Chapter 15 - Delegated
legislation and disallowance
Ministerial undertakings
The Standing Committee on Regulations and Ordinances follows a practice
of giving notices of motions to disallow regulations or other subordinate
legislation within the prescribed period, and then withdrawing the notices
after correspondence with the responsible minister satisfies the committee’s
concerns.
Giving notices of motions to disallow indicates concern about the delegated
legislation in question, and these are known colloquially as protective notices
of motion, in that they protect the right of the committee, and of any senator,
to move disallowance if it is subsequently decided that this is appropriate.
Such concern is often allayed by further explanatory material from the minister
or an undertaking to amend the legislation. Where the committee’s concerns are
met, the notice of motion to disallow is withdrawn (although it may be taken
over by another senator). There are some occasions where the responsible
minister does not satisfy the committee and the motion to disallow proceeds.
Frequently a protective notice of motion is withdrawn on the basis of
undertakings from a minister to take action addressing the matters causing
concern, usually by amending the legislation in question.
The practice of ministerial undertakings has the benefit of securing an
outcome agreeable to the committee without necessarily interrupting
administration and implementation of policy by disallowance of the instruments
in question.
Undertakings, however, must be carried out promptly for this system to
work. This is a source of serious, continuing and active concern to the
committee. During a period when there was a particularly notable failure to
fulfil undertakings promptly, the committee observed:
A highly unsatisfactory situation
arises when undertakings by Ministers are not carried out promptly and
expeditiously, in that provisions recognised to be defective are allowed to
stand and the public effectively lack the protection which the disallowance
procedure and the Committee are designed to give. (62nd report,
PP 203/1978)
In its annual report for 1986-87 the committee again recorded its
apprehensions about delays in giving effect to ministerial undertakings:
The Committee is concerned that it
could undermine the whole basis of parliamentary honour on which the
undertaking convention is based, if the implementation of undertakings is not
expedited as quickly as possible after a Minister has given his or her word to
act. To countenance excessive delay is not only a discourtesy to the Senate but
it is also a continuing affront to principles of freedom, justice, fairness and
propriety if objectionable provisions are left on the delegated statute book in
spite of parliamentary requests for amendments and in contravention of
ministerial commitments to make amendments. (83rd report,
PP 377/1988)
See also a statement by the chair of the committee, SD, 6/2/1995, pp 515-9.
It is customary for the committee, in its general reports, to record
all undertakings which have been given and discharged, and those which have
been given and are still to be implemented.
Senators other than the chair of the committee also occasionally
withdraw disallowance motions on the basis of ministerial undertakings (30/11/1994, J.2627, SD,
pp 3585-9; 28/6/1995, J.3551-2, SD, pp 1932-3). Undertakings may also be accepted by the
Senate in determining whether to disallow instruments (19/10/1995, J.3972; SD, 30/11/1995, pp 4393-400).
For a precedent of ministerial undertakings given following report of a
committee on regulations, see the report of the Legal and Constitutional
Affairs Committee on the Australian Nuclear Science and Technology Organisation
Regulations, presented on 8 November 1994 (PP 222/1994), and Senate Debates of
the same date, pp 2585-91.
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