Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan

Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan (Dignan) is a decision of the High Court of Australia on the separation of powers.

The contentious issue was whether legislative power could be delegated to the executive branch of government. The court found, consistently with English law tradition, that it is impossible to insist on strict separation between legislative and executive powers. As a result, this decision upheld the validity of delegated legislation.

This decision is in contrast to Kable v Director of Public Prosecutions (NSW) where the courts have insisted on a strict separation of judicial power.

Background

The appellants were found guilty of an offence against the Waterside Employment Regulations (WER). The regulations are given power by the Transport Workers Act 1928–1929 (TWA). However, the appellants sought to strike down the regulations by claiming that the provision in the TWA is ultra vires (done beyond one's legal authority) and void. They also claim that the entity of the WERs are unconstitutional, ultra vires, and consequently have no effect.

Is the grant of legislative authority to the Executive inconsistent with the separation of powers?

Judgment of the High Court

There were five Justices on the high court that handed down the unanimous decision (through 4 separate judgments): Gavan Duffy CJ, Rich, Starke, Dixon and Evatt JJ.

Generally, the court acknowledged that the constitution did not expressly permit delegated legislation. However, they recognised that the drafters of the constitution did not intend to restrict that power. This was viewed in light of the English law history and commonality of the practice of delegating legislation in the Westminster system.

Gavan Duffy CJ and Starke J:

The claim made by the appellant is based off the American constitutional doctrine:

[N]o legislative body can delegate to another department of the Government, or to any other authority, the power, either generally or specially, to enact laws.

The justices acknowledge that even in the United States, this doctrine does not preclude governments from delegating power to local authorities. Moreover, even if the act did impinge on this doctrine, there has been no recognition of this restriction in English law.

Although the Constitution does not permit the exercise of Commonwealth judicial power by any tribunal other than the High Court and other Federal Courts, it does not follow that the delegating of regulative powers to bodies other than Parliament is prohibited.

Dixon J

Dixon handed down the leading judgment in Dignan.

The Commonwealth Constitution clearly supports consideration of the separation of powers in a similar model to the American separation of powers. The structure of the constitution makes clear that Parliament is restrained from reposing any judicial power in any other organ or body. However, it is less stringent on preventing legislative power from being reposed in another organ.

Dixon J confirmed the previous judgment in Roche v Kronheimer, saying that a statute conferring power to the executive to make delegated legislation, on a matter contained within the legislative power of the Parliament is permitted. The Constitution does not operate to restrain the power of Parliament to delegate legislative power.

[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.

Dixon J recognises the asymmetry with the separation of judicial power. However, his reasoning distinguishes the separation between branches of government based on the nature of the power that the division of government prevents the legislature from handing over.

Additionally, the history of British legislation, and English law, depend on subordinate legislation for its efficacy. Therefore, removing delegated legislation is near impossible under the English Law system.

Dixon's judgment was not unqualified:

There may be such a width or such an uncertainty of the subject matter to be handed over that the enactment attempting it is not a law with respect to any particular head or heads of legislative power. Nor does it mean that the distribution of powers can supply no considerations of weight affecting the validity of an Act creating a legislative authority.

Dixon J draws a distinction between the common practice of delegating legislative authority to the executive and abdicating complete authority away from the legislature. Ultimately, the legislature must maintain the final authority for legislative matters.

Significance

The decision in Dignan confirmed the power for the legislature to delegate legislation to the executive branch.

Significantly later, Parliament issued legislation to support the disallowing of delegated legislation (Legislation Act 2003 (Cth) s 42). The presumption is that delegated legislation is disallowed 15 days after a motion is raised to disallow it. However, Legislation Act 2003 (Cth) s 44 provides some instruments that are not subject to disallowance.

There are two ways that legislative instruments are not subject to disallowance under s 44:

1. The Act itself prescribes for the disallowance of s 44
2. The delegated legislation itself declares that it is not subject to disallowance.

References

This article "Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan" is from Wikipedia. The list of its authors can be seen in its historical and/or the page Edithistory:Victorian Stevedoring & General Contracting Co Pty Ltd v Dignan. Articles copied from Draft Namespace on Wikipedia could be seen on the Draft Namespace of Wikipedia and not main one.

📰 Article(s) of the same category(ies)

• Oleg Yastrebov
• Construction Management (Project Delivery Method)
• Argumentum a fortiori
• Jessikah Inaba
• Brigitte Muller Case
• Sonya Barlow
• Legal coaching

---