Odgers' Australian Senate Practice Thirteenth Edition

Chapter 15 - Delegated legislation and disallowance

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Making of delegated legislation

The procedures for making delegated legislation are markedly different from those used in enactment of a statute. There are no stages for legislative passage or opportunity for amendment, and there are no procedural restraints upon rushed legislation.

The LIA:

  • defines a legislative instrument as an instrument that is of legislative character, and that is made in the exercise of a power delegated by the Parliament (s. 5)
  • establishes the Federal Register of Legislative Instruments, an authoritative source for all delegated legislation accessible in, and maintained in, electronic form (ss. 20-22)
  • requires that (unless specifically exempted) all legislative instruments be registered (s. 24), and provides that no legislative instrument will be enforceable unless it is registered (s. 31)
  • requires the provision of an explanatory statement to accompany each instrument (s. 26)
  • encourages rule-makers to undertake appropriate consultation, and to report on that consultation in the explanatory statement (ss. 17-19).

There is a prohibition on retrospectivity of delegated legislation where the rights of a person are affected to the disadvantage of that person, or where liabilities are imposed on a person. These limits do not, however, apply to the rights of the Commonwealth or a Commonwealth authority.[8]

8. LIA, s. 12(2).