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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 15 - Delegated legislation and disallowance

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The power to enact laws is a primary power of Parliament. Parliament, however, frequently enacts legislation containing provisions which empower the executive government, or specified bodies or office-holders, or the judiciary, to make regulations or other forms of instruments which, provided that they are properly made, have the effect of law. This form of law is referred to as “delegated legislation”, “subordinate legislation” or “legislative instruments”. The last is the statutorily-established term. This is law made by the executive government, by ministers and other executive office-holders, without parliamentary enactment. This situation has the appearance of a considerable violation of the principle of the separation of powers, the principle that laws should be made by the elected representatives of the people in Parliament and not by the executive government. The principle has been largely preserved, however, by a system for the parliamentary control of executive law-making. This system, which has been built up over many years, principally by the efforts of the Senate, is founded on the ability of either House of the Parliament to disallow, that is, to veto, such laws made by executive office-holders.

Executive law-making

Types and volume of delegated legislation

Parliamentary control: historical background

Making of delegated legislation

Tabling

Remaking instruments subject to tabling and disallowance

Disallowance

Disallowance motion without notice

Precedence of disallowance motion

Tabling as a condition of disallowance

Amendment of disallowance motion

Consideration in committee of the whole

Withdrawal of notice of motion

Effect of end of a Parliament or session

Ministerial undertakings

Remaking of instruments following disallowance

Disallowance of a repealing instrument

“Sunsetting” of instruments

Consultation

National uniform legislation and state referrals of power

Regulations and Ordinances Committee

Scrutiny of Delegated Legislation