Chapter 15 - Delegated legislation and disallowance

Disallowance of a repealing instrument

The disallowance of an instrument which repeals, in whole or in part, an earlier instrument revives the repealed provision from and including the date of disallowance of the repealing instrument. (LIA, s. 45(2))

In its 66th report in 1979, the Regulations and Ordinances Committee considered the question of whether the disallowance of an instrument which repeals another instrument has the effect of reviving the repealed instrument. There appeared then to be obscurity in the law on this matter and the committee considered that the obvious solution was for the legislation to be amended so as to provide explicitly for the effect of the disallowance of a repealing instrument. The committee was strongly in favour of the common law rule of revival being applied to the disallowance of regulations and other instruments. The common law rule of revival is that repeal of a statute which has repealed an earlier statute has the effect of reviving the earlier repealed statute. (PP 116/1979; SD, 8/6/1979, pp 2932-3) (In relation to statutes, however, the common law rule has been reversed.) On 26 May 1981 (SD, pp 2084-6) the Attorney‑General informed the Senate that the Government had decided to introduce amendments to the legislation to implement the committee’s recommendation, that is, that the common law rule of revival should, by statute, be applied to the parliamentary disallowance of all instruments. This was done in 1982. (See Supplement)

In 1996 a new government adopted the tactic of disallowing the regulations of its predecessor in the House of Representatives, thereby avoiding the making of repealing regulations which could be disallowed by the Senate. The Senate passed a motion condemning this practice (27/6/1996, J.422-3).

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