Chapter 15 - Delegated
legislation and disallowance
Remaking of instruments following disallowance
Section 48 of the LIA provides:
(1) If, under section 42, a
legislative instrument or a provision of a legislative instrument is
disallowed, or is taken to have been disallowed, a legislative instrument, or a
provision of a legislative instrument, that is the same in substance as the
first‑mentioned instrument or provision, must not be made within 6 months
after the day on which the first‑mentioned instrument or provision was
disallowed or was taken to have been disallowed, unless:
(a) if the first‑mentioned
instrument or provision was disallowed by resolution—the resolution has been
rescinded by the House of the Parliament by which it was passed; or
(b) if the first‑mentioned
instrument or provision was taken to have been disallowed—the House of the
Parliament in which notice of the motion to disallow the instrument or
provision was given by resolution approves the making of a legislative
instrument or provision the same in substance as the first‑mentioned
instrument or provision.
(2) Any legislative instrument or
provision made in contravention of this section has no effect.
For the meaning of “the same in substance” see above, under Remaking
instruments subject to tabling and disallowance.
The statute was amended in 1932 to include this provision that a
disallowed regulation was not to be remade unless the resolution of
disallowance was rescinded. Introducing the amending legislation to the Senate,
the Acting Attorney‑General (Senator McLachlan) recalled the events of the previous year relating to
the disallowance of regulations and the re‑enactment of others which were
substantially the same. Those circumstances were the subject of an address to Governor‑General
Isaacs requesting that he refuse to sanction further regulations, during the
then session, being the same in substance as those already disallowed
(28/5/1931, J.292). Although the Governor-General, in his reply (10/6/1931, J.294-5), could
not comply with the Senate’s request, the subsequent amending legislation met
the wishes of the Senate.
The standing orders
were also amended in 1932 to ensure that the general rule that the same question is
not to be again proposed during the same session should not operate to prevent
the proposal of a motion for the disallowance of an instrument substantially
the same as one previously disallowed during the same session (SO 86). But in view of
the statutory restrictions on the remaking of disallowed instruments, this
provision in the standing orders can, in practice, relate only to instruments
remade more than six months after the date of disallowance.
Motions to allow
the remaking of delegated legislation disallowed by the Senate usually arise
from the complex character of that legislation: the Senate is often not able to
disallow provisions regarded as objectionable without also striking down some
acceptable provisions. For precedents see 25/6/1992, J.2633-5; 17/10/1994, J.2298; è9/10/1996, J.668; ç 4/12/1996, J.1192. As explained in Chapter 9,
these motions are not technically rescission motions and are now not treated as
such (13/5/2004, J.3415). (See Supplement)
See under Disallowance, above, for disallowance of instruments already
disallowed or invalidated and repetition of the same disallowance motion.
For an analysis of the same question rule, see Chapter 9, Motions and
Amendments, under that heading. See also that chapter for an analysis of the
meaning of rescission, and the point that motions to permit the remaking of
delegated legislation are not technically rescission motions.
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