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]        Appointed 01.07.11 (elected Chair on 07.07.11).

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

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

[6]        Appointed 21.06.12.

[7]        Appointed 18.11.10.

[8]        Appointed 07.02.13.

[9]        Committee member from 13.09.05 to 01.07.11.

[10]      Committee member from 02.02.10 to 07.02.13.

[11]      Committee member from 01.07.02 to 01.07.05; and from 21.09.11 to 21.06.12.

[12]      Committee member from 13.02.08 to 16.03.12.

[13]      Committee member from 30.09.10 to 01.07.11 (Chair from 30.09.10 to 01.07.11).

[14]      Committee member from 01.07.11 to 21.09.11.

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

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

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

[18]      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 available at https://www.aph.gov.au/Parliamentary_Business/Bills_Legislation/leginstruments.

[19]      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.

[20]      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.

[21]      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 2011-12

[1]        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_c tte/scrutinyleginst2012.htm.

[2]        The 'Disallowance alert' provides details of the notices of motion for disallowance given by the committee and individual senators and members of the House of Representatives. The alert may be accessed at https://www.aph.gov.au/Parliamentary_Business/Committee/Senate_Committees?url=regord_ctt e/alert2012.htm.

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

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

[5]        LIA, section 12(2).

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

[7]        LIA, section 26 (previously LIA section 4). See also sections 17 and 18 regarding consultation requirements.

[8]        As noted above at paragraph 3.14, in September 2011 the committee produced a guideline to assist those responsible for the development of delegated legislation and ESs to properly address the requirements of the LIA in relation to consultation (see appendix 3).

[9]        The RIS process was introduced in 1997 and is administered through the Office of Best Practice Regulation (OPBR). Instrument makers are required to prepare a RIS for any instrument that directly affects, or has a substantial indirect effect on, business. A RIS is therefore usually not required for instruments that are minor or machinery in nature and do not substantially alter existing law or arrangements.

[10]      CASA ADCX 021/11 - Revocation of Airworthiness Directives [F2011L02040], ES, p. 1.

[11]      This provision reflects a longstanding concern that a person should not be subject to a penalty for acts or omissions, or to impositions, which pre-date the existence of authorising legislation. 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.

[12]      '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.