Chapter 15 - Delegated legislation and disallowance

Disallowance

Section 42(1) of the LIA provides:

If:

(a) notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and

(b) within 15 sitting days of that House after the giving of that notice, the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision;

the instrument or provision so disallowed then ceases to have effect.

Where a session of the Parliament ends because the House of Representatives is dissolved or expires, or the Parliament is prorogued, and a notice of motion to disallow has not been withdrawn or otherwise disposed of, the instrument in question is deemed to have been laid before the relevant House on the first sitting day of the new session (s. 42(3)). The opportunity to move disallowance is then renewed.

If, at the expiration of 15 sitting days after notice of a motion to disallow any instrument, given within 15 sitting days after the instrument has been tabled, the motion has not been resolved, the instrument specified in the motion is deemed to have been disallowed (s. 42(2)).

This provision ensures that, once notice of a disallowance motion has been given, it must be dealt with in some way, and the instrument under challenge cannot be allowed to continue in force simply because a motion has not been resolved. The provision greatly strengthens the Senate in its oversight of delegated legislation.

For precedents of instruments disallowed by effluxion of the prescribed time after giving notice, see 28/11/1985, J.637; 17/4/1986, J.925; 26/5/1992, J.2316-7.

On 5 March 1992 (J.2073-4) Senator Parer gave notice of motion to disallow all regulations made under the Political Broadcasts and Political Disclosures Act 1991. The notice was set down for the day on which the Government tabled the legal advice it had received on the validity of the regulations. The legal advice was not tabled and with the effluxion of time the regulations were deemed to be disallowed.

The disallowance provisions allow for the disallowance of an instrument or a “provision” of an instrument. A provision is regarded as any reasonably self-contained provision which can stand or fall alone.

Under the previous legislation, a regulation had to be disallowed in its entirety and could not be disallowed in part. While on its face more restricted than the current provisions, this gave rise to issues still relevant under the current legislation. A regulation, in a set of regulations, is one of the numbered series of provisions into which such a set is divided. The way in which the disallowance provisions applied to other kinds of delegated legislation depended on their form, but generally speaking a numbered item in a piece of legislation could be disallowed. This feature of disallowance procedure was the source of concern as a limitation on the Senate’s control over delegated legislation (for the views of the Standing Committee on Regulations and Ordinances, see 80th report, PP 241/1986). On 9 October 1990 (J.307-8) Senator Harradine withdrew a motion to disallow certain regulations relating to the Human Rights and Equal Opportunity Commission on the ground that he was unable to disentangle those he wished to disallow from the remainder. A notice was withdrawn by Senator Bartlett in similar circumstances in 2000, but only after a government undertaking to amend the regulations in question (11/10/2000, J.3375; see also SD 11/9/2003, pp 14926-30; 9/10/2003, pp 16008-11).

On 1 May 1986 the Senate disallowed export control orders which were self-contained and separately numbered, but which were contained in a single amending order. The Attorney-General’s Department and the Solicitor-General argued that the orders had not been validly disallowed and were still in force, on the basis that the Senate could disallow only the complete amending order. When the matter was litigated, however, the Federal Court found that the regulations had been disallowed (Borthwick v Kerin 1989 87 ALR 527). The Court suggested, without deciding, that “a regulation” means “each of the serially numbered collocations of words” in a set (at 537). (For this matter see SD, 15/6/1989, pp 4123-6.)

In light of this history, the interpretation of “provision” suggested here is likely to be adopted in future cases.

The question has also arisen of the interpretation of the expression “sitting day” in section 42 of the LIA. This question has not been adjudicated. Where two sittings of the House occur on one day, it is considered that this should be regarded as one sitting day; there would be two sittings, but it is not thought that there would be two sitting days. Where a sitting commences on one day and extends for a period beyond midnight (possibly a very short period) and a new sitting does not commence on the next day, the view taken is that the fact of continuation beyond midnight would not constitute an additional “sitting day”. Where one sitting extends over two or more full days, without the intervention of an adjournment, but by the process of suspension of the sitting, the view taken is that, while it may be argued that there has been only one sitting day, it should for safety be assumed that each of those days is a sitting day.

In June 2000 the Senate disallowed some regulations under the Customs Act which had already been deemed to be disallowed in the House of Representatives because of the expiration of the statutory time limit for resolving a notice of a disallowance motion given in the House (20/6/2000, J.2813). The purpose of this seemingly unnecessary action was to ensure that the regulations could not be remade without the consent of the Senate (see below, under Remaking of instruments following disallowance).

Another question which has arisen is whether it is possible for the Senate to pass a motion disallowing instruments which have already been held to be invalid by a court. On 25 August 1983 the Attorney-General’s Department submitted an opinion to the President that it was not possible for the Senate to do so. The Attorney-General subsequently took a point of order to this effect in the Senate, but no ruling was made in response to the point of order, and the notice of motion to disallow the regulations in question was withdrawn. A contrary opinion presented by Senate officers was that, just as invalid instruments may be repealed, they may also be disallowed by a House of the Parliament, either of those actions, repeal or disallowance, having the effect of terminating the existence of the invalid instruments. For text of opinions, see SD, 15/12/1983, pp 3858-9.

There are some forms of subordinate legislation with different approval or disallowance procedures. Some instruments require affirmative resolutions of both Houses to bring them into effect, while others do not take effect until the period for disallowance has passed. The Senate has amended bills to insert such provisions where it was thought that particular instruments merited special control procedures (see 12/12/1989, J.2355-61; 15/10/1992, J.2919-20; 25/11/1992, J.3115; 30/8/1995, J.3735-6; 23/8/2001, J.4732; 26/6/2002, J.477-8; 4/12/2003, J.2871; 4/3/2004, J.3085-6). One such amendment provided that a statute was not to operate until the regulations made under it were approved (12/12/1989, J.2358).

Disallowance motions in the Senate may be based on recommendations of the Regulations and Ordinances Committee, which have been, without exception, adopted by the Senate.

Disallowance motions may be moved other than at the initiation of the committee, and are often motivated by opposition to the policy manifested by the delegated legislation. Disallowance may also be on the basis that the matter should be addressed by legislation (for example, Artificial Conception Ordinance 1986, 9/4/1986, J.875).

On 3 February 1994 (J.1190), pursuant to notice, a senator moved a motion to disallow an instrument of delegated legislation (guidelines for eligible child care centres), identical in terms to a motion to disallow the same instrument which was negatived on 8 December 1993 (J.940). No point of order was taken to the effect that this was contrary to the same question rule. (See also 29/5/1997, J.2030.) A motion may not be moved it if is the same in substance as a motion which has been determined during the same session, unless the latter was determined more than six months previously (SO 86). As explained in Chapter 9, the same question rule is seldom applied, because it seldom occurs that a motion is exactly the same as a motion moved previously. Even if the terms of a motion are the same as one previously determined, the motion almost invariably has a different effect because of changed circumstances and therefore is not the same motion. There may also be different grounds for moving the same motion again.

This consideration arises particularly in relation to delegated legislation. A senator may move to disallow an instrument of delegated legislation on policy grounds, and the Regulations and Ordinances Committee may give notice of a motion to disallow the same instrument on grounds related to the committee’s criteria of scrutiny; the two motions are regarded as entirely separate, and the determination of one does not affect the other. Moreover, it could be argued that the same question rule could not prevent the operation of the relevant statutory provisions, which provide for disallowance subject only to the statutory time limit for giving notice. Therefore any disallowance motion may operate (and operate automatically if not withdrawn or determined) provided only that notice of it is given within the statutory time.

Having given a notice for a disallowance motion, a senator cannot be compelled to move the motion before the day for which the notice is given (see Chapter 9, Motions and Amendments, under Notice of motion).

The following are precedents for unusual proceedings involving disallowance: disallowance motion brought on early 9/10/1986, J.1273; disallowance notice given or deferred while instruments referred to committee 23,24,25/8/1988, J.850, 856, 885; 17/10/1988, J.1013; 11/10/1994, J.2252; regulations requiring approval to bring legislation into operation disallowed 16/5/1990, J.92; instruments subject to approval and amendment considered together with bill 17/12/1990, J.584, 589; disallowance motions ordered to be taken together 13/5/1991, J.1011; 29/8/2000, J.3139-40; 27/11/2000, J.3573; disallowance motion moved pursuant to contingent notice 17/11/1993, J.788; two disallowance motions moved together 29/5/1997, J.2030; 1/11/2000, J.3466.

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