Chapter 15 - Delegated legislation and
disallowance
Making and tabling 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.
Section 48 of the Acts Interpretation Act provides that all regulations:
(a) shall be notified in the Gazette;
(b) shall, subject to this section, take effect from:
(i) a specified date;
(ii) a specified time on a specified date;
(iii) the date, or date and time, of commencement of a specified Act or a specified provision of an Act; or
(iv) in any other case — the date of notification; and
(c) shall be laid before each House of the Parliament within 15 sitting days of that House after the making of the regulations.
As has been noted, these provisions also apply to many disallowable instruments.
Notification in the Commonwealth Gazette is sufficient if the notice indicates that the regulations have been made and specifies the place where copies can be purchased (Statutory Rules Publication Act 1903, s. 5).
Regulations not laid before each House within the prescribed period after making cease to have effect (AIA, s. 48(3)). Regulations are made on the day on which they are signed by the relevant authority.
This system to enforce tabling is not totally fool-proof. In 1990 it was discovered that disallowable rules under the Aboriginal and Torres Strait Islander Commission Act for election of regional councils and special rules for election and composition of the Torres Strait Islands regional council had not been tabled as required. The Act requires that elections be held under rules in force at the time when elections are called. As it happens, when the elections were called the time for tabling had not expired. Thus, as the Federal Court found, the elections themselves were valid (Thorpe v Minister for Aboriginal Affairs 1990 97 ALR 543).
Normally instruments required to be tabled are forwarded by the responsible department or agency to the Clerk of the Senate, and are tabled by the Clerk at a convenient time in the proceedings.
On occasions failure by departments to forward instruments for tabling has caused considerable legal difficulties. Such a situation was revealed by a statement by the Minister for Industry, Science and Technology, SD, 26/6/1995, pp 1737-9; the instruments in question had to be validated retrospectively by amendments to the Export Market Development Grants Amendment Bill 1994 and by the Industry Research and Development Amendment Bill 1995, and in each case the Senate made amendments to preserve the rights of persons affected by adverse decisions under the invalid instruments to seek redress by litigation. There have been other significant failures by government departments to forward delegated legislation for tabling within the statutory time limit, resulting in that legislation ceasing to have effect, with serious consequences (see statements by the Regulations and Ordinances Committee, SD, 10/10/1996, pp 3854-6; 3/12/1996, pp 6566-8).
It is not essential, however, that regulations be provided for tabling by a minister, or any other member of the government. Once a regulation has been notified in the Gazette, as is necessary for it to come into effect, it is open to any senator to seek to table it. On 26 March 1931 (J.253-5), Transport Workers (Waterside) Regulations were tabled by the Leader of the Opposition in the Senate, Senator Sir George Pearce, in conformity with an order of the Senate. Senator Pearce had quoted the gazetted regulations earlier in the day during a speech on a motion for adjournment to debate a matter of urgency; in tabling the regulations he was responding to a motion under then standing order 364 (now 168(2)) that they be laid on the table. The regulations were subsequently disallowed.
Private senators have tabled regulations on other occasions. On 14 December 1989 (J.2380), Senator Patterson tabled regulations made under the National Health (Pharmaceutical Benefits) Act; these were disallowed on 22 December 1989 (J.2463). On 2 June 1994 (J.1743) Senator Bell tabled regulations under the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act.
There is a statutory 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 (AIA, s. 48(2)).
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