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Chapter 15 - Delegated
legislation and disallowance
Amendment
of disallowance motion
The following principles apply to amendment of notices of
motion for disallowance and amendment of disallowance motions after they are
moved:
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an
amendment to reduce the scope of a motion (for example, by confining it to
particular regulations or a lesser number of regulations) may be made
regardless of whether the time for giving notice has expired, because the
original notice is effective for the statutory purpose of giving notice within
the statutory time limit
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an
amendment to expand the scope of a motion (for example, by extending it to
other regulations not covered by the original motion) may not be made unless
the time for giving notice has not expired, because the original notice is not
effective for that purpose.
On 14 November 1935 (J.125) a motion of disallowance was amended by leave
to confine it to a lesser number of regulations. A point of order was taken
that the amendment was not in order in that the law required that disallowance
motions be submitted after notice had been given within a specified time, and
no notice had been given of the motion as amended. President Lynch, for the reasons
submitted, ruled the amendment not in order. This ruling was not correct and
has not since been followed. Notice had been given of a motion for the
disallowance of the whole of the regulations, and the notice extended to any of
the regulations. A court would probably have held the proposed motion for
disallowance, as amended, to be lawful, given the view of Dignan v
Australian Steamships Pty Ltd 1931 45 CLR 188,
that the provision as to notice is directory and not imperative.
Thus on 26 May 1972 (J.1016-7) a motion was moved for disallowance of the
Legal Practitioners Ordinance of the Australian Capital Territory and an amendment
proposed to limit the disallowance to sections 10 and 11. No objection was
taken to the propriety of the amendment. For further precedent, see 4/5/1987, J.1801 (amended
on Notice Paper 4/5/1987). For motions amended by leave, see 8/11/2000, J.3523; 30/11/1995, J.4310; 28/11/1996, J.1143.
For a case of a
disallowance motion amended by leave to restrict its scope, and an amendment
moved to expand its scope within the original notice, see Parliamentary
Entitlements Amendment Regulations, 20/8/2003, J.2249-50.
Although there
is at least one precedent, in 1987, for an amendment to a notice of motion for
disallowance to reduce its scope by means of a letter under standing order 77, this practice is not followed because
a senator who wishes to support the disallowance of certain regulations, for
example, may find that a notice has been amended so that it no longer covers
those regulations without the senator being aware of the amendment. This
problem potentially arises regardless of whether the time for giving notice has
expired. Therefore, when a senator wishes to amend a notice of motion to reduce
its scope, this is done by way of giving notice of intention to amend the
notice, similar to the notice of intention under standing order 78. If the time for giving notice has not
expired, another senator can then give a fresh notice to cover the particular
items the senator wishes to disallow. If the time for giving notice has
expired, another senator can take over the notice in so far as it relates to
such items (23/6/1997, J.2165). For a notice narrowed in scope
by a standing order 77 notice (after notice of intention), and an amendment
moved to further narrow it, see Notice Paper 24/3/2004
and 24/3/2004, J.3223.
An example of a notice of motion to disallow extended in scope when the
time limit for giving notice had not expired occurred on 28 April 1992 when
Senator Harradine, pursuant to standing order 77, amended an
original notice to extend its scope (Notice Papers, 28/4/1992, p. 1;
29/4/1992, p. 22).
Words may be added to a disallowance motion to give reasons for
disallowance; for precedents, see 30/4/1969, J.452; 9/11/1978, J.455.
For amendments to substitute words not having the effect of
disallowance, see 13/5/1991, J.1013; 26/10/1995, J.4057-8.
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