Effect of the federal election 2004 on disallowable delegated legislation


Effect of the federal election 2004 on disallowable delegated legislation

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The federal election affects the parliamentary scrutiny of delegated legislation in the following ways.

Tabling of instruments

Paragraph 48(1)(c) of the Acts Interpretation Act 1901 requires all regulations to be laid before each House of the Parliament within 15 sitting days of that House after the making of the regulations. Section 46A of that Act applies this condition to other disallowable instruments of delegated legislation as if they were regulations.

If a regulation or disallowable instrument was required to be tabled towards the end of the last Parliament and the 15 sitting days had not expired, then the remainder of those days carry over into the new Parliament. The following example illustrates this principle. Government officers should be aware that the Senate sat on 13 and 30 August 2004 - two more days than the House of Representatives before the 40th Parliament was prorogued on 31 August 2004.

Example

A disallowable instrument was made on 9 August 2004 but was not tabled in either House before the Parliament was prorogued on 31 August 2004. The instrument would need to be tabled in both Houses of the Parliament as shown below:

Senate: 5 sitting days elapsed before 31 August 2004. The instrument would therefore need to be tabled in the Senate within 10 sitting days of the beginning of the 41st Parliament.

House of Representatives: 3 sitting days elapsed before 31 August 2004. The instrument would therefore need to be tabled in the House of Representatives within 12 sitting days of the beginning of the 41st Parliament.

Notices of motion

This same principle applies to the giving of notices of motion to disallow a regulation or a disallowable instrument.

Example

If a regulation or disallowable instrument was tabled on 9 August 2004, a Senator will have until the 10th sitting day in the new Parliament to give notice of a motion to disallow that instrument and a Member would have until the 12th sitting day in the new Parliament.

Unresolved notice of motion to disallow a regulation or disallowable instrument given in the 40th Parliament

Subsection 48(5A) of the Acts Interpretation Act 1901 provides:

If, before the expiration of 15 sitting days after notice of motion to disallow any regulation [or disallowable instrument] has been given in a House of the Parliament:

  1. the House of Representatives is dissolved or expires, or the Parliament is prorogued; and
  2. at the time of the dissolution, expiry or prorogation, as the case may be:
  3. the notice has not been withdrawn and the motion has not been called on; or
  4. the motion has been called or, moved and seconded and has not been withdrawn or otherwise disposed of;

the regulation [or disallowable instrument] shall, for the purposes of subsections (4) and (5), be deemed to have been laid before that first-mentioned House on the first sitting day of that first-mentioned House after the dissolution, expiry or prorogation, as the case may be.

There were six unresolved notices of motion to disallow instruments in the Senate when the Parliament was prorogued on 31 August 2004. These notices related to the following instruments:

  • Broadcasting Services (Events) Notice (No. 1) 2004 made under subsection 115(1) of the Broadcasting Services Act 1992
  • Guidelines in relation to the exercise of Compliance Powers in the Building and Construction Industry made under section 88AGA of the Workplace Relations Act 1996 as amended by the Workplace Relations Amendment (Codifying Contempt Offences) Act 2004
  • Schedule 1 to the Migration Amendment Regulations 2004 (No.5) as contained in Statutory Rules 2004 No.223
  • Items [7], [8], [18] to [26], [35] to [40], [48] to [89], [93] to [127], [129] and [130] of Schedule 1 and item [1] of Schedule 2 and items [3] and [4] of Schedule 3 to the Migration Legislation (Fees) Amendment Regulations 2004 (No.1) as contained in Statutory Rules 2004 No.192
  • Military Superannuation and Benefits Amendment Trust Deed 2004 (No.1) made under subsection 5(1) of the Military Superannuation and Benefits Act 1991
  • New divisions 9.2A and 9.2B in item [10] of Schedule 1 to the Superannuation Industry (Supervision) Amendment Regulations 2004 (No.2) as contained in Statutory Rules 2004 No.84

The notices on these six instruments lapsed at the end of the 40th Parliament but in accordance with subsection 48(5A), these instruments will be deemed to have been tabled on the first sitting day of the Senate in the 41st Parliament. In effect, these instruments will be treated as if they had been tabled for the first time and any Senator will have 15 sitting days in which to give a notice of motion to disallow them.