Odgers' Australian Senate Practice Thirteenth Edition

Chapter 15 - Delegated legislation and disallowance

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Remaking of instruments following disallowance

Section 48 of the LIA provides:

  1. If, under section 42, a legislative instrument or a provision of a legislative instrument is disallowed, or is taken to have been disallowed, a legislative instrument, or a provision of a legislative instrument, that is the same in substance as the first-mentioned instrument or provision, must not be made within 6 months after the day on which the first-mentioned instrument or provision was disallowed or was taken to have been disallowed, unless:
  1. if the first-mentioned instrument or provision was disallowed by resolution—the resolution has been rescinded by the House of the Parliament by which it was passed; or
  2. if the first-mentioned instrument or provision was taken to have been disallowed—the House of the Parliament in which notice of the motion to disallow the instrument or provision was given by resolution approves the making of a legislative instrument or provision the same in substance as the first-mentioned instrument or provision.
  3. Any legislative instrument or provision made in contravention of this section has no effect.

For the meaning of “the same in substance” see above, under Remaking instruments subject to tabling and disallowance.

The statute was amended in 1932 to include this provision that a disallowed regulation was not to be remade unless the resolution of disallowance was rescinded. Introducing the amending legislation to the Senate, the Acting Attorney-General (Senator McLachlan) recalled the events of the previous year relating to the disallowance of regulations and the reenactment of others which were substantially the same. Those circumstances were the subject of an address to Governor-General Isaacs requesting that he refuse to sanction further regulations, during the then session, being the same in substance as those already disallowed.[79] Although the Governor-General, in his reply, could not comply with the Senate’s request, the subsequent amending legislation met the wishes of the Senate.[80]

The standing orders were also amended in 1932 to ensure that the general rule that the same question is not to be again proposed during the same session should not operate to prevent the proposal of a motion for the disallowance of an instrument substantially the same as one previously disallowed during the same session.[81] But in view of the statutory restrictions on the remaking of disallowed instruments, this provision in the standing orders can, in practice, relate only to instruments remade more than six months after the date of disallowance.

Motions to allow the remaking of delegated legislation disallowed by the Senate usually arise from the complex character of that legislation: the Senate is often not able to disallow provisions regarded as objectionable without also striking down some acceptable provisions.[82] As explained in Chapter 9, these motions are not technically rescission motions and are now not treated as such.[83]

On 9 March 2010 the government withdrew a notice of motion to permit the remaking of Aviation Transport Security Amendment Regulations which the Senate disallowed on 10 September 2009, the six month moratorium on remaking regulations the same in substance having expired. The regulations were remade and subsequently disallowed again on 24/6/2010. [84]

See under Disallowance, above, for disallowance of instruments already disallowed or invalidated, and repetition of the same disallowance motion.

For an analysis of the same question rule, see Chapter 9, Motions and Amendments, under that heading. See also that chapter for an analysis of the meaning of rescission, and the point that motions to permit the remaking of delegated legislation are not technically rescission motions.

79. 28/5/1931, J.292.
80. 10/6/1931, J.294-5.
81. SO 86.
82. For precedents see 25/6/1992, J.2633-5; 17/10/1994, J.2298; 9/10/1996, J.668; 4/12/1996, J.1192.
83. 13/5/2004, J.3415; 16/9/2008, J.857.
84. J.3772.