Judicial Decisions Rarely Affect Health Policy Because Judges Cannot Write New Laws.

Chapter 15 Delegated legislation, scrutiny and disallowance

The power to enact laws is a primary power of Parliament. Parliament, however, frequently enacts legislation containing provisions which empower the executive government, or specified bodies or office-holders, or the judiciary, to make regulations or other forms of instruments which, provided that they are properly made, have the effect of law. This form of law is referred to as "delegated legislation", "secondary legislation", "subordinate legislation" or "legislative instruments". The last is the statutorily-established term. This is law made by the executive government, by ministers and other executive office-holders, without parliamentary enactment. This situation has the appearance of a considerable violation of the principle of the separation of powers, the principle that laws should be made by the elected representatives of the people in Parliament and not by the executive government. The principle has been largely preserved, however, by a system for the parliamentary control of executive law-making. This system, which has been built up over many years, principally by the efforts of the Senate, is founded on the ability of either House of the Parliament to disallow, that is, to veto, such laws made by executive office-holders.

This chapter is divided into the following parts:

the nature and extent of delegated legislation
arrangements implemented by the Senate for scrutiny of delegated legislation
procedures for making, tabling, disallowance and remaking of legislative instruments under the Legislation Act 2003.

The nature and extent of delegated legislation

Executive law-making

The Constitution does not explicitly authorise the Commonwealth Parliament to delegate power to make laws. However, the High Court's decision in Baxter v Ah Way (1909) 8 CLR 626 has been held to support the Parliament's power to do so. In this case O'Connor J. of the High Court rationalised the power to make regulations in the following terms:

Now the legislature would be an ineffective instrument for making laws if it only dealt with the circumstances existing at the date of the measure. The aim of all legislatures is to project their minds as far as possible into the future, and to provide in terms as general as possible for all contingencies likely to arise in the application of the law. But it is not possible to provide specifically for all cases, and, therefore, legislation from the very earliest times, and particularly in more modern times, has taken the form of conditional legislation, leaving it to some specified authority to determine the circumstances in which the law shall be applied, or to what its operation shall be extended, or the particular class of persons or goods to which it shall be applied.¹

The essential theory of delegated legislation is that while the Parliament deals directly with general principles, the executive, or other body empowered to make subordinate legislation, attends to matters of administration and detail. As the theory was expressed in 1930 by Professor K.H. Bailey: "It is for the executive in making regulations to declare what Parliament itself would have laid down had its mind been directed to the precise circumstances."²

Other justifications for the use of delegated legislation include reducing pressure on parliamentary time, and allowing legislation to be made so as to accommodate rapidly changing or uncertain situations, or cases of emergency.

Until recently, regulations were the primary form of delegated legislation. Many Acts of Parliament contain a provision allowing the Governor-General (who exercises this power on the advice of the ministry) to make regulations "required or permitted" by the statute to be made or "necessary or convenient to be prescribed for carrying out or giving effect" to the statute. Many statutes also refer to specific matters to be prescribed by regulation. Other instruments are made by a variety of executive and administrative authorities, including ministers, heads of departments and agencies, and their delegates.

From 2013, following the consolidation of responsibility for drafting of primary and secondary legislation within one government agency, the insertion of a general instrument making power in primary legislation began to emerge as an alternative to the general regulation-making power contained in many Acts.³ The consequences of this are discussed below.

The making of instruments is governed by statutory provisions contained in the Legislation Act 2003.⁴ The main provisions are that legislative instruments must be registered in the Federal Register of Legislation (FRL) and laid before each House of the Parliament within 6 sitting days, and are then subject to disallowance by either House.

Some instruments are subject to special provisions which vary from those of the Legislation Act, for example, as to the period for tabling or disallowance. Some are subject to affirmation by both Houses. Special control provisions of this kind have occasionally been included in statutes by amendments moved in the Senate. There are also some instruments which are not subject to tabling and disallowance, either because they are not legislative in character (that is, not in the nature of laws) or because they are statutorily exempted from the tabling and disallowance process, by the Legislation Act or another statute.⁵

The Legislation Act largely replicates the provisions for parliamentary control of delegated legislation formerly contained in the Acts Interpretation Act 1901.

Types and volume of delegated legislation

The types of legislative instruments are extremely diverse. In 1970 there were only three different kinds; by the 1990s this had increased to over 100. They include:

regulations
determinations
ordinances of territories
plans of management, for example, for fisheries
approvals of service providers
by-laws of statutory authorities
navigation and aviation orders
notices, such as broadcasting service notices
standards, such as accounting standards
declarations, such as health legislation declarations
directives, such as airworthiness directives
guidelines and principles, such as aged care principles and child care guidelines.

Despite the diversity of instruments, greater standardisation has been achieved through centralisation of management under the Legislation Act.

The volume of instruments is considerable, having increased particularly throughout the latter decades of the 20th Century and now consistently averaging between 1500 and 2000 instruments a year.⁶ The table below sets down details of the numbers in recent years:

Year	Disallowable Instruments	Year	Disallowable Instruments
1985–1986	855	2003–2004	1561
1986–1987	832	2004–2005	2432
1987–1988	1035	2005–2006	2449
1988–1989	1352	2006–2007	2349
1989–1990	1258	2007–2008	2982
1990–1991	1645	2008–2009	3004
1991–1992	1562	2009–2010	2468
1992–1993	1652	2010–2011	1809
1993–1994	1803	2011–2012	1850
1994–1995	2087	2012–2013	1986
1995–1996	1900	2013–2014	1614
1996–1997	1791	2014–2015	1656
1997–1998	1888	[update: 2015 — 2016	1975]
1998–1999	1672	[update: 2016 — 2017	1482]
1999–2000	1655	[update: 2017 — 2018	1581]
2000–2001	1859	[update: 2018 — 2019	1127]
2001–2002	1546	[update: 2019 — 2020	1312]
2002–2003	1661	[update: 2020 — 2021	1536]

Generally speaking, about half of the law of the Commonwealth by volume consists of delegated legislation rather than acts of Parliament.

Scrutiny of delegated legislation

Parliamentary control: historical background

As has been noted, a system has been built up, principally through the efforts of the Senate, whereby delegated legislation is subject to parliamentary control, mainly through the power of either House of the Parliament to disallow any delegated legislation. This gives the Senate basically the same power it has in relation to other proposed laws: the power of veto. It was through recognition by the Senate of the need to preserve the principle of parliamentary control of law-making that this system was established.

At an early stage in its history the Parliament recognised the need for direct parliamentary control over subordinate legislation. In enacting customs and excise legislation, for example, provision was made, in the face of ministerial resistance, for tabling of regulations and their disallowance by either House within a prescribed period. The Acts Interpretation Act 1904 included the basic framework for handling subordinate legislation, namely notification in the Gazette and laying before each House within 30 sitting days (reduced to 15 in 1930 and 6 in 2003). A vital component of that framework, inserted by amendment in the Senate but based on provisions in other legislation, was the capacity to move, within 15 sitting days of tabling, that regulations be disallowed. This was further amended in the House of Representatives so that only notice of motion was required within 15 sitting days.

At this stage, however, there was no provision in either House (or any other parliament) for active scrutiny. It was in the 1920s and 30s that public and parliamentary concern led to the establishment of parliamentary procedures to ensure that exercise of regulation-making power became an active subject of scrutiny and liable to a measure of control.

Credit for rousing public opinion is often accorded to Lord Hewart, Lord Chief Justice of England, in his book, The New Despotism, published in 1929. The book represents "the outstanding landmark in the development of the theory and practice of delegated legislation".⁷

By coincidence Hewart's book was published at the time when the Senate had established a select committee to consider, report and make recommendations about establishing standing committees of the Senate on "statutory rules and ordinances". When the select committee reported, it proposed a committee to review "Regulations and Ordinances".

Simultaneously, the Senate, in which senators supporting the government were in a minority, was challenging regulations made by the Scullin Government under the Transport Workers Act 1928, using powers contained in the Acts Interpretation Act. When the initial regulations were disallowed, the regulations were promptly remade. This led the Senate unsuccessfully to petition the Governor-General to refuse to approve further regulations which were the same in substance as regulations already disallowed by the Senate. There was also litigation in the High Court challenging the validity of the regulations.⁸

With this controversy in the background, the Senate, following the general election of 1931, resolved to incorporate in the standing orders a requirement that a Standing Committee on Regulations and Ordinances be appointed at the commencement of each session of Parliament.⁹ Only the House of Lords, when it created a committee in 1925 to examine regulations requiring an affirmative resolution to become law, had previously acted in this field. Eventually many houses of parliaments followed a similar course of establishing a committee to oversee statutory instruments, but one which has not done so is the Australian House of Representatives. Thus responsibility in the Commonwealth for active and systematic scrutiny of this extensive field of legislation falls upon the Senate. Maurice Blackburn, later a Labor member of the House of Representatives, had explicitly contended in 1930 that:

the House of Representatives is not likely to do that work well, or, in fact, to do it at all. Upon its vote turns the fate of the ministry. The regulation is made by the ministry, and a proposal for its disallowance would certainly be treated as a vote of want of confidence, and would be tested on party lines. No ministry depends on the vote of the Senate and it is quite likely that in that chamber a regulation would be considered on its merits.... ¹⁰

Parliamentary scrutiny of subordinate legislation was further strengthened in 1932 by amendment of the Acts Interpretation Act designed to address the issues which had arisen during dispute over the Transport Workers regulations. The amendment prohibited remaking of disallowed regulations within six months of disallowance, or the making of new regulations "substantially similar", unless their introduction was preceded by a motion rescinding the earlier disallowance.

Five years later the Act was consolidated. An important addition, included following observations by Maurice Blackburn in the House of Representatives about the ease with which a motion to disallow could be by-passed, was a provision compelling action on a motion for disallowance: if a motion to disallow was not resolved, the regulations would be deemed to have been disallowed.

In 2005 the Legislative Instruments Act 2003 came into effect. This legislation, which had been introduced, scrutinised by the Regulations and Ordinances Committee and amended by the Senate in various forms on a number of occasions between 1994 and 1998, consolidated and reformed the law relating to delegated legislation in accordance with recommendations made by the Administrative Review Council in 1992.¹¹ It retained and enhanced the provisions for parliamentary control.

In 2016, the Legislative Instruments Act was renamed the Legislation Act 2003 and provisions were added for the publication and management of Commonwealth Acts and instruments. Provisions for parliamentary control of delegated legislation remained unchanged.

Regulations and Ordinances Committee [update: /Scrutiny of Delegated Legislation Committee]

All disallowable legislative instruments stand referred to the Standing Committee on Regulations and Ordinances for scrutiny and recommendation as to any further parliamentary action including disallowance. The oldest standing committee, apart from the domestic or internal committees, the Regulations and Ordinances Committee undertakes the important function on behalf of the Senate of scrutinising delegated legislation to ensure that it complies with principles of personal freedom and parliamentary propriety. [update: In November 2019 the committee was renamed the Committee for the Scrutiny of Delegated Legislation, following an inquiry into its role and functions, to reflect the expansion of its remit over the years: 27/11/2019, J.933-5.]

The committee is appointed at the commencement of each Parliament under standing order 23(1). The membership of the committee is set at six, with three members nominated by the Leader of the Government in the Senate and three nominated by the Leader of the Opposition in the Senate or by minority groups or independent senators. The quorum of the committee is provided by standing order 29. The chair of the committee is elected from the members nominated by the Leader of the Government. The chair is empowered by standing order 23(7) to appoint a deputy chair to act as chair when there is no chair or the chair is not present at a meeting. By convention, the deputy chair is a non-government senator, reinforcing the high degree of non-partisanship under which the committee operates. The chair, or deputy chair when acting as chair, has a casting vote but this has been a matter of little significance in the history of the committee.

~~The committee has power to send for persons and documents and to sit during recess but does not have power to move from place to place. It usually meets in private.¹²~~

~~Standing order 23(2) provides:~~

All regulations, ordinances and other instruments made under the authority of Acts of the Parliament, which are subject to disallowance or disapproval by the Senate and which are of a legislative character, shall stand referred to the Committee for consideration and, if necessary, report.

[update: The committee is appointed at the commencement of each Parliament under standing order 23(1). It has six members, with three nominated by the Leader of the Government in the Senate and three nominated by the Leader of the Opposition in the Senate or by minor parties or independent senators. The quorum of the committee is provided by standing order 29. The chair of the committee is elected from the members nominated by the Leader of the Government, and the deputy chair from members nominated by the Leader of the Opposition. (Until 2019 the chair was empowered to appoint a deputy who was, by convention, a non-government senator, reinforcing the non-partisan nature of the committee's proceedings.) The deputy acts as chair when there is no chair or the chair is not present at a meeting.

The committee these days has the usual range of inquiry powers, including the power to send for persons and documents and to sit during recess, but until 2019 it did not have power to move from place to place. It usually meets in private.¹²

Standing order 23(2) provides:

All instruments made under the authority of Acts of the Parliament, which are subject to disallowance, disapproval or affirmative resolution by the Senate and which are of a legislative character, shall stand referred to the committee for consideration and, if necessary, report.

Development of the committee's principles and approach

The amendments made to standing order 23 in November 2019 modernised aspects of the committee's procedure and promoted consistency with other Senate standing committees and scrutiny committees in other jurisdictions. The changes to the committee's terms of reference in standing order 23(3) were principally changes of form, rather than substance, clarifying the standing order to reflect long-standing committee practice.]

The committee scrutinises each instrument to ensure:

that it is in accordance with the statute;
that it does not trespass unduly on personal rights and liberties;
that it does not unduly make the rights and liberties of citizens dependent upon administrative decisions which are not subject to review of their merits by a judicial or other independent tribunal; and
that it does not contain matter more appropriate for parliamentary enactment.¹³

These terms of reference have governed the committee's proceedings throughout its history with only minor amendment in 1979 largely occasioned by creation of the Administrative Appeals Tribunal. The four principles are interpreted broadly to include every possible deficiency in delegated legislation affecting parliamentary propriety and personal rights. On this broad approach the committee has interpreted:

scrutiny principle (a) as encompassing all aspects of legal conformity, including under the Constitution, the authorising Act and any other applicable legislation (such as the Acts Interpretation Act 1901 and Legislation Act 2003);
scrutiny principle (b) as encompassing all constitutional, common law and statutorily based rights, including those relating to criminal process rights, penalties, retrospectivity and personal privacy;
scrutiny principle (c) as encompassing the full range of natural justice and due process considerations around administrative decision making, including objective decision making criteria; the giving of reasons for decisions; rights of judicial and merits review; and appeal decisions;
scrutiny principle (d) as encompassing all circumstances in which the use of delegated rather than primary legislation may be regarded as improperly circumventing the full legislative process, including instruments anticipating matters contained in bills and broad exemptions operating as de facto amendments to primary legislation.

In its fourth report in 1938 the committee recorded that it had determined in 1933 that "questions involving government policy in regulations and ordinances fell outside its scope".¹⁴ The committee does not consider policy issues arising in delegated legislation, but does not refrain from finding provisions contrary to its principles and recommending their disallowance simply on the basis that they reflect government policy.

The committee may recommend the disallowance by the Senate of any delegated legislation not in accordance with the committee's principles. The Senate has never rejected a committee recommendation that an offending instrument should be disallowed. Because its scrutiny is confined to its criteria, the committee avoids debates on the merits of policy. This, together with its endurance, ensures that it maintains a high reputation in supporting the Senate's legislative review function.

The committee reports regularly to the Senate and makes general reports on its scrutiny of delegated legislation.¹⁵ In respect of many instruments these reports record that the instruments have been changed when the committee has pointed out defects in them. The chair of the committee may also make statements on its behalf in the Senate recording action taken by the committee in relation to particular instruments. The committee's correspondence with ministers and other rule-making authorities is generally included in its reports.

In its 101st report, in June 1995, the committee asserted its right, and that of the Senate, to scrutinise rules of court and other instruments made by judicial bodies.¹⁶ These instruments, like other forms of delegated legislation, are subject to disallowance by the Senate.¹⁷

Occasionally the Senate refers to the committee for special report particular matters relating to delegated legislation. Thus in 1994 and subsequently the committee considered and reported in detail on the Legislative Instruments Bill, which significantly affected the system for the making of delegated legislation.¹⁸

At the request of the Standing Committee on Appropriations, Staffing and Security in 2014 the committee began to monitor and report on instruments made under legislation passed in response to the High Court's decision in the first Williams case.¹⁹ By such instruments, programs are added to a schedule in the Financial Framework (Supplementary Powers) Regulations 1997 to establish legislative authority for certain expenditure. The committee assesses such programs in relation to the characterisation of appropriations in section 53 of the Constitution and also to ensure that the explanatory statements accompanying the instruments contain sufficient explanation of the constitutional authority for expenditure on each new program. This work is carried out by the committee pursuant to scrutiny principle (a) (above).

In carrying out its role, the committee is assisted by a legal adviser appointed, with the approval of the President, pursuant to standing order 23(9). The legal adviser assists the committee to identify instruments which may offend against the committee's principles. When such an instrument is identified, the usual practice is for the chair to give notice of a motion to disallow the instrument. In accordance with the Legislation Act, notices of motion for disallowance must be given within 15 sitting days after the instrument has been tabled and the Senate has a further 15 sitting days in which to deal with the notice; if the motion is not by then disposed of, the instrument is automatically disallowed. Many notices to disallow instruments are protective notices in that they are given to protect the ability of the Senate to disallow an instrument, pending the receipt of a satisfactory explanation or undertaking from the relevant minister. Once such an explanation or undertaking is received, the chair withdraws the notice of motion, having previously notified an intention to do so. It is then open to any senator to take over the notice, in accordance with standing order 78, and therefore to pursue any other issues involved in the instrument. This process is illustrated in Figure 1 showing the scrutiny of delegated legislation. [update: For examples of the committee chair giving, and later withdrawing, protective disallowance notices to extend the time for senators to consider instruments initially misclassified as not subject to disallowance, see 27/3/2018, J.2947; Delegated legislation monitors 15 and 16 of 2017.]

As well as scrutinising many thousands of instruments and contributing to the evaluation and refinement of executive law-making, the committee has had an important role in strengthening the procedures governing the making and scrutiny of delegated legislation and has had an influence on most major legislative developments affecting the relevant parts of the Acts Interpretation Act 1901, the Legislative Instruments Act 2003 and the Legislation Act 2003. The committee, supported by the statutory provisions for disallowance, has established an effective system for the parliamentary scrutiny and control of delegated legislation. This system has since been widely copied in other jurisdictions in Australia and around the world.²⁰

In assessing the committee's achievements over half a century, Professor Gordon Reid observed that it had "established itself as bipartisan in all of its work" and had "maintained its working momentum, whichever political party has been in power". Reid further observed that the committee's record demonstrated that, so far as ministerial responsibility is concerned, ministers have been "held primarily responsible to the Senate and only incidentally to the House of Representatives in their use of delegated legislation".²¹

[update: In 2018 the Senate initiated a review by the committee of its effectiveness, role and future direction, as well as the adequacy of the existing framework for parliamentary control of delegated legislation. This was ~~intended to be~~ similar to ~~the~~ a review undertaken by the Scrutiny of Bills Committee in 2012, which led to a number of changes to that committee's operations. The report was tabled in June 2019~~, and it is expected that its recommendations will be considered early in the 46th Parliament~~ and a range of procedural changes were adopted in November 2019: 27/11/2019, J.933–5. The changes modernised the language in the committee's terms of reference and clarified its procedures.

Among the changes was the insertion of two "catch-all" provisions. The first empowered the committee to consider whether instruments comply with "any other ground relating to the technical scrutiny of delegated legislation that the committee considers appropriate" (SO 23(3)(k)), while the second enabled the committee to report on an instrument "on the ground that it raises significant issues" or is otherwise likely to be of interest to the Senate (SO 23(4)). The committee now maintains a list of these matters of interest to the Senate on its web pages.

The committee was also given the power to initiate inquiries into "any matter related to the technical scrutiny of delegated legislation" (SO 23(12)). In April 2020 the committee used this power to initiate an inquiry into the exemption of instruments from disallowance and subsequently recommended a range of measures to restrain and rationalise the practice: Final report, Exemption of delegated legislation from parliamentary oversight, March 2021. Some of the committee's recommendations were subsequently adopted by the Senate: 16/6/2021, J.3581-2.

In February 2021, the Senate also adopted a resolution encouraging ministers and agencies to engage with the committee in a timely manner and calling on shadow ministers to "actively consider" its comments: 23/2/2021, J.3148-9.]

Figure 1: Scrutiny of Delegated Legislation

Ministerial undertakings

The practices of the Standing Committee on Regulations and Ordinances are described in the preceding section.

Giving notices of motions to disallow specific instruments 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.²²

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.²³

It is customary for the committee, in its delegated legislation monitors or in tabled correspondence, 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.²⁴ Undertakings may also be accepted by the Senate in determining whether to disallow instruments.²⁵

Ministerial undertakings given following the report of a committee on regulations were the subject of debate on 8 November 1994.²⁶

Making, tabling, disallowance and remaking of delegated legislation

Making of delegated legislation

The procedures for making delegated legislation are markedly different from those used in enactment of a statute. There are no stages for legislative passage or opportunity for amendment, and there are no procedural restraints upon rushed legislation.

The Legislation Act:

defines a legislative instrument as an instrument that is of legislative character, and that is made in the exercise of a power delegated by the Parliament (s. 8)
establishes the Federal Register of Legislation, an authoritative source for all Commonwealth Acts and delegated legislation accessible in, and maintained in, electronic form (ss. 15A-15E)
requires that (unless specifically exempted) all legislative instruments be registered (s. 15H), and provides that no legislative instrument will be enforceable unless it is registered (s. 15K)
requires the provision of an explanatory statement to accompany each instrument (s. 15J)
encourages rule-makers to undertake appropriate consultation, and to report on that consultation in the explanatory statement (ss. 15J, 17).

There is a prohibition on retrospectivity of delegated legislation where the rights of a person are affected to the disadvantage of that person, or where liabilities are imposed on a person. These limits do not, however, apply to the rights of the Commonwealth or a Commonwealth authority.²⁷

Tabling

Section 38 of the Legislation Act provides that copies of all legislative instruments be laid before each House of the Parliament within 6 sitting days of that House after registration. Instruments not laid before each House within the prescribed period after registration cease to have effect.²⁸

This system to enforce tabling, which was similar under the earlier legislation, may not be totally fool-proof. In 1990 it was discovered that disallowable rules under the Aboriginal and Torres Strait Islander Commission Act for election of regional councils and special rules for election and composition of the Torres Strait Islands regional council had not been tabled as required. The Act required that elections be held under rules in force at the time when elections were called. As it happened, when the elections were called the time for tabling had not expired. Thus, as the Federal Court found, the elections themselves were valid.²⁹

Normally instruments required to be tabled are forwarded by the Office of Parliamentary Counsel or the responsible department to the Clerk of the Senate, and are tabled by the Clerk at the commencement of proceedings each sitting day.

On occasions failure by departments to forward instruments for tabling has caused considerable legal difficulties. Such a situation was revealed by a statement by the Minister for Industry, Science and Technology in 1995.³⁰ The instruments in question had to be validated retrospectively by amendments to the Export Market Development Grants Amendment Bill 1994 and by the Industry Research and Development Amendment Bill 1995, and in each case the Senate made amendments to preserve the rights of persons affected by adverse decisions under the invalid instruments to seek redress by litigation. There have been other significant failures by government departments to forward delegated legislation for tabling within the statutory time limit, resulting in that legislation ceasing to have effect, with serious consequences.³¹

It is not essential, however, that regulations be provided for tabling by a minister, or any other member of the government. Once an instrument has come into effect, it is open to any senator to seek to table it. On 26 March 1931, Transport Workers (Waterside) Regulations were tabled by the Leader of the Opposition in the Senate, Senator Pearce, in conformity with an order of the Senate.³² Senator Pearce had quoted the gazetted regulations earlier in the day during a speech on a motion for adjournment to debate a matter of urgency; in tabling the regulations he was responding to a motion under then standing order 364 (now 168(2)) that they be laid on the table. The regulations were subsequently disallowed.

Private senators have tabled regulations on other occasions. On 14 December 1989, Senator Patterson tabled regulations made under the National Health (Pharmaceutical Benefits) Act; these were disallowed on 22 December 1989.³³ On 2 June 1994 Senator Bell tabled regulations under the Education Services for Overseas Students (Registration of Providers and Financial Regulation) Act.³⁴

On 24 June 2009, an Opposition senator by leave tabled ministerial directions under the Building and Construction Industry Improvement Act 2005, and then gave notice of a motion to disallow the directions, which were subsequently disallowed.³⁵

On 10 July 2014, standing order 168(2) was again used to require the tabling by an Opposition senator of the Corporations Amendment (Streamlining Future of Financial Advice) Regulation 2014 when it appeared that the responsible minister may delay tabling.³⁶ Notice was then given to disallow the regulations which were subsequently disallowed.³⁷

Consultation

Chapter 3 of the Legislation Act provides for rule-makers to consult with interested parties before making instruments. Section 19, however, provides that failure to consult does not affect the validity of an instrument. It likewise does not affect parliamentary control, although it may be an issue in parliamentary scrutiny.

Remaking instruments subject to tabling and disallowance

Once a legislative instrument has been made, no instrument the same in substance may be made within a defined period unless approved by both Houses by resolution. The defined period ends seven days after the original instrument has been laid before both Houses, or the later of the two days when the instrument is tabled on different days in the Houses; or after the last day on which the instrument could have been so tabled.³⁸

Similarly, where notice of a motion to disallow a legislative instrument has been given in either House within 15 sitting days of the instrument being laid before that House, another instrument the same in substance may not be made unless the notice has been withdrawn; the instrument is deemed to have been disallowed under section 42(2); the motion has been withdrawn or otherwise disposed of; or section 42(3) has applied in relation to the instrument (see below). Similar restrictions also apply to instruments if they are deemed to have been tabled again following a dissolution, expiration or prorogation of the House of Representatives.³⁹

These provisions were inserted in the statute in 1988 after the Regulations and Ordinances Committee pointed out that the disallowance provisions could be defeated by a succession of instruments repealing and remaking their predecessors.⁴⁰

The expression "the same in substance" has been judicially construed to refer to "any regulation which is substantially the same …. in the sense that it produces substantially, that is, in large measure, though not in all details, the same effect".⁴¹ In 2015, a single Federal Court judge gave the term a narrower construction, requiring that for an instrument to be invalid, "it be in substance or legal effect, identical to the previously disallowed measure".⁴²

See also Remaking of instruments following disallowance, below.

Disallowance

Section 42(1) of the Legislation Act provides:

If:

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
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.⁴³ 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.⁴⁴

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.⁴⁵

On 5 March 1992 Senator Parer gave notice of motion to disallow all regulations made under the Political Broadcasts and Political Disclosures Act 1991.⁴⁶ 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.⁴⁷ 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.⁴⁸ On 9 October 1990 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.⁴⁹ A notice was withdrawn by Senator Bartlett in similar circumstances in 2000, but only after a government undertaking to amend the regulations in question.⁵⁰

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.⁵¹ The Court suggested, without deciding, that "a regulation" means "each of the serially numbered collocations of words" in a set.⁵²

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 Legislation Act. 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.⁵³

[update: This uncertainty was resolved when the Acts Interpretation Act 1901 was amended in 2018 to insert a common-sense definition of sitting day, which provides that a new sitting day is not created in those circumstances: see s. 2M.]

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.⁵⁴ The purpose of this seemingly unnecessary action was to ensure that the regulations could not be remade without the consent of the Senate.⁵⁵

On the same principle, the Senate disallowed the Legal Services Amendment (Solicitor-General Opinions) Direction 2016, notwithstanding its repeal before the motion was called on for debate.⁵⁶ [update: Similarly, after its repeal, a notice to disallow the Extradition (People's Republic of China) Regulations 2017 was postponed to the last day of the disallowance period, rather than withdrawn. The Senate adjourned with the motion unresolved, having not been reached in debate: 20/6/2017, J.1505. Section 42(2) of the Legislation Act provides that instruments are taken to be disallowed if they are not determined in the prescribed time (see footnote 45, above, for precedents). The presumed effect in this case was to prevent regulations "the same in substance" as the repealed regulations being made within 6 months without the Senate's consent.]

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.⁵⁷

Changes to the statutory framework in 2012 raised the possibility of the Senate disallowing instruments that had technically been repealed. The Legislative Instruments Amendment (Sunsetting Measures) Act 2012 inserted a new Part 3 of Chapter 3 of the Legislation Act, Repeal of spent legislative instruments, notifiable instruments and provisions. These provisions provide, in effect, for the automatic repeal of amending or repealing instruments once they have achieved their effect. This occurs on the day after the last of the provisions commences, or the registration of the instrument, whichever is the later. This creates the possibility that an instrument may have been repealed before it is even tabled but the tabling requirements and disallowance powers of the Houses are not affected.⁵⁸ Since the enactment of the provisions, the Senate has disallowed several repealed instruments but in each case the effect was that the provisions inserted in the principal instrument were disallowed.⁵⁹

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. Some involve a combination of both methods.⁶⁰ The Senate has amended bills to insert such provisions where it was thought that particular instruments merited special control procedures.⁶¹ One such amendment provided that a statute was not to operate until the regulations made under it were approved.⁶²

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. That committee's practice has also been followed by the Parliamentary Joint Committee on Human Rights which has used the disallowance process to highlight its concerns with particular instruments.⁶³

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.⁶⁴

On 3 February 1994, 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 1993.⁶⁵ No point of order was taken to the effect that this was contrary to the same question rule.⁶⁶ 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.⁶⁷ 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.⁶⁸

Unusual proceedings involving disallowance include:

disallowance motion brought on early⁶⁹
disallowance notice given or deferred while instruments referred to committee⁷⁰
disallowance motion subjected to time limit to ensure definite outcome⁷¹
question on disallowance motion deferred to another day because of SO 57(3)⁷²
regulations requiring approval to bring legislation into operation disallowed⁷³
instruments subject to approval and amendment considered together with bill⁷⁴
disallowance motions ordered to be taken together⁷⁵
disallowance motion moved pursuant to contingent notice⁷⁶
two or more disallowance motions moved together⁷⁷
disallowance motion for multiple instruments.⁷⁸
[update: disallowance motion put again and passed on a subsequent sitting day, pursuant to suspension of standing orders: 13/6/2017, J.1374-5
proposal to postpone disallowance motion rejected: 17/10/2017, J.2083-4; 9/5/2018, J.3066
disallowance motion postponed on another senator's motion: 12/2/2018, J.2666; 14/2/2018, J.2715
postponed disallowance motion brought on pursuant to suspension of standing orders: 27/3/2018, J.2948, J.2961-4]

Disallowance motion without notice

While the statutory provisions refer to notice being given of a motion for disallowance, the Senate may disallow tabled regulations without notice if standing orders are suspended to do so. When the matter came before the High Court in the case concerning the Transport Workers Regulations, Rich J. held that the statutory provisions as to notice are directory, not imperative.⁷⁹

The Senate may also suspend standing orders to enable a notice of motion of disallowance, having effect for that day, to be given and the motion then moved. This occurred on 20 June 1967 when a special meeting of the Senate was held, at the request of an absolute majority of senators, in order to have the opportunity to move for disallowance of certain postal and telephone regulations.⁸⁰ After some formal business, the Leader of the Opposition, Senator L.K. Murphy, moved:

That so much of the Standing Orders be suspended as would prevent a Notice of Motion from being now given by Senator Murphy, and having effect for this day, for the disallowance of the Regulations contained in Statutory Rules 1967, Nos. 74, 75, 76 and 77, and made under the Post and Telegraph Act 1901-1966.

The motion being agreed to, Senator Murphy then gave notice of motion for the disallowance of the regulations. Then he moved, pursuant to that notice, that the regulations be disallowed, which motion was agreed to.⁸¹

Given that notice is not necessary, this elaborate procedure need not be followed and a motion may be moved by leave.⁸²

Tabling as a condition of disallowance

A legislative instrument not laid before each House within 6 sitting days after registration ceases to have effect.⁸³ The question arises whether it is necessary for a regulation to be tabled before disallowance is initiated.

In Dignan v Australian Steamships Pty Ltd (1931) 45 CLR 188, the High Court by a majority (Rich, Starke and Dixon JJ. — Gavan Duffy, C.J. and Evatt J. dissenting) held that the disallowance by the Senate of certain Transport Workers (Waterside) Regulations on 26 March 1931,⁸⁴ after they had been tabled (as noted earlier) by the Leader of the Opposition in the Senate (Senator Pearce) rather than a minister, was an effective disallowance.

In 1942, Senator Spicer, the then Chairman of the Senate Regulations and Ordinances Committee, prepared a memorandum on the subject with the aim of determining the practice which should be followed by the Senate. His memorandum concluded:

An analysis of the judgments in this case (ie. Dignan's case) discloses, therefore, that only two of the five Judges committed themselves to the view that the regulations need not be laid before the House before disallowance, but a majority of the Court, including the two Judges referred to, held that the regulations had been effectively laid before the House, by reason of the motion under S.O. 364.

In these circumstances the question whether disallowance will be effective in a case in which a regulation has not been laid before the House at all is still an open one as far as the High Court is concerned. Any doubt on the matter can be avoided if motions for disallowance are not moved before regulations are laid before the House either by a member of the Executive or by order of the Senate, and this would seem to be ample justification for continuing to follow that procedure.

Although Dignan's case was decided under section 10 of the Acts Interpretation Act 1904-1930, which has since been repealed by the Act of 1937 (No. 10), the new section, 48, which has been inserted in its stead is for this purpose not materially different from the section with which the High Court had to deal. It seems to me that the views I have expressed above are as applicable to the new section as to the section which was under consideration in Dignan's case.

In support of his contention that notice of disallowance should be given subsequent to the tabling of the regulations and within fifteen sitting days of such tabling, Senator Spicer instanced the speeches of ministers, the submissions of counsel for the government, and the judgment of at least one High Court Judge (Dr H.V. Evatt). "With this backing", he submitted, "there is learned and authoritative justification for the view that to require notice of disallowance to be delayed until after the regulations are tabled is giving effect to the proper intention of the provision in the Acts Interpretation Act."

This analysis applies equally to the provisions of the Legislation Act.

In 1988 Senator Puplick gave notice of a motion to disallow regulations before they were tabled.⁸⁵ The notice was withdrawn on 25 August 1988 but revived four days later when the regulations were eventually tabled.⁸⁶

In 2002 a disallowance motion was moved by leave immediately after a minister, in response to a resolution of the Senate, tabled the regulations in question. Notice of a motion to disallow the same regulations, given before the regulations were tabled, was withdrawn.⁸⁷ Changes to the routine of business in 2015 provide for disallowable instruments to be tabled before the giving of notices on any day.

Precedence of disallowance motion

A motion to disallow or disapprove any regulation or other instrument subject to disallowance or disapproval by either House is placed on the Notice Paper as Business of the Senate. As such, it takes precedence over Government and General Business for the day on which it is set down for consideration.⁸⁸

This procedure further strengthens the Senate in exercising the power of disallowance, and ensures that disallowance motions are given appropriate attention.

The Notice Paper indicates the number of sitting days remaining within which a motion for disallowance must be disposed of before the instrument will be deemed to have been disallowed.

Consideration in committee of the whole

There is a precedent for the consideration of the disallowance of regulations in committee of the whole.⁸⁹ The circumstances were that a motion was moved for the disallowance of a series of regulations under the Defence Act, and it was considered that the advantages of the committee procedure of debate, where senators can speak more than once to a question, were more suited to the nature of the motion. In addition, each regulation could be considered seriatim. To be effective, any resolution of the committee of the whole would have to be adopted by the Senate, on report.

Amendment and withdrawal of disallowance motion

The following principles apply to amendment of notices of motion for disallowance and amendment of disallowance motions after they are moved:

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
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 a motion of disallowance was amended by leave to confine it to a lesser number of regulations.⁹⁰ 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 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 11.⁹¹ No objection was taken to the propriety of the amendment.⁹²

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.⁹³

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.⁹⁴

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.⁹⁵

On 24 June 2015, Senator Wright gave notice of her intention to withdraw a notice for disallowance of a full regulation, at the same time giving a fresh notice to disallow a part of it, as she was still within the time limit.⁹⁶

Words may be added to a disallowance motion to give reasons for disallowance.⁹⁷

If a senator, having given notice of a motion for disallowance, seeks to withdraw the notice, provision is made for another senator to take over the motion, thus averting the possibility that the Senate could be denied an opportunity of considering disallowance where the time for giving notice has passed. Standing order 78 provides:

A senator who wishes to withdraw a notice of motion standing in the senator's name to disallow, disapprove, or declare void and of no effect any instrument made under the authority of any Act which provides for the instrument to be subject to disallowance or disapproval by either House of the Parliament, or subject to a resolution of either House of the Parliament declaring the instrument to be void and of no effect, shall give notice to the Senate of the intention to withdraw the notice of motion.
Such notice of intention shall be given in the same manner as a notice of motion, shall indicate the stage in the routine of business of the Senate at which it is intended to withdraw the notice of motion, and shall not have effect for the day on which it is given; except that, if given on a day on which by force of the statute the instrument shall be deemed to be disallowed if the motion has not been withdrawn or otherwise resolved, or on a day on which by force of the statute the motion must be passed in order to be effective, such notice of intention may have effect for a later hour of that day.
If another senator, at any time after the giving of such notice of intention and before the withdrawal of the notice of motion, indicates to the Senate an objection to the withdrawal of the notice of motion, that senator's name shall be put on the notice of motion, the name of the senator who wishes to withdraw the notice of motion shall be removed from it, and it shall not be withdrawn; but if no senator so objects to the withdrawal of the notice of motion, it may be withdrawn in accordance with such notice of intention.

These provisions ensure that the right of any senator to move disallowance is not lost by the withdrawal of a notice.

Senators have taken over disallowance motions from the Regulations and Ordinances Committee on numerous occasions.⁹⁸ Disallowance motions have also been taken over from another senator.⁹⁹

[update: As provided by standing order 78(2), a notice of intention to withdraw may have effect later in the day, if given on the last day for resolving a disallowance motion. For a motion taken over by another senator in such circumstances, see 14/6/2017, J.1403.]

Where a senator wishes to withdraw a notice of motion for disallowance on the last day for resolving the notice and there is not time for notice of intention to withdraw to be given, the notice may be withdrawn by leave, but only after senators present have an opportunity to take over the notice.¹⁰⁰

A disallowance motion may be brought on early by leave and then withdrawn pursuant to notice of intention.¹⁰¹

A notice of intention to withdraw a disallowance motion has the effect of postponing a notice which would otherwise be called on earlier to the time of intended withdrawal, unless another senator takes over the notice before that time, in which case it is called on at its due time.¹⁰²

A notice of motion for disallowance which was not regarded as effective because it was given before the regulations concerned were tabled was withdrawn without notice or leave.¹⁰³

An unusual resolution was passed on 30 June 1994 on the motion of the chair of the Regulations and Ordinances Committee to allow the committee to withdraw from the Notice Paper a notice of motion for the disallowance of certain Industrial Relations Court Rules during the winter long adjournment of the Senate.¹⁰⁴ It was explained that, if the committee received a satisfactory undertaking from the Industrial Relations Court concerning the making of substitute rules, the withdrawal of the notice of motion would allow the Court to make substitute rules without waiting for the next meeting of the Senate and without running the risk of the new rules being held to be invalid under the predecessor of section 47 of the Legislation Act. As explained above, this provision prohibits the making of delegated legislation the same in substance as legislation which is the subject of an unresolved disallowance motion. At that time, the High Court had taken a broad view of the meaning of "the same in substance", and new rules, while overcoming the objections of the Regulations and Ordinances Committee, might be legally the same in substance as the previous rules.¹⁰⁵ The resolution preserved the right of any senator to prevent the withdrawal of the notice of motion until the Senate next met, thus keeping the spirit of standing order 78.

Standing order 83(2) provides that a motion not moved when the notice is called on is withdrawn. If, however, a senator declines to move a disallowance motion when the notice is called on (in the circumstance, for example, of the Senate rejecting a motion by the senator to postpone it), it is not withdrawn under standing order 83(2) until other senators have an opportunity to take it over and move it in accordance with standing order 78. On the senator declining to move the motion when the notice is called on, the chair designates either a time on the next day of sitting or a time later in the sitting (depending on whether it is the last day for resolving the matter) by which the notice will be withdrawn if no other senator takes it over. A senator taking over a disallowance notice in these circumstances is entitled to specify a future day for moving the motion, provided that that day is within the statutory time limit for resolving the notice.¹⁰⁶

Standing order 78 is regarded as applying to any disallowance-type provision even if it does not strictly fall within the language of the standing order. Thus leave was required to withdraw a notice of motion to amend disability standards under the Disability Discrimination Act 1992, the standards being subject to amendment and approval provisions inserted into the statute by amendment by the Senate.¹⁰⁷

Effect of end of a Parliament or session

As has been noted above, the Legislation Act, s. 42(3) contains an important safeguard to ensure that the opportunity to disallow a legislative instrument is not lost when a Parliament or a session ends. As explained in Chapter 7, either of those occurrences terminates the business before the Senate, including notices of motion. An unresolved disallowance notice, however, results in the instrument in question being deemed to be tabled again on the first sitting day of the next session, so that disallowance action may start afresh. [update: For example, the Fair Work Amendment (Casual Loading Offset) Regulations 2018 [F2018L01770] came into effect in December 2018 and were tabled on the first sitting day in 2019. Notice of a disallowance motion was given the following day (13/2/2019, J.4265), but was not determined when the parliament was prorogued in April. The instrument was deemed to be tabled again at the beginning of the 46th Parliament (2/7/2019, J.40). Notice of disallowance was again given (11/9/2019, J.428), within 15 sitting days of the deemed tabling. The motion was debated and defeated (16/9/2019, J.503-4), so the regulations continued in force.]

Remaking of instruments following disallowance

~~Section 48 of the Legislation Act provides:~~ [update: A safeguard in the disallowance process is that a legislative instrument may not be remade within 6 months of its disallowance without the approval of the House which disallowed it. From 1932 until 2015, the disallowance provisions in the Legislation Act and its predecessors contemplated the relevant House "rescinding" its resolution of disallowance. For instance, until 2015 ~~the~~ section 48 of the Legislation Act provided:]

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:
1. 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
2. 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.
Any legislative instrument or provision made in contravention of this section has no effect.

[update: That provision was amended in 2015 to remove the language of rescission, so that a disallowed instrument may be remade "if the relevant House of the Parliament approves, by resolution, the making of a legislative instrument or provision the same in substance as the disallowed instrument or provision": Legislation Act 2003, subsection 48(2). Although in its earlier form the provision purported to require the Senate to rescind the original disallowance resolution, in fact such a motion was entirely prospective in permitting a new instrument to be made: see Chapter 9, under Rescission or resolutions and orders.

The development and interpretation of the provision is set out below.]

For the meaning of "the same in substance" see above, under Remaking instruments subject to tabling and disallowance. Although the meaning of the term appeared settled by Victorian Chamber of Manufactures v the Commonwealth (1943) 67 CLR 347 at 364, this interpretation was not followed by the Federal Court in 2015 in dismissing an application for a ruling of invalidity in respect of the Family Law (Fees) Amendment (2015 Measures No. 1) Regulation 2015. The regulation was challenged on the basis that it was the same in substance as Schedule 2 of the Federal Courts Legislation Amendment (Fees) Regulaton 2015 disallowed by the Senate less than 6 months earlier. The remade regulations provided for a $5 difference in what was an otherwise substantial fee increase but Dowsett J. dismissed the application, finding that section 48 of the Legislation Act "should be construed as requiring that, in order that a legislative instrument be invalid, it be, in substance or legal effect, identical to the previously disallowed measure".¹⁰⁸

The statute was amended in 1932 to include the 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 reenactment 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.¹⁰⁹ Although the Governor-General, in his reply, could not comply with the Senate's request, the subsequent amending legislation met the wishes of the Senate.¹¹⁰

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.¹¹¹ 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.¹¹² As explained in Chapter 9, these motions are not technically rescission motions and are now not treated as such.¹¹³

On 9 March 2010 the government withdrew a notice of motion to permit the remaking of Aviation Transport Security Amendment Regulations which the Senate disallowed on 10 September 2009, the six month moratorium on remaking regulations the same in substance having expired. The regulations were remade and subsequently disallowed again on 24/6/2010.¹¹⁴

[update: In February 2018 the Senate disallowed an amendment to the Murray-Darling Basin Plan, which had been made following a mandatory consultation process. After agreement was reached to remake the instrument, the government introduced a bill to remove the associated consultation requirements. The Senate resolution approving the remaking of the instrument was made by way of a second reading amendment to the bill: 14/2/2018, J.2728; 25/6/2018, J.3286. This was the first time that the Senate had passed a resolution to approve the remaking of a disallowed instrument since subsection 48(2) was amended in 2015.]

See under Disallowance, above, for disallowance of instruments already disallowed, repealed 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, having only prospective effect.

Disallowance of a repealing instrument

The disallowance of an instrument which repeals, in whole or in part, an earlier instrument revives the repealed provision from and including the date of disallowance of the repealing instrument.¹¹⁵

In its 66th report in 1979, the Regulations and Ordinances Committee considered the question of whether the disallowance of an instrument which repeals another instrument has the effect of reviving the repealed instrument. There appeared then to be obscurity in the law on this matter and the committee considered that the obvious solution was for the legislation to be amended so as to provide explicitly for the effect of the disallowance of a repealing instrument. The committee was strongly in favour of the common law rule of revival being applied to the disallowance of regulations and other instruments. The common law rule of revival is that repeal of a statute which has repealed an earlier statute has the effect of reviving the earlier repealed statute.¹¹⁶ On 26 May 1981 the Attorney-General informed the Senate that the Government had decided to introduce amendments to the legislation to implement the committee's recommendation, that is, that the common law rule of revival should, by statute, be applied to the parliamentary disallowance of all instruments.¹¹⁷ This was done in 1982.

In 2009 the effect of disallowing an item in the table of Medicare rebates was the subject of Senate consideration. Disallowance of an individual item does not revive the preceding item unless the whole of the regulations are disallowed. This is because the regulations repeal the previous regulations and disallowance of this provision is necessary to trigger the revival. In any case, as these particular regulations expire annually by force of statute, disallowance of the whole regulation would result in temporary revival only. If an item is disallowed then, without any other action, a gap is left in the rebate tables in respect of the item. The non-government parties sought to address the problem with a bill to provide that the disallowance of any item would revive the previous item (Health Insurance Amendment (Revival of Table Items) Bill 2009).¹¹⁸ Although the bill was passed by the Senate, debate on it was suppressed in the House of Representatives, the government claiming it had legal advice that the bill was 'unconstitutional'. Neither the advice nor the grounds for this view have been disclosed.

In 1996 a new government adopted the tactic of disallowing the regulations of its predecessor in the House of Representatives, thereby avoiding the making of repealing regulations which could be disallowed by the Senate. The Senate passed a motion condemning this practice.¹¹⁹

"Sunsetting" of instruments

Chapter 3 of the Legislation Act contains provisions for "sunsetting" of legislative instruments, that is, ceasing their operation, generally after ten years. Sections 52 and 53 provide for the tabling of lists of instruments to be "sunsetted", and for either House to resolve, within 6 months after tabling, that particular instruments or provisions continue in effect. In effect, each House is empowered to veto a "sunsetting".

[update: In August 2017, the Chair of the Regulations and Ordinances Committee withdrew a protective disallowance notice given by the committee in respect of a "Sunsetting Exemption" regulation: 15/8/2017, J.1707. At the same time the committee set out its views about exemptions from sunsetting arrangements more broadly, emphasising their importance in ensuring that legislative instruments are kept up to date and only remain in force for so long as they are needed: Delegated Legislation Monitor No. 9 of 2017.]

Judicial Decisions Rarely Affect Health Policy Because Judges Cannot Write New Laws.

Source: https://www.aph.gov.au/About_Parliament/Senate/Powers_practice_n_procedures/Odgers_Australian_Senate_Practice/Chapter_15