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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 15 - Delegated legislation and disallowance

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Disallowance motion without notice

While the statutory provisions refer to notice being given of a motion for disallowance, the Senate may disallow tabled regulations without notice if standing orders are suspended to do so. When the matter came before the High Court in the case concerning the Transport Workers Regulations, Rich J. held that the statutory provisions as to notice are directory, not imperative.[46]

The Senate may also suspend standing orders to enable a notice of motion of disallowance, having effect for that day, to be given and the motion then moved. This occurred on 20 June 1967 when a special meeting of the Senate was held, at the request of an absolute majority of senators, in order to have the opportunity to move for disallowance of certain postal and telephone regulations. [47] After some formal business, the Leader of the Opposition, Senator L.K. Murphy, moved:

That so much of the Standing Orders be suspended as would prevent a Notice of Motion from being now given by Senator Murphy, and having effect for this day, for the disallowance of the Regulations contained in Statutory Rules 1967, Nos. 74, 75, 76 and 77, and made under the Post and Telegraph Act 1901-1966.

The motion being agreed to, Senator Murphy then gave notice of motion for the disallowance of the regulations. Then he moved, pursuant to that notice, that the regulations be disallowed, which motion was agreed to.[48]

Given that notice is not necessary, this elaborate procedure need not be followed and a motion may be moved by leave.[49]

46. Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188 at 198.
47. J.153.
48. 20/6/1967, J.153.
49. For a motion moved by leave after notice was given of it on the same day, see 1/11/2000, J.3466. For disallowance motions moved by leave immediately after the tabling of the regulations by a minister, see 19/12/1991, J.1990; 19/6/2002, J.402-3; pursuant to a contingent notice immediately after tabling, 24/11/2003, J.2692-3.