Chapter 15 - Delegated legislation and disallowance

Withdrawal of notice of motion

If a senator, having given notice of a motion for disallowance, seeks to withdraw the notice, provision is made for another senator to take over the motion, thus averting the possibility that the Senate could be denied an opportunity of considering disallowance where the time for giving notice has passed. Standing order 78 provides:

(1) A senator who wishes to withdraw a notice of motion standing in the senator’s name to disallow, disapprove, or declare void and of no effect any instrument made under the authority of any Act which provides for the instrument to be subject to disallowance or disapproval by either House of the Parliament, or subject to a resolution of either House of the Parliament declaring the instrument to be void and of no effect, shall give notice to the Senate of the intention to withdraw the notice of motion.

(2) Such notice of intention shall be given in the same manner as a notice of motion, shall indicate the stage in the routine of business of the Senate at which it is intended to withdraw the notice of motion, and shall not have effect for the day on which it is given; except that, if given on a day on which by force of the statute the instrument shall be deemed to be disallowed if the motion has not been withdrawn or otherwise resolved, or on a day on which by force of the statute the motion must be passed in order to be effective, such notice of intention may have effect for a later hour of that day.

(3) If another senator, at any time after the giving of such notice of intention and before the withdrawal of the notice of motion, indicates to the Senate an objection to the withdrawal of the notice of motion, that senator’s name shall be put on the notice of motion, the name of the senator who wishes to withdraw the notice of motion shall be removed from it, and it shall not be withdrawn; but if no senator so objects to the withdrawal of the notice of motion, it may be withdrawn in accordance with such notice of intention.

These provisions ensure that the right of any senator to move disallowance is not lost by the withdrawal of a notice.

For instances of senators taking over disallowance motions, see 14/11/1986, J.1398; 18/12/1989, J.2389; 24/3/1992, J.2093; 10/9/1996, J.546. (See Supplement). In each instance, a senator was taking over the motion to disallow from the Regulations and Ordinances Committee chair. (See Supplement)

Where a senator wishes to withdraw a notice of motion for disallowance on the last day for resolving the notice and there is not time for notice of intention to withdraw to be given, the notice may be withdrawn by leave, but only after senators present have an opportunity to take over the notice (11/10/2000, J.3375). (See Supplement)

(See Supplement)

A notice of intention to withdraw a disallowance motion has the effect of postponing a notice which would otherwise be called on earlier to the time of intended withdrawal, unless another senator takes over the notice before that time, in which case it is called on at its due time. (See Supplement)

For the withdrawal without notice or leave of a notice of motion for disallowance which was not regarded as effective because it was given before the regulations concerned were tabled, see 19/6/2002, J.402-3, 408. For the withdrawal of a notice after the regulations concerned were disallowed, see 24/11/2003, J.2693.

An unusual resolution was passed on 30 June 1994 (J.2002) on the motion of the chair of the Regulations and Ordinances Committee to allow the committee to withdraw from the Notice Paper a notice of motion for the disallowance of certain Industrial Relations Court Rules during the winter long adjournment of the Senate. It was explained that, if the committee received a satisfactory undertaking from the Industrial Relations Court concerning the making of substitute rules, the withdrawal of the notice of motion would allow the Court to make substitute rules without waiting for the next meeting of the Senate and without running the risk of the new rules being held to be invalid under the predecessor of section 47 of the LIA. As explained above, this provision prohibits the making of delegated legislation the same in substance as legislation which is the subject of an unresolved disallowance motion. The High Court has taken a broad view of the meaning of “the same in substance” (Victorian Chamber of Manufactures v Commonwealth 1943 67 CLR 347), and new rules, while overcoming the objections of the Regulations and Ordinances Committee, might be legally the same in substance as the previous rules. The resolution preserved the right of any senator to prevent the withdrawal of the notice of motion until the Senate next met, thus keeping the spirit of standing order 78.

Standing order 83(2) provides that a motion not moved when the notice is called on is withdrawn. If, however, a senator declines to move a disallowance motion when the notice is called on (in the circumstance, for example, of the Senate rejecting a motion by the senator to postpone it), it is not withdrawn under standing order 83(2) until other senators have an opportunity to take it over and move it in accordance with standing order 78. On the senator declining to move the motion when the notice is called on, the chair designates either a time on the next day of sitting or a time later in the sitting (depending on whether it is the last day for resolving the matter) by which the notice will be withdrawn if no other senator takes it over. A senator taking over a disallowance notice in these circumstances is entitled to specify a future day for moving the motion, provided that that day is within the statutory time limit for resolving the notice. (17/10/2002, J.914)

Standing order 78 is regarded as applying to any disallowance-type provision even if it does not strictly fall within the language of the standing order. Thus leave was required to withdraw a notice of motion to amend disability standards under the Disability Discrimination Act 1992, the standards being subject to amendment and approval provisions inserted into the statute by amendment by the Senate (23/10/2002, J.967-8).

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