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Published online by Cambridge University Press: 24 January 2025
Under the provisions of the Acts Interpretation Act 1901 (Cth) (the Interpretation Act), the Seat of Government (Administration) Act 1910 (Cth) (the Administration Act) and other Acts which contain parallel provisions, either House of the Commonwealth Parliament can disallow virtually any delegated legislative instrument laid on the table. Originally however, there were no disallowance provisions in the 1901 version of the Interpretation Act although, even then, disallowance machinery had been introduced into specific Bills, particularly those of a fiscal nature.
The principle that all federal regulations be subject to disallowance by resolution of either Chamber originated in the Senate and it was eventually achieved by a Senate amendment to the Interpretation Act in 1904. The rationale was simple and compelling – without such a procedure, a Minister who can make regulations obtains a larger power of legislation in that respect than the Senate itself possesses.
1 See generally Walsh, R and Uhr, J, “Parliamentary Disallowance of Delegated Legislation: A History of the Basic Provisions in the Acts Interpretation Act” Legislative Studie Newsletter, No 10, 5 November 1985, 11Google Scholar.
2 (1931) 45 CLR 188, 201-202.
3 Ibid 208.
4 Parliamentary Paper No 116/1970.
5 Kay v Goodwin (1830) 6 Bing 576, 582 per Tindal CJ. Cf Surtees v Ellison (1829) 9 B&C 750, 752 per Lord Tenterden: “It has long been established that, when an Act of Parliament is repealed, it must be considered (except as to transactions past and closed) as if it had never existed”. Cf Edgar, SGG, Craies on Statute Law (1971), 351Google Scholar.
6 (1931) 46 CLR 73, per Gavan Duffy CJ and Starke .I 85; Rich J 87 and Dixon J 105-106. Cf Mangano v Mangano (1974) 4 ALR 303, per Carmichael J 318-319.
7 Supra n 4, para 11. The Report noted two arguments of less force in favour of the principle of non-revival. Firstly, the Parliament may not wish the repealed instrument to revive because it is even more objectionable than that which repeals it. Secondly, in a bicameral parliament a rule of revival would result in one House having a form of absolute power over delegated legislation. However, the Senate's power to veto a Bill or to disallow an instrument are equally absolute powers and consistent with the Constitution. See also the remarks of Carmichael .I in Mangano v Mangano (1974) 4 ALR 303, 319, where he refers to the necessity of revival and notes that: “It seems to be in accordance with reason and common sense that a House of Parliament in disallowing a regulation would seek to restore that which has existed before the regulation, and not create a vacuum on the subject-matter of the regulations”.
8 Supra n 4, para 5.
9 (1943) 67 CLR 347. See in particular Latham CJ 355 and 372 (where he expressly refers to the effects of s 8 of the Act); Rich .I 376 (where reference is made to “the anfractuous action of a branch of the legislature in disallowing from time to time Regulations made pursuant to the Women's Employment Act 1942”); McTiernan .I 393 (where he expressly refers to the effect of s 50 of the Act); and Williams J 408.
10 (1974) 4 ALR 303.
11 Pearce comments “This factor was adverted to by Carmichael J 319 and doubtless influenced the ultimate result of the case”. Pearce, D, Delegated Legislation in Australia and New Zealand (1977)Google Scholar para 543.
12 At this stage His Honour relied on dicta by Dixon J in South Australian Harbor Board v South Australian Gas Co (1934) 51 CLR 485, 498. The relevant Act here provided that regulations shall have the same effect as if contained in part of the Act itself. It was argued that both a revoked and the revoking regulation thereby had the status of an Act. Dixon J said at 498: “ ... the section does not alter the results of revoking a regulation. [The section] is directed to the operation which the regulations shall have while on foot. They will ... be interpreted by reference to the definitions contained in [the relevant Act] but they do not become statutes within the meaning of the Acts Interpretation Act nor are those of its provisions, which are limited to defining the operation of statutes, made applicable.”
However, it has been said that this decision is of doubtful authority since it failed to take into account the State Act equivalent of para. 46(a) - cf Willheim, E, “Note” (1981) 55 ALJ 713Google Scholar.
13 Mangano v Mangano (1974) 4 ALR 303, 322.
14 Ibid 319.
15 (1907) 4 CTR 1617.
16 (1907) 4 CTR 1617, 1638.
17 Mangano v Mangano (1974) 4 ALR 303, 319.
18 Supra n 9. D Pearce, Delegated Legislation, supra n 11, para 544. The note “Divorce Rules Rrvived” (1973) 47 ALI 150, composed hrforc Mangano was decided, foreshadowed the argument used therein thus: “Although s 46(a) gives the Acts Interpretation Act an application to a rule or regulation 'as if ii were an Act', this is rnncerned with the cons1ruetion of rules while they arc on foot (per Dixon .I supra n 12) and does not operate to give a n:pealed set of rules the retrospective status of a ,1atu1e.”
19 Supra n 9 per MeTiernan J.
20 Parliamentary Paper No 116/1970 para 7.
21 Sen Och 1979, Vol S80, 418, in particular Senator Hamer 420-421.
22 The Attorney-General's letter to Senator Hamer is included as Appendix I to the Senate Committee's Sixty-Sixth Report, supra n 4.
23 H Reps Deb 1959, Vol 25, 2375, per Mr Freeth.
24 Ibid 2375-2376.
25 Sen Deb 1981, Vol S90, 2084, per Senator Durack.
26 That is, as Mr Reid had warned in 1904, each House should have as much of a veto over delegated legislation as it has over primary legislation. Walsh and Uhr, supra n I, 13.
27 Supra n 25.
28 These included incorporation by reference, of the Acts Interpretation Act disallowance provisions in future statutory disallowance provisions; and measures to preserve the disallowance powers of each House in the event of a parliamentary dissolution before a notice of motion of disallowance has been dealt with.
29 Supra n 25, 2085.
30 E Willheim, (1981) 55 ALJ 713, 714. During the passage through the Senate of the Australian Capital Territory Supreme Court Bill (No 2) 1971 (Cth), which inserted clause 28(4A), the following interesting exchange occurred: “Senator Greenwood (Attorney-General): An additional fact, which undoubtedly has some relevance for the Senate, is that the rules, if and when they might be disallowed by the Senate, will have the consequence of restoring the pre-existing rules.
Senator Murphy: That is a very satisfactory provision.
Senator Greenwood: I sensed that Senator Murphy, if not other honourable Senators, would appreciate the importance of such a rule.” Sen Deb 1971, Vol S50, 1941-1942.
31 Statute Law (Miscellaneous Amendments) (No 1) Bill, Explanatory Statement, 3.
32 Sen Deb 1982, Vol S93, 1209, per Senator Durack.
33 Sen Deb 1982, Vol S94, 1410.
34 Senator Evans, later Attorney-General, had been a member of the Committee which produced the Sixty-Sixth Report.
35 Supra n 33, 1410.
36 Supra n 31. In his Second Reading Speech the Attorney-General stated: “The principles contained in these amendments have also been applied by this Bill to the tabling of ordinances and other instruments of a legislative character under the following Acts ... Seat of Government (Administration) Act 1910” (Sen Deb 1982, Vol S93, 1209).
37 Commonwealth of Australia Special Ga1ctte, No S5!8, Monday 9 December 1985 in which the Clerk of the Senate gave notification of the disallowance. This was the first disallowance of subordinate legislation by effluxion of time in the history of the Senate.
38 Seventy-sixth Report, Report Upon a Cerlain Ordinance of the Australian Capilal Territory Disallowed by Effluxion of Time, Parliamentary Paper No 507/1985.
39 AGPS Canberra 1974.
40 Supra n 39, para 5.
41 Supra n 39, para 9.
42 Ibid.
43 Journals of the Senate, No 53, 11 October 1985, 509-510.
44 Supra n 38, para 5.
45 Ibid. The Committee was obviously concerned about the identification and scheduling of Acts, the repeal of which would affect future rights since the combined effects of paragraph 38(c) and sub-ss 43(3) and 43(7) of the Interpretation Ordinance I 967 (ACT) were to protect rights accrued under the repealed NSW Acts.
46 Supra n 38, para 6.
47 Sub-section 12(4) of the Seat of Government (Administration) Act 1910 (Cth) makes it possible to disallow a “part” of an ordinance. For the purpose of ordinances, a part is defined in s 39B of the Interpretation Ordinance 1967 (ACT) as including “a reference to any provision of, or words, [or] figures, ... in, an Ordinance”. Thus, the name of an Act appearing in a schedule listing the repealed NSW Acts would be a “part” of the ordinance and therefore capable of being identified and disallowed by means of procedural motion.
48 Sen Deb 28 November 1985, 2543.
49 ACT Law Reform Commission Report, supra n 39. Senator Vigor noted that on 28 February 1973 Australia ratified !LO Convention No 87 Freedom of Association and Protection of the Right to Organise, 1948 and the !LO Convention No 98 Right to Organise and to Collective Bargaining. 1949. Supra n 48, 2544.
50 Report of the ACT House of Assembly Standing Committee on Finance and Legislation. 15 March 1985, incorporated by Senator Vigor in Sen Deb supra n 48, 2546.
51 Murray, DB, “When Is A Repeal Not A Repeal?” (1953) 16 MLR 50, 53CrossRefGoogle Scholar: “ ... the 'cease to have effect' provision may not be quite the same thing as a straight repeal ... “. By virtue of a 1979 amendment to the Interpretation Ordinance 1967 (ACTI, sub-section 43(7) stated that an ordinance providing that a continued State law “shall cease to apply or shall cease to he in force ... shall be deemed to repeal that law ... “. It was only in 1984 that the Acts Interpretation Amendment Act inserted a new section SA into the Interpretation Act providing thal “A reference in section 7 or 8 to the repeal of an Act ... includes a reference to - (a) a repeal effected by implfcation; (b) the abrogation or limitation of the effect of the Act ... “.
52 Supra n 4, para 14.
53 (1978) 38 FLR 402, 407.
54 (1981) 40 ALR 525, 529.
55 (1970) 125 CLR 95, 110.
56 The Report describes at paras. 12-13 a legislative proposal which the Attorney-General's Department had devised (i) for express re-enactment by name of each NSW Act known to have been terminated by the Application Ordinance and (ii) their simultaneous express repeal by name in such a way as to make possible the parliamentary disallowance of any particular objectionable repeal. The Attorney-General was not persuaded to implement this proposal in order to avoid disallowance of the ordinance. The advice he had received was that disallowance would not result in revival of any repealed Act and therefore there would not be any serious uncertainty in the ACT law. Amendments made by the Application Ordinance to those NSW Acts expressly listed in the ordinance as the surviving residue of applicable NSW Acts, were however, inevitably removed by the effects of the disallowance.
57 Supra n 38, para 11.
58 Supra n 38, para 2l(a) and (b). The implementation of this recommendation was a pressing matter because the use of ordinances to change the criminal law of the ACT which is embodied in the Crimes Act 1900 (NSW) could, in the absence of legislation, deprive the Parliament of any effective control over changes to such fundamental laws. Resolution of the problem was also necessary to avoid repetition of uncertainty if disallowance action was taken against the implementation of any particular aspect of the Law Reform Commission Report on Imperial Acts in Force in the Australian Capital Territory. (Parliamentary Paper No 63/1973) This Report recommended the repeal of certain Imperial Acts as they applied in the ACT. The Imperial Acts (Substituted Provisions) Ordinance 1986 was made on 18 June 1985 ceasing certain Imperial Acts in force but also substituting other provisions for them. If the case against revival, based on sub-s 6(1) of the Acceptance Act, is sound, then the Imperial Acts Ordinance, while not itself expressly or impliedly repealing the old Acts, has nevertheless triggered their repeal under the Acceptance Act. That repeal would be beyond the recall of a common law revival. As noted above this argument may be flawed and a court may not be convinced that Parliament intended to neutralise its disallowance power.
In its Eightieth Report (Parliamentary Paper No 24 I /1986) the Senate Committee reported at page 108 that the Attorney-General had given it a written undertaking that if the Senate objected to provisions of the Perpetuities and Accumulations Ordinance 1985 (ACT) or the Limitation Ordinance 1985 (ACT) which terminated the operation of certain Imperial and NSW Acts, and
moved to disallow the terminations, he would overcome the apparent defect in the Administration Act and expressly re-enact the provision which the Senate wished, through its disallowance motion, to preserve. It is likely that a similar undertaking will be given regarding any Imperial Acts Repeal Ordinance.
59 Supra n 38. The recommendation was implemented by amendments to the Administration Act in the Statute Law (Miscellaneous Provisions) (No 2) Act I986.
60 Department of the Senate, Procedural Information Bulletin, No 14, 12 May 1986.
61 (1985) 61 ALR 417.
62 Note however, that a repealed instrument, revived by disallowance “as if the repealing regulations had not been made” (subsection 48(7), Acts Interpretation Act) could itself be disallowed, provided a notice of motion of disallowance could be given not more than 15 sitting days after the original tabling of that revived instrument (subsection 48(4)). But, if a notice of motion of disallowance is given on the 15th sitting day after an objectionable instrument is tabled, and, before the motion is debated, that instrument is repealed and re-enacted on the 16th or a later day, the subsequent disallowance of the repealing instrument would revive the first instrument on a day which would be outside the 15 sitting day period within which another notice of motion of disallowance should be given under subsection 48(4). The Senate would have to ensure that the first notice of motion of disallowance was not discharged from the Notice Paper merely because the repealing and re-enacting regulation had been made and tabled. Would a court reviewing the legality of a disallowance look beyond the fact that a notice of motion of disallowance remained on the notice paper notwithstanding that the instrument to which it related was repealed?