If you’ve been following the debate about the NDIS reforms, you might have come across the phrase ‘Henry VIII clause’.
If you’re not a lawyer or political professional, you might also have wondered what NDIS legislation could have to do with that English king who had a lot of wives.
This article explains what a Henry VIII clause is and how the Australian Government proposes using one in changes to the NDIS laws. But first, in typical lawyer fashion, I’m going to define some terms.
What’s Delegated legislation?
Most laws are made when a bill is taken to Parliament for a vote. Members of Parliament can read the bill, debate its merits and suggest amendments. If a majority votes for it, it becomes law.
‘Delegated legislation’ is law that is not made directly by Parliament, but by an authorised person (like a Minister, or a CEO) or a body (like an Agency) within the government.
Delegated legislation might be referred to as:
- regulations;
- rules;
- statutory instruments;
- determinations;
or plenty of other things. But the important thing to remember is if a law is made by a person or body other than Parliament, it’s delegated legislation.
This can only happen when the original law Parliament passed – known as the ‘head’ or ‘primary’ legislation – delegates power to a person or body to make further law.
So Parliament could – borrowing a civics illustration from the classic Simpsons episode – pass the ‘Flags for Orphans’ Bill, which said:
Section 1: Orphans are to be given flags to wave.
Section 2: The Minister for Early Childhood Education can make regulations about:
- the size of the flags;
- the number of flags each orphan receives;
- the material the flags are made out of; and
- any other relevant matter relating to section 1.
These regulations would be delegated legislation, which the Minister for Early Childhood Education could make without further approval from Parliament. They could also change them or issue new regulations at any time. In contrast, the original head legislation can only be changed with a majority vote in Parliament.
This makes delegated legislation much more flexible than head legislation. It can be appropriate to use delegated legislation to make laws that might need to be changed quickly or regularly, or that are highly detailed and technical (and so are best made by specialist Ministers or government actors rather than Parliament). It is widely used across basically all areas of government.
However, because delegated legislation doesn’t need to be voted on in Parliament, there is less accountability. This means it’s important to get the balance right around giving the power to make delegated legislation. Usually, the head legislation should set out the big picture of what the law will do, and delegated legislation is used to shade in the details.
So what’s a Henry VIII clause?
A ‘Henry VIII clause’ is where head legislation allows for delegated legislation to change how the head legislation operates.
This is particularly unusual because it reverses the way the relationship between head legislation and delegated legislation normally works.
Usually, if delegated legislation is inconsistent with the head legislation, the delegated legislation is invalid. Using our above example about the Flags for Orphans Act, if the Minister for Early Childhood Education tried to make the Flags for Orphans Regulation say:
‘Orphans will not receive flags.’
this would be invalid because it’s inconsistent with the head legislation, the Flags for Orphans Act.
But, if the head legislation, the Flags for Orphans Act, said:
‘The Minister for Early Childhood Education can make regulations about…, including where this would alter the operation of the Flags for Orphans Act.’
That’s a Henry VIII clause. And the Flags for Orphans Regulation, which says orphans will not receive flags, would be valid.
There are a few important things to say about Henry VIII clauses.
The name comes from Henry VIII
This isn’t that important, but I don’t want to leave you wondering.
The clause got its name because King Henry VIII, in 1539, convinced the English Parliament to pass the Proclamation by the Crown Act. This said he could make proclamations that would be as enforceable as an Act of Parliament. This is considered one of the earliest examples of using a Henry VIII clause to permit executive overreach.
Feel free to whip that one out at your next dinner party.
Henry VIII clauses are legal
There’s nothing in the Constitution that says you can’t have a Henry VIII clause. As a result of this vacuum, Australian courts have accepted they are lawful.
However, some court decisions have expressed unease about these clauses, particularly that they let the government make laws with limited accountability.
Parliament has repeatedly said they should be used very cautiously
While Ministers and governments can be very keen on Henry VIII clauses, Parliament is often very cautious about passing them. This makes sense, since it involves Parliament voting away some of its own power. Parliamentarians and Parliamentary committees considering bills with Henry VIII clauses regularly express this unease – although it doesn’t always stop them from voting for the bill in the end.
The Senate Scrutiny of Bills Committee responsible for reviewing Bills has shown approval for the view they should only be used where:
- there’s a strong need for, or benefit to, having a Henry VIII clause;
- the Henry VIII clause power is made as narrow as possible; and
- there are appropriate safeguards in place around the power.[1]
There’s a big Henry VIII clause in the NDIS Bill
The NDIS Bill currently before Parliament gives the Minister the power to make rules related to the transition to NDIS reforms.[2] The Bill also says these rules can modify how any provision of the NDIS Act operates.
Applying what we’ve learned above, that would mean the delegated legislation (the rules) is modifying the effect of head legislation (the NDIS Act)- so it’s a Henry VIII clause.
It might help to compare this Henry VIII clause to the guidance above.
1. Is there a strong need for the Henry VIII clause?
We don’t really know. The ‘Explanatory Memorandum’ to the bill – a document that’s supposed to explain what each part of the bill does and why it’s important – just says the Henry VIII clause is to let the government address ‘unforeseen or ancillary matters that are necessary to ensure the effective and orderly operation of the NDIS during the transition period’.
What might those unforeseen or ancillary matters be? We have no idea. That’s partly the nature of ‘unforeseen’ matters – they’re unforeseen, so you can’t explain them in advance. And it’s worth noting that previous Henry VIII clauses have been used in the NDIS to fix issues that could cause problems for participants. So, it’s possible there could be an important reason to have the Henry VIII clause, but it’s hard to be sure (particularly because if issues do emerge, Parliament could always pass a fresh law to fix them).
2. Is the power as narrow as possible?
Just to reiterate the point above: the proposed Henry VIII clause in this bill authorises rules that can modify the way any provision in the NDIS Act works. That means these rules could alter:
- NDIS access;
- planning;
- plan management;
- the way the NDIA and the Quality and Safeguards Commission, operate;
- provider regulation; and
- just about anything else to do with the NDIS.
I wouldn’t call that particularly narrow.
- Are there appropriate safeguards around the power?
There are some safeguards in the bill around the power. These transitional rules can only be made within the 6 months after the bill becomes law,[3] and would expire after 12 months. The rules also aren’t allowed to:
- create criminal offences;
- provide powers of arrest or search and seizure;
- levy taxes; or
- take money out of Treasury.
These are good limits – it’s particularly important changes made through these transitional rules won’t be permanent. But there are still many very significant things a Minister could do with this power.
So how concerned should I be?
For the reasons we’ve discussed, I think everybody should be at least somewhat concerned about Henry VIII clauses and their potential overuse. When we’re talking about something as important as the NDIS, there should be accountability and safeguards to ensure our elected representatives oversee the Scheme and the law that governs it.
However, the Henry VIII clause is just one small part of a very big bill that does a LOT of other things – many of which are potentially even more concerning. (My colleagues and I at the Justice and Equity Centre have tried to list these out in our Explainer). I’m not going to tell you to be more concerned about the Minister potentially making bad rules without accountability, than about the concrete impact of what the bill specifically says it will do. Ultimately, I think the Henry VIII clause is one of a long list of parts of the bill that should be amended or withdrawn; even if it’s not at the top of the list.
[1] This test was originally put forward by the Australian Law Reform Commission in 2023; the Senate Scrutiny of Bills Committee picked it up in 2026 and said it was ‘instructive guidance’.
[2] That’s in Schedule 5, subsection 1(1).
[3] With a few exceptions, that can be made for 12 months. It was originally going to be 12 months for everything, but the Greens and the government made a deal to reduce it to 6.
