The committee, supported by the statutory provisions for disallowance, has established an effective system for the parliamentary scrutiny and control of delegated legislation. This system has since been widely copied in other jurisdictions in Australia and around the world. The committee now maintains a list of these matters of interest to the Senate on its web pages.
In April the committee used this power to initiate an inquiry into the exemption of instruments from disallowance and subsequently recommended a range of measures to restrain and rationalise the practice: Final report , Exemption of delegated legislation from parliamentary oversight, March The practices of the Standing Committee on Regulations and Ordinances are described in the preceding section.
Giving notices of motions to disallow specific instruments indicates concern about the delegated legislation in question, and these are known colloquially as protective notices of motion, in that they protect the right of the committee, and of any senator, to move disallowance if it is subsequently decided that this is appropriate.
Such concern is often allayed by further explanatory material from the minister or an undertaking to amend the legislation. Where the committee's concerns are met, the notice of motion to disallow is withdrawn although it may be taken over by another senator.
There are some occasions where the responsible minister does not satisfy the committee and the motion to disallow proceeds. Frequently a protective notice of motion is withdrawn on the basis of undertakings from a minister to take action addressing the matters causing concern, usually by amending the legislation in question. The practice of ministerial undertakings has the benefit of securing an outcome agreeable to the committee without necessarily interrupting administration and implementation of policy by disallowance of the instruments in question.
Undertakings, however, must be carried out promptly for this system to work. This is a source of serious, continuing and active concern to the committee. During a period when there was a particularly notable failure to fulfil undertakings promptly, the committee observed:. A highly unsatisfactory situation arises when undertakings by Ministers are not carried out promptly and expeditiously, in that provisions recognised to be defective are allowed to stand and the public effectively lack the protection which the disallowance procedure and the Committee are designed to give.
In its annual report for the committee again recorded its apprehensions about delays in giving effect to ministerial undertakings:. The Committee is concerned that it could undermine the whole basis of parliamentary honour on which the undertaking convention is based, if the implementation of undertakings is not expedited as quickly as possible after a Minister has given his or her word to act.
To countenance excessive delay is not only a discourtesy to the Senate but it is also a continuing affront to principles of freedom, justice, fairness and propriety if objectionable provisions are left on the delegated statute book in spite of parliamentary requests for amendments and in contravention of ministerial commitments to make amendments.
It is customary for the committee, in its delegated legislation monitors or in tabled correspondence, to record all undertakings which have been given and discharged, and those which have been given and are still to be implemented. Senators other than the chair of the committee also occasionally withdraw disallowance motions on the basis of ministerial undertakings. Ministerial undertakings given following the report of a committee on regulations were the subject of debate on 8 November The procedures for making delegated legislation are markedly different from those used in enactment of a statute.
There are no stages for legislative passage or opportunity for amendment, and there are no procedural restraints upon rushed legislation. There is a prohibition on retrospectivity of delegated legislation where the rights of a person are affected to the disadvantage of that person, or where liabilities are imposed on a person.
These limits do not, however, apply to the rights of the Commonwealth or a Commonwealth authority. Section 38 of the Legislation Act provides that copies of all legislative instruments be laid before each House of the Parliament within 6 sitting days of that House after registration. Instruments not laid before each House within the prescribed period after registration cease to have effect. This system to enforce tabling, which was similar under the earlier legislation, may not be totally fool-proof.
In it was discovered that disallowable rules under the Aboriginal and Torres Strait Islander Commission Act for election of regional councils and special rules for election and composition of the Torres Strait Islands regional council had not been tabled as required. The Act required that elections be held under rules in force at the time when elections were called.
As it happened, when the elections were called the time for tabling had not expired. Thus, as the Federal Court found, the elections themselves were valid. Normally instruments required to be tabled are forwarded by the Office of Parliamentary Counsel or the responsible department to the Clerk of the Senate, and are tabled by the Clerk at the commencement of proceedings each sitting day. On occasions failure by departments to forward instruments for tabling has caused considerable legal difficulties.
Such a situation was revealed by a statement by the Minister for Industry, Science and Technology in There have been other significant failures by government departments to forward delegated legislation for tabling within the statutory time limit, resulting in that legislation ceasing to have effect, with serious consequences. It is not essential, however, that regulations be provided for tabling by a minister, or any other member of the government.
Once an instrument has come into effect, it is open to any senator to seek to table it. The regulations were subsequently disallowed. Private senators have tabled regulations on other occasions. On 24 June , an Opposition senator by leave tabled ministerial directions under the Building and Construction Industry Improvement Act , and then gave notice of a motion to disallow the directions, which were subsequently disallowed. On 10 July , standing order 2 was again used to require the tabling by an Opposition senator of the Corporations Amendment Streamlining Future of Financial Advice Regulation when it appeared that the responsible minister may delay tabling.
Chapter 3 of the Legislation Act provides for rule-makers to consult with interested parties before making instruments. Section 19, however, provides that failure to consult does not affect the validity of an instrument. It likewise does not affect parliamentary control, although it may be an issue in parliamentary scrutiny.
Once a legislative instrument has been made, no instrument the same in substance may be made within a defined period unless approved by both Houses by resolution. The defined period ends seven days after the original instrument has been laid before both Houses, or the later of the two days when the instrument is tabled on different days in the Houses; or after the last day on which the instrument could have been so tabled. Similarly, where notice of a motion to disallow a legislative instrument has been given in either House within 15 sitting days of the instrument being laid before that House, another instrument the same in substance may not be made unless the notice has been withdrawn; the instrument is deemed to have been disallowed under section 42 2 ; the motion has been withdrawn or otherwise disposed of; or section 42 3 has applied in relation to the instrument see below.
Similar restrictions also apply to instruments if they are deemed to have been tabled again following a dissolution, expiration or prorogation of the House of Representatives.
These provisions were inserted in the statute in after the Regulations and Ordinances Committee pointed out that the disallowance provisions could be defeated by a succession of instruments repealing and remaking their predecessors.
Where a session of the Parliament ends because the House of Representatives is dissolved or expires, or the Parliament is prorogued, and a notice of motion to disallow has not been withdrawn or otherwise disposed of, the instrument in question is deemed to have been laid before the relevant House on the first sitting day of the new session. If, at the expiration of 15 sitting days after notice of a motion to disallow any instrument, given within 15 sitting days after the instrument has been tabled, the motion has not been resolved, the instrument specified in the motion is deemed to have been disallowed.
This provision ensures that, once notice of a disallowance motion has been given, it must be dealt with in some way, and the instrument under challenge cannot be allowed to continue in force simply because a motion has not been resolved. The provision greatly strengthens the Senate in its oversight of delegated legislation. On 5 March Senator Parer gave notice of motion to disallow all regulations made under the Political Broadcasts and Political Disclosures Act The legal advice was not tabled and with the effluxion of time the regulations were deemed to be disallowed.
Under the previous legislation, a regulation had to be disallowed in its entirety and could not be disallowed in part. While on its face more restricted than the current provisions, this gave rise to issues still relevant under the current legislation. A regulation, in a set of regulations, is one of the numbered series of provisions into which such a set is divided.
The way in which the disallowance provisions applied to other kinds of delegated legislation depended on their form, but generally speaking a numbered item in a piece of legislation could be disallowed. This feature of disallowance procedure was the source of concern as a limitation on the Senate's control over delegated legislation. On 1 May the Senate disallowed export control orders which were self-contained and separately numbered, but which were contained in a single amending order.
The Attorney-General's Department and the Solicitor-General argued that the orders had not been validly disallowed and were still in force, on the basis that the Senate could disallow only the complete amending order.
When the matter was litigated, however, the Federal Court found that the regulations had been disallowed. This question has not been adjudicated. Where two sittings of the House occur on one day, it is considered that this should be regarded as one sitting day; there would be two sittings, but it is not thought that there would be two sitting days. Where one sitting extends over two or more full days, without the intervention of an adjournment, but by the process of suspension of the sitting, the view taken is that, while it may be argued that there has been only one sitting day, it should for safety be assumed that each of those days is a sitting day.
In June the Senate disallowed some regulations under the Customs Act which had already been deemed to be disallowed in the House of Representatives because of the expiration of the statutory time limit for resolving a notice of a disallowance motion given in the House. On the same principle, the Senate disallowed the Legal Services Amendment Solicitor-General Opinions Direction , notwithstanding its repeal before the motion was called on for debate.
Section 42 2 of the Legislation Act provides that instruments are taken to be disallowed if they are not determined in the prescribed time see footnote 45, above, for precedents. Another question which has arisen is whether it is possible for the Senate to pass a motion disallowing instruments which have already been held to be invalid by a court.
On 25 August the Attorney-General's Department submitted an opinion to the President that it was not possible for the Senate to do so. The Attorney-General subsequently took a point of order to this effect in the Senate, but no ruling was made in response to the point of order, and the notice of motion to disallow the regulations in question was withdrawn.
A contrary opinion presented by Senate officers was that, just as invalid instruments may be repealed, they may also be disallowed by a House of the Parliament, either of those actions, repeal or disallowance, having the effect of terminating the existence of the invalid instruments.
Changes to the statutory framework in raised the possibility of the Senate disallowing instruments that had technically been repealed.
The Legislative Instruments Amendment Sunsetting Measures Act inserted a new Part 3 of Chapter 3 of the Legislation Act, Repeal of spent legislative instruments, notifiable instruments and provisions.
These provisions provide, in effect, for the automatic repeal of amending or repealing instruments once they have achieved their effect. This occurs on the day after the last of the provisions commences, or the registration of the instrument, whichever is the later. This creates the possibility that an instrument may have been repealed before it is even tabled but the tabling requirements and disallowance powers of the Houses are not affected.
There are some forms of subordinate legislation with different approval or disallowance procedures. Some instruments require affirmative resolutions of both Houses to bring them into effect, while others do not take effect until the period for disallowance has passed.
Some involve a combination of both methods. Disallowance motions in the Senate may be based on recommendations of the Regulations and Ordinances Committee, which have been, without exception, adopted by the Senate. That committee's practice has also been followed by the Parliamentary Joint Committee on Human Rights which has used the disallowance process to highlight its concerns with particular instruments.
Disallowance motions may be moved other than at the initiation of the committee, and are often motivated by opposition to the policy manifested by the delegated legislation.
Disallowance may also be on the basis that the matter should be addressed by legislation. On 3 February , pursuant to notice, a senator moved a motion to disallow an instrument of delegated legislation guidelines for eligible child care centres , identical in terms to a motion to disallow the same instrument which was negatived on 8 December Even if the terms of a motion are the same as one previously determined, the motion almost invariably has a different effect because of changed circumstances and therefore is not the same motion.
There may also be different grounds for moving the same motion again. This consideration arises particularly in relation to delegated legislation.
A senator may move to disallow an instrument of delegated legislation on policy grounds, and the Regulations and Ordinances Committee may give notice of a motion to disallow the same instrument on grounds related to the committee's criteria of scrutiny; the two motions are regarded as entirely separate, and the determination of one does not affect the other. Moreover, it could be argued that the same question rule could not prevent the operation of the relevant statutory provisions, which provide for disallowance subject only to the statutory time limit for giving notice.
Therefore any disallowance motion may operate and operate automatically if not withdrawn or determined provided only that notice of it is given within the statutory time. Having given a notice for a disallowance motion, a senator cannot be compelled to move the motion before the day for which the notice is given.
While the statutory provisions refer to notice being given of a motion for disallowance, the Senate may disallow tabled regulations without notice if standing orders are suspended to do so. The Senate may also suspend standing orders to enable a notice of motion of disallowance, having effect for that day, to be given and the motion then moved. This occurred on 20 June when a special meeting of the Senate was held, at the request of an absolute majority of senators, in order to have the opportunity to move for disallowance of certain postal and telephone regulations.
Murphy, moved:. That so much of the Standing Orders be suspended as would prevent a Notice of Motion from being now given by Senator Murphy, and having effect for this day, for the disallowance of the Regulations contained in Statutory Rules , Nos. The motion being agreed to, Senator Murphy then gave notice of motion for the disallowance of the regulations.
Then he moved, pursuant to that notice, that the regulations be disallowed, which motion was agreed to. Given that notice is not necessary, this elaborate procedure need not be followed and a motion may be moved by leave. A legislative instrument not laid before each House within 6 sitting days after registration ceases to have effect. In , Senator Spicer, the then Chairman of the Senate Regulations and Ordinances Committee, prepared a memorandum on the subject with the aim of determining the practice which should be followed by the Senate.
His memorandum concluded:. An analysis of the judgments in this case ie. Dignan's case discloses, therefore, that only two of the five Judges committed themselves to the view that the regulations need not be laid before the House before disallowance, but a majority of the Court, including the two Judges referred to, held that the regulations had been effectively laid before the House, by reason of the motion under S. In these circumstances the question whether disallowance will be effective in a case in which a regulation has not been laid before the House at all is still an open one as far as the High Court is concerned.
Any doubt on the matter can be avoided if motions for disallowance are not moved before regulations are laid before the House either by a member of the Executive or by order of the Senate, and this would seem to be ample justification for continuing to follow that procedure.
Although Dignan's case was decided under section 10 of the Acts Interpretation Act , which has since been repealed by the Act of No. It seems to me that the views I have expressed above are as applicable to the new section as to the section which was under consideration in Dignan's case. In support of his contention that notice of disallowance should be given subsequent to the tabling of the regulations and within fifteen sitting days of such tabling, Senator Spicer instanced the speeches of ministers, the submissions of counsel for the government, and the judgment of at least one High Court Judge Dr H.
In Senator Puplick gave notice of a motion to disallow regulations before they were tabled. In a disallowance motion was moved by leave immediately after a minister, in response to a resolution of the Senate, tabled the regulations in question.
Notice of a motion to disallow the same regulations, given before the regulations were tabled, was withdrawn. A motion to disallow or disapprove any regulation or other instrument subject to disallowance or disapproval by either House is placed on the Notice Paper as Business of the Senate. As such, it takes precedence over Government and General Business for the day on which it is set down for consideration.
This procedure further strengthens the Senate in exercising the power of disallowance, and ensures that disallowance motions are given appropriate attention.
The Notice Paper indicates the number of sitting days remaining within which a motion for disallowance must be disposed of before the instrument will be deemed to have been disallowed.
There is a precedent for the consideration of the disallowance of regulations in committee of the whole. In addition, each regulation could be considered seriatim. To be effective, any resolution of the committee of the whole would have to be adopted by the Senate, on report. The following principles apply to amendment of notices of motion for disallowance and amendment of disallowance motions after they are moved:.
On 14 November a motion of disallowance was amended by leave to confine it to a lesser number of regulations. President Lynch, for the reasons submitted, ruled the amendment not in order. This ruling was not correct and has not since been followed.
Notice had been given of a motion for the disallowance of the whole of the regulations, and the notice extended to any of the regulations. A court would probably have held the proposed motion for disallowance, as amended, to be lawful, given the view of Dignan v Australian Steamships Pty Ltd 45 CLR , that the provision as to notice is directory and not imperative.
Thus on 26 May a motion was moved for disallowance of the Legal Practitioners Ordinance of the Australian Capital Territory and an amendment proposed to limit the disallowance to sections 10 and For a case of a disallowance motion amended by leave to restrict its scope, and an amendment moved to expand its scope within the original notice, see Parliamentary Entitlements Amendment Regulations.
Although there is at least one precedent, in , for an amendment to a notice of motion for disallowance to reduce its scope by means of a letter under standing order 77, this practice is not followed because a senator who wishes to support the disallowance of certain regulations, for example, may find that a notice has been amended so that it no longer covers those regulations without the senator being aware of the amendment. This problem potentially arises regardless of whether the time for giving notice has expired.
Therefore, when a senator wishes to amend a notice of motion to reduce its scope, this is done by way of giving notice of intention to amend the notice, similar to the notice of intention under standing order If the time for giving notice has not expired, another senator can then give a fresh notice to cover the particular items the senator wishes to disallow. If the time for giving notice has expired, another senator can take over the notice in so far as it relates to such items.
An example of a notice of motion to disallow extended in scope when the time limit for giving notice had not expired occurred on 28 April when Senator Harradine, pursuant to standing order 77, amended an original notice to extend its scope.
On 24 June , Senator Wright gave notice of her intention to withdraw a notice for disallowance of a full regulation, at the same time giving a fresh notice to disallow a part of it, as she was still within the time limit. Words may be added to a disallowance motion to give reasons for disallowance.
If a senator, having given notice of a motion for disallowance, seeks to withdraw the notice, provision is made for another senator to take over the motion, thus averting the possibility that the Senate could be denied an opportunity of considering disallowance where the time for giving notice has passed.
Standing order 78 provides:. These provisions ensure that the right of any senator to move disallowance is not lost by the withdrawal of a notice. Senators have taken over disallowance motions from the Regulations and Ordinances Committee on numerous occasions. Where a senator wishes to withdraw a notice of motion for disallowance on the last day for resolving the notice and there is not time for notice of intention to withdraw to be given, the notice may be withdrawn by leave, but only after senators present have an opportunity to take over the notice.
A disallowance motion may be brought on early by leave and then withdrawn pursuant to notice of intention. A notice of intention to withdraw a disallowance motion has the effect of postponing a notice which would otherwise be called on earlier to the time of intended withdrawal, unless another senator takes over the notice before that time, in which case it is called on at its due time.
A notice of motion for disallowance which was not regarded as effective because it was given before the regulations concerned were tabled was withdrawn without notice or leave. An unusual resolution was passed on 30 June on the motion of the chair of the Regulations and Ordinances Committee to allow the committee to withdraw from the Notice Paper a notice of motion for the disallowance of certain Industrial Relations Court Rules during the winter long adjournment of the Senate.
As explained above, this provision prohibits the making of delegated legislation the same in substance as legislation which is the subject of an unresolved disallowance motion. Standing order 83 2 provides that a motion not moved when the notice is called on is withdrawn. If, however, a senator declines to move a disallowance motion when the notice is called on in the circumstance, for example, of the Senate rejecting a motion by the senator to postpone it , it is not withdrawn under standing order 83 2 until other senators have an opportunity to take it over and move it in accordance with standing order On the senator declining to move the motion when the notice is called on, the chair designates either a time on the next day of sitting or a time later in the sitting depending on whether it is the last day for resolving the matter by which the notice will be withdrawn if no other senator takes it over.
A senator taking over a disallowance notice in these circumstances is entitled to specify a future day for moving the motion, provided that that day is within the statutory time limit for resolving the notice. Standing order 78 is regarded as applying to any disallowance-type provision even if it does not strictly fall within the language of the standing order.
Obviously, the Equal Protection Clause cannot mean that government is obligated to treat all persons exactly the same--only, at most, that it is obligated to treat people the same if they are "similarly circumstanced. Over recent decades, the Supreme Court has developed a three-tiered approach to analysis under the Equal Protection Clause. Most classifications, as the Railway Express and Kotch cases illustrate, are subject only to rational basis review.
Railway Express upholds a New York City ordinance prohibiting advertising on commercial vehicles--unless the advertisement concerns the vehicle owner's own business. The ordinance, aimed at reducing distractions to drivers, was underinclusive it applied to some, but not all, distracting vehicles , but the Court said the classification was rationally related to a legitimate end.
Kotch was a tougher case, with the Court voting 5 to 4 to uphold a Louisiana law that effectively prevented anyone but friends and relatives of existing riverboat pilots from becoming a pilot. The Court suggested that Louisiana's system might serve the legitimate purpose of promoting "morale and esprit de corps " on the river.
The Court continues to apply an extremely lax standard to most legislative classifications. In Federal Communications Commission v Beach , the Court went so far as to say that economic regulations satisfy the equal protection requirement if "there is any conceivable state of facts that could provide a rational basis for the classification.
Classifications involving suspect classifications such as race, however, are subject to closer scrutiny. A rationale for this closer scrutiny was suggested by the Court in a famous footnote in the case of Carolene Products v.
United States see box at left. Usually, strict scrutiny will result in invalidation of the challenged classification--but not always, as illustrated by Korematsu v. Loving v Virginia produces a more typical result when racial classifications are involved: a unanimous Supreme Court strikes down Virginia's miscegenation law. The Court also applies strict scrutiny to classifications burdening certain fundamental rights. Skinner v Oklahoma considers an Oklahoma law requiring the sterilization of persons convicted of three or more felonies involving moral turpitude "three strikes and you're snipped".
In Justice Douglas's opinion invalidating the law we see the origins of the higher-tier analysis that the Court applies to rights of a "fundamental nature" such as marriage and procreation. Skinner thus casts doubt on the continuing validity of the oft-quoted dictum of Justice Holmes in a case Buck v Bell considering the forced sterilization of certain mental incompetents: "Three generations of imbeciles is enough.
The Court applies a middle-tier scrutiny a standard that tends to produce less predictable results than strict scrutiny or rational basis scrutiny to gender and illegitimacy classifications. Separate pages on this website deal with these issues. Cases Railway Express v.
New York Kotch v. Oklahoma Korematsu v. United States Loving v. Virginia Fred Korematsu " H ere is an attempt to make an otherwise innocent act a crime merely because this prisoner is the son of parents as to whom he had no choice, and belongs to a race from which there is no way to resign.
It is unnecessary to consider now whether legislation which restricts those political processes which can ordinarily be expected to bring about repeal of undesirable legislation, is to be subjected to more exacting judicial scrutiny under the general prohibitions of the Fourteenth Amendment than are most other types of legislation. Nor need we enquire whether similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry.
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