Chapter 15 - Delegated legislation and disallowance

Ministerial undertakings

The Standing Committee on Regulations and Ordinances follows a practice of giving notices of motions to disallow regulations or other subordinate legislation within the prescribed period, and then withdrawing the notices after correspondence with the responsible minister satisfies the committee’s concerns.

Giving notices of motions to disallow indicates concern about the delegated legislation in question, and these are known colloquially as protective notices of motion, in that they protect the right of the committee, and of any senator, to move disallowance if it is subsequently decided that this is appropriate. Such concern is often allayed by further explanatory material from the minister or an undertaking to amend the legislation. Where the committee’s concerns are met, the notice of motion to disallow is withdrawn (although it may be taken over by another senator). There are some occasions where the responsible minister does not satisfy the committee and the motion to disallow proceeds.

Frequently a protective notice of motion is withdrawn on the basis of undertakings from a minister to take action addressing the matters causing concern, usually by amending the legislation in question.

The practice of ministerial undertakings has the benefit of securing an outcome agreeable to the committee without necessarily interrupting administration and implementation of policy by disallowance of the instruments in question.

Undertakings, however, must be carried out promptly for this system to work. This is a source of serious, continuing and active concern to the committee. During a period when there was a particularly notable failure to fulfil undertakings promptly, the committee observed:

A highly unsatisfactory situation arises when undertakings by Ministers are not carried out promptly and expeditiously, in that provisions recognised to be defective are allowed to stand and the public effectively lack the protection which the disallowance procedure and the Committee are designed to give. (62nd report, PP 203/1978)

In its annual report for 1986-87 the committee again recorded its apprehensions about delays in giving effect to ministerial undertakings:

The Committee is concerned that it could undermine the whole basis of parliamentary honour on which the undertaking convention is based, if the implementation of undertakings is not expedited as quickly as possible after a Minister has given his or her word to act. To countenance excessive delay is not only a discourtesy to the Senate but it is also a continuing affront to principles of freedom, justice, fairness and propriety if objectionable provisions are left on the delegated statute book in spite of parliamentary requests for amendments and in contravention of ministerial commitments to make amendments. (83rd report, PP 377/1988)

See also a statement by the chair of the committee, SD, 6/2/1995, pp 515-9.

It is customary for the committee, in its general reports, to record all undertakings which have been given and discharged, and those which have been given and are still to be implemented.

Senators other than the chair of the committee also occasionally withdraw disallowance motions on the basis of ministerial undertakings (30/11/1994, J.2627, SD, pp 3585-9; 28/6/1995, J.3551-2, SD, pp 1932-3). Undertakings may also be accepted by the Senate in determining whether to disallow instruments (19/10/1995, J.3972; SD, 30/11/1995, pp 4393-400). (see Supplement)

For a precedent of ministerial undertakings given following report of a committee on regulations, see the report of the Legal and Constitutional Affairs Committee on the Australian Nuclear Science and Technology Organisation Regulations, presented on 8 November 1994 (PP 222/1994), and Senate Debates of the same date, pp 2585-91.

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