6.4 Unauthorised subdelegation

Related to the concept of ultra vires is the issue of unauthorised subdelegation. A subdelegation arises when legislative power is subdelegated by the person or body to whom the power has been delegated. Subordinate legislation that includes a subdelegation would be invalid if the empowering Act does not authorise the subordinate legislation to include the subdelegation. For example, unauthorised subdelegation would arise if an Act authorises the Governor in Council to make a regulation to deal with an issue, but the regulation the Governor in Council makes does not substantively deal with the issue itself and instead purports to allow a chief executive to deal substantively with the issue under a public notice.