Footnotes

Chapter 1 - Introduction

[1]        Odger's Australian Senate Practice, 13^th Edition (2012), p. 416.

[2]        The Legislative Instruments Act 2003 and the disallowance process are discussed in Chapter 2.

[3]        The 42^nd Parliament was opened on 12 February 2008 and dissolved on 19 July 2010.

[4]        Appointed 01.07.11 (elected Chair on 07.07.11).

[5]        Appointed 16.03.12 (appointed Deputy Chair on 22.03.12).

[6]        Committee member from 01.07.02 to 01.07.05; and appointed on 14.02.08.

[7]        Appointed 21.06.12.

[8]        Appointed 18.11.10.

[9]        Appointed 07.02.13.

[10]      Member from 12.03.09 to 02.02.10.

[11]      Member from 25.11.98 to 30.06.08.

[12]      Member from 13.09.05 to 01.07.11.

[13]      Member from 02.02.10 to 07.02.13.

[14]      Member from 12.05.10 to 27.09.10 (Chair from 13.05.10 to 27.09.10).

[15]      Member from 13.02.08 to 27.09.10.

[16]      Member from 09.02.06 to 11.02.08.

[17]      Member from 23.03.07 to 11.02.08.

[18]      Member from 13.02.08 to 16.03.12 (Deputy Chair from 19.02.08 to 16.03.12).

[19]      Member from 01.07.02 to 01.07.05; and appointed 14.02.08.

[20]      Member from 01.07.05 to 11.02.08 (Chair from 11.08.05 to 11.02.08).

[21]      Member from 01.07.05 to 12.05.10 (Chair from 19.02.08 to 12.05.10).

[22]      Legislative Instruments Act 2003, sections 30, 38 and 39.

[23]      Odgers' Australian Senate Practice, 13^th Edition (2012), p. 424.

[24]      Odgers' Australian Senate Practice, 13^th Edition (2012), p. 432.

[25]      As instruments may be tabled on different dates in the Senate and the House of Representatives respectively (and hence have different disallowance timeframes), there is also a House of Representatives disallowable instruments list. This list is also available at https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/leginstruments.

[26]      Since 2013 the monitor includes reporting on the work of the committee and details matters raised in relation to instruments tabled in the Senate and subsequently scrutinised by the committee.

[27]      Ministerial correspondence is incorporated into the monitor when the committee concludes its interest in the relevant matter. Prior to 2013, the committee tabled separate volumes of ministerial correspondence.

[28]      See Parliament of Australia website, 'Seminars for public servants' https://www.aph.gov.au/About_Parliament/Senate/Public_Information_and_Events/Seminars_for_public_servants.

Chapter 2 - Delegated legislation and the disallowance process

[1]        FRLI may be accessed at http://www.comlaw.gov.au/.

[2]        An example of this distinction is that an instrument which grants a licence applies the law whereas an instrument that sets out the criteria for the grant of a licence defines or establishes the content of the law (and hence would be a legislative instrument subject to disallowance under the LIA).

[3]        Under subsection 38(3), an instrument that is not tabled in each House within six sitting days of registration ceases to have effect immediately after the sixth day.

[4]        Odgers' Australian Senate Practice, 13^th Edition (2012), p. 413.

[5]        Financial Management and Accountability Act 1997, section 22 (this provision was preserved by Schedule 4 to the Legislative Instruments Regulations 2004).

[6]        LIA, subsection 45(2).

[7]        LIA, section 46.

[8]        LIA, sections 46, 47 and 48. For more detail see Odgers' Australian Senate Practice, 13^th Edition (2012), pp 420, 434-435.

[9]        Odgers' Australian Senate Practice, 13^th Edition (2012), p. 430.

Chapter 3 - Work of the committee in the 42nd Parliament

[1]        The 42^nd Parliament was opened on 12 February 2008 and dissolved on 19 July 2010.

[2]        Details of these instruments may be found on the 'Scrutiny of disallowable instruments' webpage at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_ctte/scrutinyleginst2012.htm.

[3]        The 'Disallowance alert' (the alert) provides details of the notices of motion for disallowance given by the committee, as well as by individual senators and members of the House of Representatives. The alert may be accessed at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_ctte/alert2012.htm.

[4]        Subsection 42(3) of the LIA provides that any Instruments subject to unresolved notices at the time the House of Representatives is dissolved or expires, or the Parliament is prorogued, are taken to have been tabled on the first sitting day following the dissolution or expiry of the House of Representatives, or proroguing of Parliament (effectively making the instrument subject to the disallowance process afresh).

[5]        The report may be accessed at Attorney-General's Department website, 'Legislative Instruments Act 2003,' http://www.ag.gov.au/lia-review.

[6]        The full terms of reference are set out in the LIARC's final report, which may be accessed at Attorney-General's Department website, Legislative Instruments Act 2003', 2008 Review of the Legislative Instruments Act 2003, 31 March 2009, p.59.

[7]        Senate Standing Committee on Regulations and Ordinances, Legislative Instruments Bill 2003; Legislative Instruments (Transitional Provisions and Consequential Amendments) Bill 2003 (111^th Report), October 2003, available at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_ctte/reports.htm.

[8]        Taskforce on Reducing Regulatory Burdens on Business, Rethinking regulation: report of the Taskforce on Reducing Regulatory Burdens on Business, January 2006, available at http://www.regulationtaskforce.gov.au/.

[9]        Senate Standing Committee on Regulations and Ordinances, 'Submission to LIA review', 26 June 2008, p. 2.

[10]      Senate Standing Committee on Regulations and Ordinances, Consultation under the Legislative Instruments Act 2003: interim report (113^th Report), June 2007, available at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_ctte/reports.htm.

[11]      Senate Standing Committee on Regulations and Ordinances, 'Submission to LIA review', 26 June 2008, pp 4-5.

[12]      Senate Standing Committee on Regulations and Ordinances, 'Submission to LIA review', 26 June 2008, pp 6-7.

[13]      Senate Standing Committee on Regulations and Ordinances website, 'Australia-New Zealand Scrutiny of Legislation Conference Scrutiny and Accountability in the 21^st Century', https://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=sl_conference/index.htm.

[14]      LIA, section 26 (previously LIA, section 4).

[15]      LIA, section 12(2) (prejudicial retrospectivity).

[16]      LIA, section 14 (incorporation of extrinsic legal and non-legal sources) and section 26 (previously LIA, section 4).

[17]      Senate Standing Committee on Regulations and Ordinances, Consultation under the Legislative Instruments Act 2003 (113^th Report), June 2007, available at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate_Committees?url=regord_ctte/reports.htm.

[18]      LIA, section 17, 18 and 26 (previously LIA, section 4).

[19]      Subsection 12(2) of the LIA provides that an instrument which commences retrospectively, and which would disadvantage or impose a liability on any person other than the Commonwealth, is of no effect. However, subsection 12(3) of the LIA provides that the restriction on prejudicial retrospectivity may be overturned by any contrary provision in the Act under which the instrument is made.

[20]      'Strict liability' is a standard for liability in relation to both civil penalties and criminal offences, in which a person may be found legally responsible for or guilty of an act or omission regardless of culpability or fault. 'Vicarious liability' is a form of strict secondary liability in which a person may be found liable for an act or omission done by another person, such as in cases where an employer may be liable for the conduct of an employee.