Chapter 15 - Delegated
legislation and disallowance
Withdrawal of notice of motion
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:
(1) 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.
(2) 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shall be deemed to be disallowed if the motion has not been withdrawn or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.
(3) 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removed from it, and it shall not be withdrawn; but if no senator so objects to
the withdrawal of the notice of motion, it may be withdrawn in accordance with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.
For instances of senators taking over disallowance motions, see 14/11/1986, J.1398; 18/12/1989, J.2389; 24/3/1992, J.2093; 10/9/1996, J.546. (See Supplement). In each
instance, a senator was taking over the motion to disallow from the Regulations
and Ordinances Committee chair. (See Supplement)
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
(11/10/2000, J.3375). (See Supplement)
(See Supplement)
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. (See Supplement)
For the
withdrawal without notice or leave of a notice of motion for disallowance which
was not regarded as effective because it was given before the regulations
concerned were tabled, see 19/6/2002, J.402-3, 408. For the withdrawal of a
notice after the regulations concerned were disallowed, see 24/11/2003, J.2693.
An unusual
resolution was passed on 30 June 1994 (J.2002) 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. 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 LIA. 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. The High Court has taken a broad view of the meaning of “the same in
substance” (Victorian Chamber of Manufactures v Commonwealth 1943 67 CLR 347), and new
rules, while overcoming the objections of the Regulations and Ordinances
Committee, might be legally the same in substance as the previous rules. 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. (17/10/2002, J.914)
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 (23/10/2002, J.967-8).
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