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Odgers' Australian Senate Practice Thirteenth Edition

Chapter 15 - Delegated legislation and disallowance

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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The disallowance of an instrument which repeals, in whole or in part, an earlier instrument revives the repealed provision from and including the date of disallowance of the repealing instrument.[85]

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question of whether the disallowance of an instrument which repeals another instrument has the effect of reviving the repealed instrument.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 The common law rule of revival is that repeal of a statute which has repealed an earlier statute has the effect of reviving the earlier repealed statute.[86] On 26 May 1981 the Attorney-General informed the Senate that the Government had decided to introduce amendments to the legislation to implement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. [87] This was done in 1982.

In 2009 the effect of disallowing an item in the table of Medicare rebates was the subject of Senate consideration. Disallowance of an individual item does not revive the preceding item unless the whole of the regulations are disallowed. This is because the regulations repeal the previous regulations and disallowance of this provision is necessary to trigger the revival. In any case, as these particular regulations expire annually by force of statute, disallowance of the whole regulation would result in temporary revival only. If an item is disallowed then, without any other action, a gap is left in the rebate tables in respect of the item. The non-government parties sought to address the problem with a bill to provide that the disallowance of any item would revive the previous item (Health Insurance Amendment (Revival of Table Items) Bill 2009). Although the bill was passed by the Senate, debate on it was suppressed in the House of Representatives, the government claiming it had legal advice that the bill was ‘unconstitutional’. Neither the advice nor the grounds for this view have been disclosed.

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.

85. LIA, s. 45(2).
86. PP 116/1979; SD, 8/6/1979, pp. 2932-3.
87. SD, pp. 2084-6. In relation to statutes, however, the common law rule has been reversed.