Chapter 15 - Delegated legislation and disallowance

Amendment of disallowance motion

The following principles apply to amendment of notices of motion for disallowance and amendment of disallowance motions after they are moved:

  • an amendment to reduce the scope of a motion (for example, by confining it to particular regulations or a lesser number of regulations) may be made regardless of whether the time for giving notice has expired, because the original notice is effective for the statutory purpose of giving notice within the statutory time limit

  • an amendment to expand the scope of a motion (for example, by extending it to other regulations not covered by the original motion) may not be made unless the time for giving notice has not expired, because the original notice is not effective for that purpose.

On 14 November 1935 (J.125) a motion of disallowance was amended by leave to confine it to a lesser number of regulations. A point of order was taken that the amendment was not in order in that the law required that disallowance motions be submitted after notice had been given within a specified time, and no notice had been given of the motion as amended. President Lynch, for the reasons submitted, ruled the amendment not in order. This ruling was not correct and has not since been followed. Notice had been given of a motion for the disallowance of the whole of the regulations, and the notice extended to any of the regulations. A court would probably have held the proposed motion for disallowance, as amended, to be lawful, given the view of Dignan v Australian Steamships Pty Ltd 1931 45 CLR 188, that the provision as to notice is directory and not imperative.

Thus on 26 May 1972 (J.1016-7) a motion was moved for disallowance of the Legal Practitioners Ordinance of the Australian Capital Territory and an amendment proposed to limit the disallowance to sections 10 and 11. No objection was taken to the propriety of the amendment. For further precedent, see 4/5/1987, J.1801 (amended on Notice Paper 4/5/1987). For motions amended by leave, see 8/11/2000, J.3523; 30/11/1995, J.4310; 28/11/1996, J.1143.

For a case of a disallowance motion amended by leave to restrict its scope, and an amendment moved to expand its scope within the original notice, see Parliamentary Entitlements Amendment Regulations, 20/8/2003, J.2249-50.

Although there is at least one precedent, in 1987, for an amendment to a notice of motion for disallowance to reduce its scope by means of a letter under standing order 77, this practice is not followed because a senator who wishes to support the disallowance of certain regulations, for example, may find that a notice has been amended so that it no longer covers those regulations without the senator being aware of the amendment. This problem potentially arises regardless of whether the time for giving notice has expired. Therefore, when a senator wishes to amend a notice of motion to reduce its scope, this is done by way of giving notice of intention to amend the notice, similar to the notice of intention under standing order 78. If the time for giving notice has not expired, another senator can then give a fresh notice to cover the particular items the senator wishes to disallow. If the time for giving notice has expired, another senator can take over the notice in so far as it relates to such items (23/6/1997, J.2165). For a notice narrowed in scope by a standing order 77 notice (after notice of intention), and an amendment moved to further narrow it, see Notice Paper 24/3/2004 and 24/3/2004, J.3223.

An example of a notice of motion to disallow extended in scope when the time limit for giving notice had not expired occurred on 28 April 1992 when Senator Harradine, pursuant to standing order 77, amended an original notice to extend its scope (Notice Papers, 28/4/1992, p. 1; 29/4/1992, p. 22). (See Supplement)

Words may be added to a disallowance motion to give reasons for disallowance; for precedents, see 30/4/1969, J.452; 9/11/1978, J.455.

For amendments to substitute words not having the effect of disallowance, see 13/5/1991, J.1013; 26/10/1995, J.4057-8.

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