14. DELEGATED LEGISLATION—DISALLOWANCE AND APPROVAL
Delegated (also known as subordinate) legislation is legislation not made directly by an Act of the Parliament, but made under the authority of an Act which has delegated limited law-making powers to the Executive Government. Examples of delegated legislative authority, referred to collectively as legislative instruments, include regulations, orders, rules, determinations, principles, declarations, by-laws, notices and plans of management.
Delegated legislation must be tabled in each House of Parliament, where it can be disallowed by either House. In addition some forms of delegated legislation must be actively approved by the Parliament before coming into effect.
Disallowance
The requirements for tabling and disallowance vary and it is necessary to consult the authorising Act to be certain of the conditions operating in relation to any particular form of delegated legislation or type of instrument. If there is no requirement in the parent Act, the general requirement is that regulations must be tabled within 15 sitting days of being made. They are void and of no effect if not tabled within the specified period.
Within 15 sitting days of a regulation being tabled, any Member may give notice of a motion to disallow it. If the motion has not been withdrawn or otherwise disposed of—that is, passed or rejected—at the end of 15 sitting days after the notice was given, the regulation is deemed to have been disallowed.
In practice the tabling and disallowance periods may extend for some time, as a long adjournment or even dissolution and election could intervene between sitting days. Note also that the tabling day and the sitting days may be different in the two Houses.
Where a regulation has been disallowed or is deemed to have been disallowed, no regulation which is the same in substance may be made within six months after the date of disallowance unless the House concerned has rescinded its resolution of disallowance or approved the re-making of the regulation.
Disallowance procedures in the House
Items of delegated legislation are usually deemed papers—that is, deemed to have been tabled in the House on the day on which their receipt is recorded in the Votes and Proceedings (see Deemed papers). Occasionally a regulation, etc. may be tabled by a Minister. A motion to take note of the paper may be moved to enable debate to take place, but this is unusual.
Disallowance notices given by private Members are listed on the Notice Paper with other items of private Members business and are subject to the same procedures for debate. However, in view of the fact that disallowance will occur unless the notice is called on and dealt with within the specified time, the general practice is for standing orders to be suspended to permit them to be moved and debated during government business time. Notices appear in the Notice Paper with a note showing the number of sitting days remaining before the regulation concerned is deemed to be disallowed.
Disallowable Instruments List
Each sitting day the Table Office produces a Disallowable Instruments List. This is a listing of instruments which have been tabled and which are subject to possible disallowance, showing the number of sitting days remaining for Members to give notice of disallowance. The list is publicly available via the House of Representatives Internet site (http://www.aph.gov.au/house/).
Approval
Some Acts provide for the Houses of Parliament to approve, and possibly amend, certain legislative instruments (variously described as statements, charters, agreements, etc.). The conditions for approval and amendment depend on the provisions of the particular Act.
If one House amends such an instrument the other House is informed by message, and when the message is considered, the motion put—for example, That the House approves the form of agreement . . . as amended by the Senate and conveyed in Senate Message No. . . .. The motion can be amended to amend the amendments or make further amendments.
While notices of motions of approval, moved by Ministers, are taken as government business, motions of amendment would normally be moved by opposition Members and be subject to the usual private Members business procedures.
Footnote:
Acts Interpretation Act 1901. The provisions of the Acts Interpretation Act will be superseded by the Legislative Instruments Bill, when enacted. The bill requires legislative instruments to be tabled within six sitting days of being registered in the Register of Legislative Instruments. A provision of the bill affecting procedure in the Parliament is that a House may resolve to defer consideration of a disallowance motion for up to six months to enable an instrument to be remade or amended.
|
