Chapter 15 - Delegated
legislation and disallowance
Remaking instruments subject to tabling and disallowance
Once a legislative instrument has been
made, no instrument the same in substance may be made within a defined period
unless approved by both Houses by resolution. The defined period ends seven
days after the original instrument has been laid before both Houses, or the
later of the two days when the instrument is tabled on different days in the
Houses; or after the last day on which the instrument could have been so tabled
(LIA s. 46).
Similarly, where
notice of a motion to disallow a legislative instrument has been given in
either House within 15 sitting days of the instrument being laid before that
House, another instrument the same in substance may not be made unless the
notice has been withdrawn; the instrument is deemed to have been disallowed
under section 42(2); the motion has been withdrawn or otherwise disposed of; or
section 42(3) has applied in relation to the instrument (see below). Similar
restrictions also apply to instruments if they are deemed to have been tabled
again following a dissolution,
expiration or prorogation of the House of Representatives (s. 42(2)).
These provisions were inserted in the statute in 1988 after the Regulations and
Ordinances Committee pointed out that
the disallowance provisions could be defeated by a succession of instruments
repealing and remaking their predecessors (82nd report of the committee,
PP 311/1987).
The expression “the same in substance” has been judicially construed to
refer to “any regulation which is substantially the same .... in the sense that
it produces substantially, that is, in large measure, though not in all
details, the same effect” (Victorian Chamber of Manufactures v the
Commonwealth 1943 67 CLR 347 at
364).
See also Remaking of instruments following disallowance, below.
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