Chapter 15 - Delegated
legislation and disallowance
Tabling
as a condition of disallowance
A legislative
instrument not laid before each House within 6 sitting days after registration
ceases to have effect (LIA s. 38(3)). 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 (J.254-5), 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has since been repealed by the Act of 1937 (No. 10), the new section, 48, which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 LIA.
In 1988 (23/8/1988, J.850) Senator Puplick gave notice of a motion
to disallow regulations before they were tabled. The notice was withdrawn on 25 August 1988 (J.878) but
revived four days later when the regulations were eventually tabled. (See also
Workplace Relations Regulations, 15-16/2/1999, J.436, 450-1.)
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 (18/6/2002, J.381; 19/6/2002,
J.402-3, 408).
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