i.e. the enabling provision) and the power to withdraw delegation at any time. Ultimate supervisory power is maintained by the continuing operation of the authorising Act/enabling provision as it is considered to be the expression of the continuing will of the legislature.

Roche v Kronheimer decided that “a statute conferring upon the Executive a power to legislate upon some matter contained within one of the subjects of the legislative power of the Parliament is a law with respect to that subject, and that the distribution of legislative, executive and judicial powers in the Constitution does not operate to restrain the power of the Parliament to make such a law.”

Proviso per Dixon J: The delegation would be unconstitutional if the subject-matter is so extensive or vague that it is impossible to characterise the enabling legislation as a law with respect to any particular head or heads of power.

Proviso per Evatt J: A Cth law giving all of the power to legislate on any particular head or heads of power would be an invalid abdication of legislative power. Cth Parliament is not competent to abdicate its power because “each and every one of the laws passed by Parliament must answer the description of a law upon one or more of the subject matters stated in the Constitution. A law by which Parliament gave all its law-making authority to another body…would fail to pass the test.”

Note: Neither of the provisos have been applied to strike down any delegation.