Disallowing delegated legislation

In the last post, we defined delegated legislation as legislation made by the executive under the authority of the Parliament. It includes statutory rules, regulations, by-laws, ordinances, orders in council or various other ‘instruments’. We also explained that the most powerful tool against executive government over-reach regarding delegated legislation is the power for either House to disallow a statutory rule. So, how does this happen…?

Well, every Tuesday of a sitting week (or the first Tuesday of every month when not sitting), the Clerk of the Legislative Council  publishes the Statutory Rules and Instruments Paper which details the following:

📃 the statutory rules and instruments that are subject to disallowance,

📃 the date of their tabling in the House (where this has occurred), and

📃 the time within which notice of their disallowance may be given.

How is delegated legislation disallowed?

For those statutory rules that are subject to disallowance, either House of the Parliament may pass a resolution to disallow the statutory rule. A statutory rule can be disallowed in part as well as in whole. On the passing of a disallowance motion the statutory rule in question ‘shall cease to have effect’.

How often is delegated legislation disallowed?

There are only a handful of instances where disallowance motions have been agreed to. Between 1995 and 2018, 140 disallowance motions were moved and of these, just 17 were agreed to by the Council.

The Regulation Committee

There are currently two disallowance motions on the Notice Paper ― the Liquor Amendment (Music Festivals) Regulation 2019, and the Gaming and Liquor Administration Amendment (Music Festivals) Regulation 2019.

However, a few weeks ago, the House agreed to send these two regulations to the Regulation Committee for an inquiry.

So what happens to these motions given the establishment of an inquiry?

Well, under the rules establishing the Regulation Committee a motion for disallowance can’t be debated until the committee completes its report. So the notice will remain on the Notice Paper until the tabling of the committee report, after which the disallowance motions will then be considered.