Chapter 15 - Delegated legislation and disallowance


Section 38 of the LIA provides that copies of all legislative instruments be laid before each House of the Parliament within 6 sitting days of that House after registration. Instruments not laid before each House within the prescribed period after registration cease to have effect (LIA, s. 38(3)).

This system to enforce tabling, which was similar under the earlier legislation, may not be totally fool-proof. In 1990 it was discovered that disallowable rules under the Aboriginal and Torres Strait Islander Commission Act for election of regional councils and special rules for election and composition of the Torres Strait Islands regional council had not been tabled as required. The Act required that elections be held under rules in force at the time when elections were called. As it happened, when the elections were called the time for tabling had not expired. Thus, as the Federal Court found, the elections themselves were valid (Thorpe v Minister for Aboriginal Affairs 1990 97 ALR 543).

Normally instruments required to be tabled are forwarded by the responsible department to the Clerk of the Senate, and are tabled by the Clerk at a convenient time in the proceedings.

On occasions failure by departments to forward instruments for tabling has caused considerable legal difficulties. Such a situation was revealed by a statement by the Minister for Industry, Science and Technology, SD, 26/6/1995, pp 1737-9; the instruments in question had to be validated retrospectively by amendments to the Export Market Development Grants Amendment Bill 1994 and by the Industry Research and Development Amendment Bill 1995, and in each case the Senate made amendments to preserve the rights of persons affected by adverse decisions under the invalid instruments to seek redress by litigation. There have been other significant failures by government departments to forward delegated legislation for tabling within the statutory time limit, resulting in that legislation ceasing to have effect, with serious consequences (see statements by the Regulations and Ordinances Committee, SD, 10/10/1996, pp 3854-6; 3/12/1996, pp 6566-8).

It is not essential, however, that regulations be provided for tabling by a minister, or any other member of the government. Once an instrument has come into effect, it is open to any senator to seek to table it. On 26 March 1931 (J.253-5), Transport Workers (Waterside) Regulations were tabled by the Leader of the Opposition in the Senate, Senator Pearce, in conformity with an order of the Senate. Senator Pearce had quoted the gazetted regulations earlier in the day during a speech on a motion for adjournment to debate a matter of urgency; in tabling the regulations he was responding to a motion under then standing order 364 (now 168(2)) that they be laid on the table. The regulations were subsequently disallowed.

(See Supplement) Private senators have tabled regulations on other occasions. On 14 December 1989 (J.2380), Senator Patterson tabled regulations made under the National Health (Pharmaceutical Benefits) Act; these were disallowed on 22 December 1989 (J.2463). On 2 June 1994 (J.1743) Senator Bell tabled regulations under the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act.

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