Chapter 15 - Delegated legislation and disallowance

Remaking instruments subject to tabling and disallowance

Once a legislative instrument has been made, no instrument the same in substance may be made within a defined period unless approved by both Houses by resolution. The defined period ends seven days after the original instrument has been laid before both Houses, or the later of the two days when the instrument is tabled on different days in the Houses; or after the last day on which the instrument could have been so tabled (LIA s. 46).

Similarly, where notice of a motion to disallow a legislative instrument has been given in either House within 15 sitting days of the instrument being laid before that House, another instrument the same in substance may not be made unless the notice has been withdrawn; the instrument is deemed to have been disallowed under section 42(2); the motion has been withdrawn or otherwise disposed of; or section 42(3) has applied in relation to the instrument (see below). Similar restrictions also apply to instruments if they are deemed to have been tabled again following a dissolution, expiration or prorogation of the House of Representatives (s. 42(2)).

These provisions were inserted in the statute in 1988 after the Regulations and Ordinances Committee pointed out that the disallowance provisions could be defeated by a succession of instruments repealing and remaking their predecessors (82nd report of the committee, PP 311/1987).

The expression “the same in substance” has been judicially construed to refer to “any regulation which is substantially the same .... in the sense that it produces substantially, that is, in large measure, though not in all details, the same effect” (Victorian Chamber of Manufactures v the Commonwealth 1943 67 CLR 347 at 364).

See also Remaking of instruments following disallowance, below.

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