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Chapter 15 - Delegated
legislation and disallowance
Disallowance
Section 42(1) of the LIA provides:
If:
(a) notice of a motion
to disallow a legislative instrument or a provision of a legislative instrument
is given in a House of the Parliament within 15 sitting days of that House
after a copy of the instrument was laid before that House; and
(b) within 15 sitting
days of that House after the giving of that notice, the House passes a
resolution, in pursuance of the motion, disallowing the instrument or
provision;
the instrument or provision so disallowed then ceases
to have effect.
Where
a session of the Parliament ends because the House of Representatives is
dissolved or expires, or the Parliament is prorogued, and a notice of motion to
disallow has not been withdrawn or otherwise disposed of, the instrument in
question is deemed to have been laid before the relevant House on the first
sitting day of the new session (s. 42(3)). The opportunity to move
disallowance is then renewed.
If, at the
expiration of 15 sitting days after notice of a motion to disallow any instrument,
given within 15 sitting days after the instrument has been tabled, the motion
has not been resolved, the instrument specified in the motion is deemed to have
been disallowed (s. 42(2)).
This provision ensures that, once notice of a disallowance motion has
been given, it must be dealt with in some way, and the instrument under
challenge cannot be allowed to continue in force simply because a motion has
not been resolved. The provision greatly strengthens the Senate in its
oversight of delegated legislation.
For precedents of
instruments disallowed by effluxion of the prescribed time after giving notice,
see 28/11/1985, J.637; 17/4/1986, J.925; 26/5/1992, J.2316-7.
On 5 March 1992 (J.2073-4) Senator Parer gave notice of motion to
disallow all regulations made under the Political Broadcasts and Political
Disclosures Act 1991. The notice was set down for the day on which the
Government tabled the legal advice it had received on the validity of the
regulations. The legal advice was not tabled and with the effluxion of time the
regulations were deemed to be disallowed.
The disallowance provisions allow for the disallowance of an instrument
or a “provision” of an instrument. A provision is regarded as any reasonably
self-contained provision which can stand or fall alone.
Under the previous legislation, a regulation had to be disallowed in
its entirety and could not be
disallowed in part. While on its face more restricted than the current
provisions, this gave rise to issues still relevant under the current
legislation. A regulation, in a set of regulations, is one of the numbered
series of provisions into which such a set is divided. The way in which the
disallowance provisions applied to other kinds of delegated legislation
depended on their form, but generally speaking a numbered item in a piece of
legislation could be disallowed. This feature of disallowance procedure was the
source of concern as a limitation on the Senate’s control over delegated
legislation (for the views of the Standing Committee
on Regulations and
Ordinances, see 80th report, PP 241/1986). On 9 October 1990 (J.307-8) Senator Harradine withdrew a motion
to disallow certain regulations relating to the Human Rights and Equal
Opportunity Commission on the ground that he was unable to disentangle those he
wished to disallow from the remainder. A notice was withdrawn by Senator Bartlett in similar
circumstances in 2000, but only after a government undertaking to amend the
regulations in question (11/10/2000, J.3375;
see also SD 11/9/2003, pp 14926-30; 9/10/2003,
pp 16008-11).
On 1 May 1986 the Senate disallowed export control orders which were
self-contained and separately numbered, but which were contained in a single
amending order. The Attorney-General’s Department and the Solicitor-General
argued that the orders had not been validly disallowed and were still in force,
on the basis that the Senate could disallow only the complete amending order.
When the matter was litigated, however, the Federal Court found that the
regulations had been disallowed (Borthwick v Kerin 1989 87 ALR 527). The Court
suggested, without deciding, that “a regulation” means “each of the serially
numbered collocations of words” in a set (at 537). (For this matter see SD,
15/6/1989, pp 4123-6.)
In light of this history, the interpretation of “provision” suggested
here is likely to be adopted in future cases.
The question has also
arisen of the interpretation of
the expression “sitting day” in section 42 of the LIA. This
question has not been adjudicated. Where two sittings of the House occur on one
day, it is considered that this should be regarded as one sitting day; there
would be two sittings, but it is not thought that there would be two sitting
days. Where a sitting commences on one day and extends for a period beyond midnight (possibly a very
short period) and a new sitting does not commence on the next day, the view
taken is that the fact of continuation beyond midnight would not
constitute an additional “sitting day”. Where one sitting
extends over two or more full days, without the intervention of an adjournment,
but by the process of suspension of the
sitting, the view taken is that, while it may be argued that there has been
only one sitting day, it should for safety be assumed that each of those days
is a sitting day.
In June 2000 the Senate disallowed some
regulations under the Customs Act which had already been deemed to be
disallowed in the House of Representatives because of the expiration of the
statutory time limit for resolving a notice of a disallowance motion given in
the House (20/6/2000, J.2813). The purpose of this seemingly unnecessary action
was to ensure that the regulations could not be remade without the consent of
the Senate (see below, under Remaking of instruments following disallowance).
Another question
which has arisen is whether it is possible for the Senate to pass a motion
disallowing instruments which have already been held to be invalid by a court. On 25 August 1983 the
Attorney-General’s Department submitted an opinion to the President that it was
not possible for the Senate to do so. The Attorney-General subsequently took a
point of order to this effect in the Senate, but no ruling was made in response
to the point of order, and the notice of motion to disallow the regulations in
question was withdrawn. A contrary opinion presented by Senate officers was
that, just as invalid instruments may be repealed, they may also be disallowed
by a House of the Parliament, either of those actions, repeal or disallowance,
having the effect of terminating the existence of the invalid instruments. For
text of opinions, see SD, 15/12/1983, pp 3858-9.
There are some forms of subordinate legislation with different approval
or disallowance procedures. Some instruments
require affirmative resolutions of both Houses to bring them into effect, while
others do not take effect until the period for disallowance has passed. The
Senate has amended bills to insert such provisions where it was thought that
particular instruments merited special control procedures (see 12/12/1989,
J.2355-61; 15/10/1992, J.2919-20; 25/11/1992, J.3115; 30/8/1995, J.3735-6;
23/8/2001, J.4732; 26/6/2002, J.477-8; 4/12/2003, J.2871; 4/3/2004, J.3085-6). One such
amendment provided that a statute was not to operate until the regulations made
under it were approved (12/12/1989, J.2358).
Disallowance motions in the Senate may be based on recommendations of
the Regulations and
Ordinances Committee, which have been,
without exception, adopted by the Senate.
Disallowance motions may be moved other than at the initiation of the
committee, and are often motivated by opposition to the policy manifested by
the delegated legislation. Disallowance may also be on the basis that the
matter should be addressed by legislation (for example, Artificial Conception
Ordinance 1986, 9/4/1986, J.875).
On 3 February 1994 (J.1190), pursuant to notice, a senator moved a motion
to disallow an instrument of delegated legislation (guidelines for eligible
child care centres), identical in terms to a motion to disallow the same
instrument which was negatived on 8 December
1993
(J.940). No point of order was taken to the effect that this was contrary to the same question
rule. (See also 29/5/1997, J.2030.) A motion may not be
moved it if is the same in substance as a motion which has been determined
during the same session, unless the latter was determined more than six months
previously (SO 86). As explained
in Chapter 9, the same question rule is seldom applied, because it seldom
occurs that a motion is exactly the same as a motion moved previously. Even if
the terms of a motion are the same as one previously determined, the motion
almost invariably has a different effect because of changed circumstances and
therefore is not the same motion. There may also be different grounds for
moving the same motion again.
This consideration arises particularly in relation to delegated
legislation. A senator may move to disallow an instrument of delegated
legislation on policy grounds, and the Regulations and Ordinances Committee may
give notice of a motion to disallow the same instrument on grounds related to
the committee’s criteria of scrutiny; the two motions are regarded as entirely
separate, and the determination of one does not affect the other. Moreover, it
could be argued that the same question rule could not prevent the operation of
the relevant statutory provisions, which provide for disallowance subject only
to the statutory time limit for giving notice. Therefore any disallowance
motion may operate (and operate automatically if not withdrawn or determined)
provided only that notice of it is given within the statutory time.
Having given a notice for a disallowance motion, a senator cannot be
compelled to move the motion before the day for which the notice is given (see
Chapter 9, Motions and Amendments, under Notice of motion).
The following are precedents for unusual proceedings involving
disallowance: disallowance motion brought on early 9/10/1986, J.1273;
disallowance notice given or deferred while instruments referred to committee
23,24,25/8/1988, J.850, 856, 885; 17/10/1988, J.1013; 11/10/1994, J.2252;
regulations requiring approval to bring legislation into operation disallowed
16/5/1990, J.92; instruments subject to approval and amendment considered
together with bill 17/12/1990, J.584, 589; disallowance motions ordered to be
taken together 13/5/1991, J.1011; 29/8/2000, J.3139-40; 27/11/2000, J.3573;
disallowance motion moved pursuant to contingent notice 17/11/1993, J.788; two
disallowance motions moved together 29/5/1997, J.2030; 1/11/2000, J.3466.
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