Tabling as a condition of disallowance
A legislative instrument not laid before each House within 6 sitting days after registration ceases to have effect (LIA s. 38(3)). The question arises whether it is necessary for a regulation to be tabled before disallowance is initiated.
In Dignan v Australian Steamships Pty Ltd 1931 45 CLR 188, the High Court by a majority (Rich, Starke and Dixon JJ. — Gavan Duffy, C.J. and Evatt J. dissenting) held that the disallowance by the Senate of certain Transport Workers (Waterside) Regulations on 26 March 1931 (J.254-5), after they had been tabled (as noted earlier) by the Leader of the Opposition in the Senate (Senator Pearce) rather than a minister, was an effective disallowance.
In 1942, Senator Spicer, the then Chairman of the Senate Regulations and Ordinances Committee, prepared a memorandum on the subject with the aim of determining the practice which should be followed by the Senate. His memorandum concluded:
An analysis of the judgments in this case (ie. Dignan’s case) discloses, therefore, that only two of the five Judges committed themselves to the view that the regulations need not be laid before the House before disallowance, but a majority of the Court, including the two Judges referred to, held that the regulations had been effectively laid before the House, by reason of the motion under S.O. 364.
In these circumstances the question whether disallowance will be effective in a case in which a regulation has not been laid before the House at all is still an open one as far as the High Court is concerned. Any doubt on the matter can be avoided if motions for disallowance are not moved before regulations are laid before the House either by a member of the Executive or by order of the Senate, and this would seem to be ample justification for continuing to follow that procedure.
Although Dignan’s case was decided under section 10 of the Acts Interpretation Act 1904-1930, which has since been repealed by the Act of 1937 (No. 10), the new section, 48, which has been inserted in its stead is for this purpose not materially different from the section with which the High Court had to deal. It seems to me that the views I have expressed above are as applicable to the new section as to the section which was under consideration in Dignan’s case.
In support of his contention that notice of disallowance should be given subsequent to the tabling of the regulations and within fifteen sitting days of such tabling, Senator Spicer instanced the speeches of ministers, the submissions of counsel for the government, and the judgment of at least one High Court Judge (Dr H.V. Evatt). “With this backing”, he submitted, “there is learned and authoritative justification for the view that to require notice of disallowance to be delayed until after the regulations are tabled is giving effect to the proper intention of the provision in the Acts Interpretation Act.”
This analysis applies equally to the provisions of the LIA.
In 1988 (23/8/1988, J.850) Senator Puplick gave notice of a motion to disallow regulations before they were tabled. The notice was withdrawn on 25 August 1988 (J.878) but revived four days later when the regulations were eventually tabled. (See also Workplace Relations Regulations, 15-16/2/1999, J.436, 450-1.)
In 2002 a disallowance motion was moved by leave immediately after a minister, in response to a resolution of the Senate, tabled the regulations in question. Notice of a motion to disallow the same regulations, given before the regulations were tabled, was withdrawn (18/6/2002, J.381; 19/6/2002, J.402-3, 408).
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