78    Disallowance motions

1. A senator who wishes to withdraw a notice of motion standing in the senator’s name to disallow, disapprove, or declare void and of no effect any instrument made under the authority of any Act which provides for the instrument to be subject to disallowance or disapproval by either House of the Parliament, or subject to a resolution of either House of the Parliament declaring the instrument to be void and of no effect, shall give notice to the Senate of the intention to withdraw the notice of motion.

2. Such notice of intention shall be given in the same manner as a notice of motion, shall indicate the stage in the routine of business of the Senate at which it is intended to withdraw the notice of motion, and shall not have effect for the day on which it is given; except that, if given on a day on which by force of the statute the instrument shall be deemed to be disallowed if the motion has not been withdrawn or otherwise resolved, or on a day on which by force of the statute the motion must be passed in order to be effective, such notice of intention may have effect for a later hour of that day.

3. If another senator, at any time after the giving of such notice of intention and before the withdrawal of the notice of motion, indicates to the Senate an objection to the withdrawal of the notice of motion, that senator’s name shall be put on the notice of motion, the name of the senator who wishes to withdraw the notice of motion shall be removed from it, and it shall not be withdrawn; but if no senator so objects to the withdrawal of the notice of motion, it may be withdrawn in accordance with such notice of intention.

Amendment history

Adopted:

• [23 August 1979, J.883–84, as a sessional order; readopted 26 November 1980, J.23]
• 26 November 1981, J.716–17, as SO 109A

1989 revision: Old SO 109A restructured as three paragraphs and renumbered as SO 78; a cross reference to SO 58 removed as superfluous

Commentary

Senator Ian Wood (Lib, QLD), long-term chairman of the Regulations and Ordinances Committee (Source: Commonwealth Parliamentary Handbook)

The Senate from its earliest years has had a strong interest in the scrutiny of delegated legislation, but this was put on a professional footing in 1932 with the establishment of the Standing Committee on Regulations and Ordinances (see SO 23). While the committee handles a great deal of the business of scrutinising delegated legislation, individual senators continue to initiate motions for the disallowance of individual instruments or parts thereof. This is done within the framework of the Legislative Instruments Act 2003 but was formerly done under provisions of the Acts Interpretation Act 1901, as amended from time to time to create an increasingly sophisticated framework for disallowance and its consequences. See Odgers’ Australian Senate Practice, 12^th edition, Chapter 15, for details of the disallowance process.

Once an instrument has been registered, it must be tabled in each House of the Parliament within 6 (formerly 15) sitting days if it is to remain effective. A member of either House (but, in practice, usually a senator) then has 15 sitting days in which to give notice of a motion to disallow the instrument. A third period, also of 15 sitting days, is then available within which to resolve the matter, either by bringing the motion to a vote or by the senator who gave the notice withdrawing it. An instrument in relation to which a disallowance motion has not been so resolved by the end of the fifteenth sitting day is deemed to have been disallowed. The Act also provides restrictions on the remaking of instruments which have been disallowed (see SOs 86 and 87).[1]

Senator james Cavanagh (ALP, SA), famous for his defence of the rights of individual senators (Source: Commonwealth Parliamentary Handbook)

In 1970 concern was expressed at the process for withdrawing disallowance notices and the potential for offending the rights of senators. Upon the withdrawal of a disallowance notice given by the Chair of the Regulations and Ordinances Committee (Senator Wood, Lib, Qld), the Leader of the Opposition in the Senate, Senator Murphy (ALP, NSW), drew attention to a difficulty inherent in the process. If a senator withdrew a notice after the period for giving notice had expired, the rights of other senators, who may have abstained from giving their own disallowance notices on the basis that there was already one in the system, could be infringed and their opportunity lost. A process was needed to preserve those rights:

I think we need to pay some attention to how this ought to be dealt with so that we do not have the position in which the rights of an individual senator might be prejudiced. I am not referring to this particular subject matter. I do not regard the existing practice as being satisfactory, and I suggest, with respect, that the Regulations and Ordinances Committee consider a procedure whereby, if a notice of motion is withdrawn, it is done in a way which will give ample opportunity to any other senator to invoke the procedures for disallowance under the Acts Interpretation Act.[2]

It was not the Regulations and Ordinance Committee but the Standing Orders Committee that came back to the Senate two years later with a proposal for adding a proviso to SO 77(3) (on the withdrawal of notices) that would allow another senator to take over a disallowance motion that the initiating senator did not wish to proceed with. In the meantime an occasion had arisen on which a senator had been granted leave to take over a disallowance motion from another senator who no longer wished to pursue it.[3] The Standing Orders Committee’s report was tabled on 12 October 1972[4] but not acted upon before the December 1972 election which brought about a change in government. The issue lapsed for the time being.

In 1978, another episode brought renewed focus to the underlying flaw in the procedures when Senator Chipp (AD, Vic) explained why he was withdrawing a disallowance notice he had given the previous day. Senator Cavanagh (ALP, SA), famous for his sensitivity to any potential trespass on the rights of senators, took a point of order on the need for an established right of senators to take over a disallowance notice when its initiator wished to withdraw it. President Laucke assured him that, although the matter had been examined before, it would be examined again.[5] This time the Standing Orders Committee devised a comprehensive solution involving a senator giving notice of his or her intention to withdraw a disallowance notice so that other senators would be formally advised and have the opportunity to take it over.[6] Provision was also made for a notice of intention to withdraw being given on the last day for resolving the motion. It was a solution that reconciled the technical complexities of the Acts Interpretation Act with the rights of senators and was adopted, without debate, as a sessional order on 23 August 1979, renewed on 26 November 1980 and finally adopted as a standing order, again without debate, exactly a year later.[7] The mechanism is also applied when a senator fails to move a disallowance motion when it is called on. In these circumstances, the Chair makes a statement providing an opportunity for any other senator to take over the motion, failing which it will be withdrawn.

The procedure for withdrawal of disallowance motions is different in principle from the withdrawal of other kinds of notices because of the statutory time constraints. Other notices may be withdrawn as of right, without leave, because they are regarded as being in the possession of the initiating senator (see SO 77).