Delegated legislation
Delegated (also known as subordinate) legislation is legislation made not directly by an Act of the Parliament, but under the authority of an Act of the Parliament. Parliament has regularly and extensively delegated to the Executive Government limited power to make certain regulations under Acts. Other forms of delegated legislative authority include:
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ordinances (of Territories and regulations made under those ordinances);
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determinations (for example, of the Public Service Commissioner, the Presiding Officers and the Remuneration Tribunal);
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orders and rules;
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by-laws; and
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standards, principles, guidelines, declarations, notices, plans of management and approvals.
Delegated legislation can take a multitude of forms and this list is not exhaustive. The Legislation Act uses the term ‘legislative instrument’ to cover the wide range of delegated legislation, although specific types of delegated legislation are excluded from the definition of legislative instrument and thus from the application of the Act.
Delegated legislation is necessary and often justified by its facility for adjusting administrative detail without undue delay, its flexibility in matters likely to change regularly or frequently, and its adaptability for other matters such as those of technical detail. Once Parliament has by statute laid down the principles of a new law, the Executive may by means of delegated legislation work out the application of the law in greater detail within, but not exceeding, those principles.
Parliament retains ultimate legislative authority over delegated legislation. As well as being able to nullify delegated legislation using its power of disallowance, as outlined in the following pages, it is able to pass primary legislation to modify or overturn provisions made in delegated legislation.
It is possible, although rare, for an Act to provide that provisions set out in the Act can be altered by regulation. The Re-establishment and Employment Act 1945 gave the Governor-General power to make regulations providing for the repeal or amendment of, or addition to, any provision of the Act, subject to the (then) disallowance provision of the Acts Interpretation Act. The power thus given was unusual, and one that should not be given except under special circumstances (a wartime limit was placed on any amendments of the Act effected by the regulations). The Attorney-General stated that in this case it was thought that the methods for re-establishment and employment laid down in the Act, being to some extent of an experimental nature, might need urgent revision from time to time in the light of experience and, for that reason, the regulation-making power had been extended. Moreover, the cessation of operation of any regulation under the Act at the termination of the war would then necessitate an overhaul of the Act and amendments made by regulations. The Re-establishment and Employment Act 1951 repealed the power of amendment by regulation and provided for the repeal of the Re-establishment and Employment Regulations and the continuance of certain amendments. In more recent times the Administrative Arrangements Act 1987 empowered the Governor-General to make amendments to any Act by regulation if made necessary or convenient as a result of specified new administrative arrangements. However, a ‘sunset’ provision provided that this section of the Act would only be in effect for one year.
Legislative Instruments Act
Before 2005, delegated legislation was governed by the Acts Interpretations Act 1901, as outlined in earlier editions of this publication. The Legislative Instruments Act 2003 commenced operation on 1 January 2005.
The Legislative Instruments Act re-enacted, with some amendment, the provisions of former sections 46A and 48 to 50 of the Acts Interpretation Act that related to regulations and extended their operation to all legislative instruments. Changes included the provision for registration to replace gazettal as the means of publication of legislative instruments, and the shortening of the time allowed for their presentation to each House. Explicit provision for partial disallowance was also new. In contrast to the previous situation in which instruments were declared disallowable by their enabling legislation, instruments were now disallowable unless specifically exempted.
Legislation Act
In 2016 the Legislative Instruments Act 2003 was renamed the Legislation Act 2003, and was extended in scope to establish a comprehensive regime for the publication of all Commonwealth legislation, including Acts, and related notices. The revised Act also created a new category of notifiable instrument, for notices of a legal nature that are not legislative but still of long term public interest.
The Legislation Act 2003 did not change existing requirements relating to the making of legislative instruments, and did not change the existing provisions for parliamentary scrutiny and disallowance. Guidance to government agencies on their obligations under the Legislation Act is provided by the Legislative instruments handbook.
Making and registration of legislative instruments
Notification of intention and consultation
Makers of legislative instruments are required, in most circumstances, to notify their intention to make a legislative instrument and then to consult with persons and organisations likely to be affected by the proposal.
Federal Register of Legislation
All new legislative instruments made are required to be recorded in the Federal Register of Legislation. Generally, a legislative instrument that is required to be registered is not enforceable unless it is registered. Unless otherwise specified, a legislative instrument comes into force the day after the day it is registered.
Sunset provisions
With some exceptions, a ten year sunset clause is imposed on all registered instruments, dating from the registration of the instrument. Continuation of the instrument may be granted by resolution of either House, in which case it is taken to have been remade.
Parliamentary scrutiny and control
Delegated legislation is required to be laid before each House, thereby becoming subject to parliamentary scrutiny and, in most cases, to the Parliament’s power of veto.
Consultation of the relevant enabling Act in conjunction with the Legislation Act is necessary to ascertain the conditions operating in relation to any particular form of delegated legislation or type of instrument. The provisions of an existing enabling Act in respect of delegated legislation may be different from the provisions of the Legislation Act—for example, by replacing the tabling or disallowance periods with a different period. However, it should be noted that in such cases the Legislation Act may now override the provisions of the enabling Act.
Under the Legislation Act legislative instruments must be tabled in each House within 6 sitting days following registration, even in cases where the instrument is not disallowable. Unless laid before each House within this time limit, a legislative instrument ceases to have effect. Explanatory statements for legislative instruments are also presented.
In practice the tabling period may extend for some time, as a long adjournment or even dissolution and election could intervene between sitting days. In the latter case there could, for example, be four sitting days in one Parliament and two in the next. Instruments do not need to be presented again in the new Parliament.
After a legislative instrument has been registered, no instrument the same in substance can be made while the original instrument remains subject to the tabling requirement, unless the remaking of the instrument has been approved by both Houses.
Presentation to the House
After registration, legislative instruments are delivered to the Clerk (or staff of the House) and are recorded in the Votes and Proceedings as ‘deemed documents’. An instrument so delivered to the Clerk is deemed to have been presented to the House on the day on which it is recorded in the Votes and Proceedings. Documents received on a sitting day before 5 p.m. (3 p.m. on Thursdays) are recorded in the Votes and Proceedings of the day of receipt. In other circumstances they are recorded in the Votes and Proceedings of the next sitting day.
Although this is not common, legislative instruments can also be presented to the House in the same manner as ordinary documents, and a motion to take note of the document or documents may be moved and debated. An example of this occurred in 1986 when a Minister presented an amending regulation to certain Export Control (Orders) Regulations and made a ministerial statement concerning them. Debate ensued on the question that the House take note of the documents (regulation and statement) to which a Member moved an amendment to disallow the regulation; debate was adjourned and not resumed.
Disallowance
Not all legislative instruments that are required to be presented are able to be disallowed. The Legislation Act lists categories of legislative instrument that are not subject to disallowance, and those that are not subject to disallowance unless so subject under their enabling legislation or by means of some other Act.
In most cases legislative instruments are effective unless and until disallowed, but an Act may provide that an instrument made pursuant to it does not come into effect until the disallowance period has expired.
If a 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.
If at the end of 15 sitting days of that House after the giving of that notice of motion:
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the notice has not been withdrawn and the motion has not been called on; or
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the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;
the instrument or provision specified in the motion is then taken to have been disallowed and ceases at that time to have effect.
If the House is dissolved or expires, or the Parliament is prorogued, before the expiration of the 15 sitting days, any legislative instrument that is the subject of a disallowance motion is taken to have been laid before the House on the first sitting day after the dissolution, expiry or prorogation. Any notice to disallow given in the previous Parliament (or in the case of prorogation, the previous session) must be given again to have effect. For an instrument which is not the subject of a disallowance motion the count of 15 sitting days continues into the following session or Parliament.
While a legislative instrument is subject to disallowance, an instrument or provision that is the same in substance may not be made. Where a legislative instrument or provision of a legislative instrument has been disallowed or taken to have been disallowed, an instrument or provision that is the same in substance may not 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 instrument or provision, as the case may be.
While a legislative instrument is subject to disallowance, a House may require any document incorporated by reference in the instrument to be made available for inspection.
For advice on the calculation of the duration of disallowance periods see ‘Reckoning of time’ below.
Action in the House—giving notice of disallowance
Each sitting day the Table Office produces a Disallowable Instruments List. This is a listing of instruments which have been presented and which are subject to possible disallowance, showing the number of sitting days remaining for Members to give notice of disallowance.
When a notice of disallowance is given it appears in the Notice Paper with a note showing the number of sitting days remaining before the instrument or provision concerned is taken to be disallowed.
The content of a notice of disallowance is usually only the proposal that the legislative instrument in question be disallowed. However, on occasion notices have included additional comment—for example, proposing alternative measures or giving reasons.
Of the hundreds of pieces of delegated legislation presented each year very few are ever formally considered, let alone disallowed, by the House. Almost invariably, notices of disallowance are given by private Members, and these are subject to the same procedures as other items of private Members’ business. However, the Selection Committee does not select them for debate during the private Members’ business period on Mondays and, in view of the fact that disallowance will occur unless a notice is called on and dealt with within the specified time, the general practice is for the Government to move that standing orders be suspended to permit them to be moved and debated during government business time.
The passage of a resolution of disallowance or the deemed disallowance of a legislative instrument is notified in the Gazette ‘for general information’ by the Clerk of the House responsible.
Reckoning of time
The periods specified for the presentation and disallowance of legislative instruments, or for that matter any period counted in sitting days, may extend for a considerable time. Months can elapse when a count continues into a new Parliament. Even in the same session, long adjournments can intervene between sittings. Any differences between the House and the Senate sitting calendars also need to be taken into account.
Pursuant to the Acts Interpretation Act any period of time prescribed or allowed by an Act dating from a given day, act or event, unless the contrary intention appears in the Act, is reckoned exclusive of the day of such act or event. The day on which a legislative instrument is presented therefore is not taken into account for the purposes of determining the number of sitting days within which it may be disallowed. A sitting may extend beyond a calendar day but constitute only one sitting day. Similarly, a sitting which is suspended and resumed on a later day constitutes only one sitting day. Any disputed question on the reckoning of time would be, initially at least, for the House itself to decide. The possibility of the matter being subsequently the subject of litigation cannot be ruled out, in which case it could be a matter for the courts to consider.
A notice of disallowance lodged on the last possible sitting day has been regarded as valid, the provisions of standing order 108—that a notice only becomes effective when it appears on the Notice Paper—not being seen as cutting down the then provisions of the Acts Interpretation Act which referred to a notice given ‘within 15 sitting days’.
Notice to disallow before presentation
The question has been raised as to whether a notice of motion disallowing a legislative instrument should be accepted before the legislative instrument is laid before the House. The matter was canvassed in the Senate in 1942 when a Minister informed the Senate that Senators could move for the disallowance of a regulation without it being tabled, based upon the High Court judgment in Dignan’s case.
In response to a request for an opinion, the Attorney-General’s Department advised the Clerk of the Senate on 25 March 1942 that the decision in Dignan’s case should still be regarded as authority for the proposition that it is not a condition essential to the validity or operation of a resolution of disallowance that the regulations should first be laid before the House. The Chairman of the Senate Regulations and Ordinances Committee, in a memorandum on the disallowance of regulations, and on the judgments in Dignan’s case, concluded that the question of whether disallowance is effective where a regulation is not laid before the Senate (or the House) was still an open one as far as the High Court was concerned, and that any doubt on the matter could be avoided if motions for disallowance were not moved before the regulations were tabled. It was considered that a similar attitude might commend itself to the House of Representatives. Section 42 of the Legislation Act refers to disallowance where a notice has been given ‘within 15 sitting days of that House after a copy of the instrument was laid before that House’.
In the House a notice of motion has been given before the relevant regulations were tabled. On 29 November 1940 Statutory Rules No. 269 (National Security Aliens Control Regulations) were made, and on 3 December 1940 a Member gave a notice of motion for their disallowance, whereas the regulations were not tabled until 9 December 1940. On 2 April 1941 the Member raised a matter of privilege in which he claimed that the regulations were null and void as his motion for disallowance had not been dealt with within 15 sitting days after notice was given. The Minister replied that he believed the motion was out of order, as it was placed on the Notice Paper some days before the statutory rules were tabled; if the Member wished to take any action in the matter, the opportunity to do so was still open to him. The Speaker stated that the question of whether the statutory rules were null and void was a matter of law, the curtailment of any rights of the Member was a matter of privilege. The Member concluded the matter, not by moving a motion relating to privilege, but rather by giving notice of motion of no confidence in the Minister. Later in the day, standing orders having been suspended, the Member moved the no confidence motion but it lapsed for want of a seconder.
Approval
The Parliament’s control of delegated legislation is usually exercised through the disallowance procedure. An alternative means of parliamentary control is to provide that specific delegated legislation may come into force only with the explicit approval, by affirmative resolution, of both Houses. Although not common, this practice has been used from time to time in recent years, especially in respect of certain types of legislative instrument variously described as statements, charters, agreements, declarations, guidelines, etc.
An Act may provide for the Houses to be able to amend the instrument in question during the process of approving it. 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.
The conditions for approval vary and depend on the requirement of the particular Act. The requirement may be simply that an instrument must be approved by both Houses to come into effect. A more complicated requirement may be, for example, that an instrument comes into effect after 15 sitting days of being tabled in both Houses, unless a notice of motion to amend the instrument is given in either House, in which case the instrument, whether or not amended, must be approved by both Houses.
While notices of motions of approval moved by Ministers are taken as government business, motions of amendment, as in the above example, would in the normal course be moved by opposition Members and be subject to the usual private Members’ business procedures.
Approval provisions have sometimes been inserted into bills in the Senate when it has been thought that particular instruments merited special control procedures. However, there may on occasion be another reason for their use—the approval of regulations by both Houses at the time of presentation does offer the possibility of a more rapid and certain outcome than waiting the required period for potential disallowance. An Act has provided for either disallowance or approval in respect of the same regulations—the disallowance procedures ceasing to apply in the case of the regulations being approved.
Regulations and Ordinances Committee
The Senate, in 1932, established by standing order a Standing Committee on Regulations and Ordinances to be appointed at the commencement of each Parliament, to which 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, stand referred for consideration and, if necessary, report. The committee scrutinises delegated legislation to ensure that:
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it is in accordance with the statute;
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it does not trespass unduly on personal rights and liberties;
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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
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it does not contain matter more appropriate for parliamentary enactment.
The committee traditionally operates on a non-partisan basis and refrains from considering the policy of delegated legislation. The committee’s reports usually consist of accounts of amendments made to legislation to accommodate the committee’s objections. Notices of disallowance are given on occasion, but these are often withdrawn after undertakings are received from Ministers, for example, to have provisions changed.