Chapter 15 - Delegated
legislation and disallowance
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which repeals, in whole or in part, an earlier instrument revives the repealed provision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. (LIA,
s. 45(2))
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which repeals another instrument has the effect of reviving the repealed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has repealed an earlier statute has the effect of reviving the earlier repealed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. (PP 116/1979; SD, 8/6/1979, pp 2932-3) (In relation to
statutes, however, the common law rule has been reversed.) On 26 May 1981 (SD,
pp 2084-6) 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. This was done in 1982. (See Supplement)
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 (27/6/1996, J.422-3).
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