Chapter 2
Delegated legislation and the disallowance process
Introduction
2.1
This chapter provides an overview of delegated legislation, the
disallowance process and the Legislative Instruments Act 2003 (LIA).
What is delegated legislation?
2.2
Many Acts of Parliament delegate to executive government the power to
make regulations, ordinances, rules and other instruments (such as
determinations, notices, orders and guidelines). Such instruments supplement
their authorising Act, and have the same force in law. 'Delegated legislation'
is a collective term referring to such instruments.
2.3
Because they are made under a delegated power, instruments of delegated
legislation are not directly enacted by the Parliament, as must happen for a
bill to become an Act with the force of law. Therefore, to ensure that
Parliament retains effective oversight, any such instrument is usually: (a)
required to be registered on the Federal Register of Legislative Instruments
(FRLI);[1]
(b) required to be tabled in the Parliament; and (c) subject to a disallowance
process prescribed by the LIA, which may be initiated by any member of either
the Senate or the House of Representatives.
What is a disallowable instrument?
2.4
A 'disallowable instrument' is an instrument of delegated legislation
that is subject to the disallowance process prescribed by the LIA (see below
for a description of the disallowance process).
Legislative instruments
2.5
The LIA generally requires that disallowable instruments will be those
instruments that are 'legislative' in character, meaning those instruments
which define the law as opposed to those which apply the law in a specific case
(and are therefore 'non-legislative' in character);[2]
and which affect a privilege, interest or right. Specifically, section 5 of the
LIA states that a legislative instrument is:
...an instrument in writing:
(a) that is of a legislative character; and
(b) that is or was made in the exercise of a power delegated
by the Parliament.
(2) Without limiting the generality of subsection (1), an
instrument is taken to be of a legislative character if:
(a) it determines the law or alters the content of the law,
rather than applying the law in a particular case; and
(b) it has the direct or indirect effect of affecting a
privilege or interest, imposing an obligation, creating a right, or varying or
removing an obligation or right.
2.6
The LIA also declares certain instruments to be legislative instruments,
thereby making all such instruments subject to its general scheme.
Specifically, subsection 5(3) provides that an instrument registered on
FRLI is taken, by virtue of that registration, to be a legislative instrument;
and section 6 provides that particular types of instrument, such as
regulations and ordinances, are to be classed as legislative instruments.
Subsection 5(4) provides that an instrument of mixed character (that is,
one that has both a legislative and non-legislative character) is deemed to be
a legislative instrument.
Disallowable non-legislative
instruments
2.7
An instrument that is non-legislative in character may nevertheless be
subject to the scheme of the LIA by virtue of the operation of the Acts
Interpretation Act 1901 (the AIA).
2.8
Subsection 46B of the AIA provides, inter alia, that where an Act
confers a power to make a non-legislative instrument, and that Act provides
that the instrument is a disallowable instrument, then it is subject to the
same procedures for parliamentary scrutiny as a legislative instrument.
Exemptions from disallowance
2.9
The LIA provides that certain instruments are exempt from disallowance
by providing either that a type of instrument is not a legislative instrument
for the purposes of the LIA or is otherwise not subject to disallowance.
2.10
Section 7 declares certain instruments not to be legislative instruments
for the purposes of the LIA. This includes legislative instruments listed in
the table set out in the provision, and legislative instruments that are
declared not to be legislative instruments by the Act or instrument under which
they were made.
2.11
Section 44 of the LIA provides that the disallowance process contained
in section 42 does not apply to certain legislative instruments, including
those instruments listed in the table set out in that provision.
Legislative Instruments Act 2003
2.12
Prior to 2005, the committee's scrutiny of delegated legislation was
wholly governed by the AIA, which contained the scheme requiring regulations
and other disallowable instruments to be tabled in Parliament and subject to the
disallowance regime.
2.13
On 1 January 2005, the AIA scheme was replaced by the scheme set out in
the LIA. While the LIA largely replicates the previous scheme, it includes a
number of important innovations, such as the requirement for the registration
of instruments on FRLI.
2.14
The main elements of the scheme contained in the LIA are:
-
instruments of delegated legislation that are of a legislative
character are subject to the disallowance process outlined in the Act;
- such instruments must be registered on FRLI, along with an
explanatory statement;
- once registered, such instruments must be delivered within six sitting
days to each House of Parliament for tabling;[3]
and
- any member of the Senate or the House of Representatives may
initiate the process to disallow any such instrument within 15 sitting days of
it being tabled. Once such a notice has been given, a further period of 15
sitting days is available to resolve the motion.
Disallowance
Purpose
2.15
The ability of the executive—usually ministers and other executive office
holders—to make delegated legislation without parliamentary enactment is a
'considerable violation of the principle of the separation of powers, [and] the
principle that laws should be made by the elected representatives of the people
in Parliament and not by the executive government'.[4]
2.16
The ability of senators and members of the House of Representatives to
seek disallowance of legislative instruments is therefore critical to ensuring
that Parliament retains effective oversight of delegated legislation.
The disallowance process
2.17
The disallowance process is set out in subsection 42(1) of the LIA,
which provides:
(1) 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
(b) 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.
2.18
In summary, subsection 42(1) provides that any member of the Senate or
House of Representatives may, within 15 sitting days of a disallowable
legislative instrument being tabled, give notice that they intend to move a
motion to disallow the instrument or a provision of that instrument. There is
then a further 15 sitting days in which the motion may be resolved.
2.19
The maximum time for the entire disallowance process to run its course
is therefore 30 sitting days (assuming the maximum available period elapses for
both the giving of notice and the resolution of the motion to disallow the
instrument or provision).
Unusual disallowance processes
2.20
In some cases, the disallowance process may be modified by the
authorising legislation under which an instrument is made, affecting the period
available for giving or resolving a notice of motion for disallowance.
2.21
For example, for a determination made under section 20(1) or (2) of the Financial
Management and Accountability Act 1997, the time available for both giving
and resolving a notice of motion for disallowance is only five sitting days.[5]
Effect of disallowance
2.22
Subsections 42(1) and 45(1) of the LIA provide that, where a motion is
passed to disallow a legislative instrument or a provision of an instrument, that
instrument or provision ceases to have effect from the time the motion was
passed.
2.23
If the disallowed instrument or provision repealed all or part of an
earlier instrument, then that earlier instrument or part is revived.[6]
2.24
Subsection 42(2) of the LIA provides that, where a notice of motion to
disallow a legislative instrument or a provision of an instrument remains
unresolved after 15 sitting days of being given (for example, where it has not
been withdrawn or put to the question), the instrument or provision is deemed
to have been disallowed and therefore ceases to have effect from that time.
This provision ensures that the disallowance process cannot be frustrated by
allowing a motion for disallowance to be adjourned indefinitely.
Restrictions on re-making
legislative instruments
2.25
In order to ensure that Parliament's power of disallowance may not be
circumvented, and to preserve the Parliament's intention in any case where a
House has disallowed an instrument, the LIA imposes restrictions on the
re-making of legislative instruments that are the 'same in substance' as an
existing or recently disallowed instrument. These are:
- for a period of seven days, unless approved by resolution by both
Houses of Parliament, an instrument may not be made that is the same in
substance as a registered instrument that has been laid before both Houses of
Parliament (or, if it was tabled on different days, seven days after it was
last tabled). This prevents the disallowance provisions from being circumvented
by an instrument being successively repealed and remade;[7]
-
an instrument may not be made that is the same in substance as an
existing instrument that is subject to a notice of motion for disallowance
(unless the notice is withdrawn; the instrument is deemed to have been
disallowed under subsection 42(2); or the motion is withdrawn, otherwise
disposed of or subject to the effect of subsection 42(3)). This prevents an
instrument simply being remade in response to notice of a motion for
disallowance; and
- for a period of six months, an instrument may not be made that is
the same in substance as an instrument that has been disallowed under section
42 (unless the House which disallowed the instrument, or in which the
instrument was deemed to have been disallowed, rescinds the resolution that
disallowed the instrument or approves it being made). This prevents an
instrument that has been disallowed, or deemed to have been disallowed, from
simply being remade.[8]
Senate procedures relating to the disallowance process
2.26
A number of the Senate's procedures are relevant to the disallowance
process in the LIA.
2.27
Standing Order 78(3) is a significant example of one such procedure,
whereby any senator has the opportunity to take over a motion for disallowance
if the original mover seeks to withdraw that motion. This ensures that the
Senate is not denied the right to disallow an instrument where the time for
giving notice has passed; and that the right of individual senators to move for
disallowance is not lost by the withdrawal of the notice.[9]
2.28
Another example is Standing Order 86, which prevents the proposing of a
question that is the same in substance as any question that has been determined
during the same session (the same question rule). This order is qualified by
the proviso that it shall not prevent a motion for the disallowance of an
instrument substantially the same in effect as one previously disallowed.
2.29
For further detail on Senate procedures relevant to delegated
legislation and disallowance, see Odgers' Australian Senate Practice, 13th
Edition (2012), Chapter 15.
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