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House of Representatives                                Ch 10                                                 p 404

Approval

The Parliament’s control of delegated legislation is usually exercised through the disallowance procedure. An alternative means of parliamentary control is to provide that specific delegated legislation may come into force only with the explicit approval, by affirmative resolution, of both Houses. Although not common, this practice has been used from time to time in recent years, especially in respect of certain types of legislative instrument variously described as statements, charters, agreements, declarations, guidelines, etc. ¹

An Act may provide for the Houses to be able to amend the instrument in question during the process of approving it. If one House amends such an instrument the other House is informed by message, and when the message is considered, the motion put, for example, ‘That the House approves the form of agreement   . . .   as amended by the Senate and conveyed in Senate Message No . . . . ’. The motion can be amended to amend the amendments or make further amendments. ²

The conditions for approval vary and depend on the requirement of the particular Act. The requirement may be simply that an instrument must be approved by both Houses to come into effect. ³ A more complicated requirement may be, for example, that an instrument comes into effect after 15 sitting days of being tabled in both Houses, unless a notice of motion to amend the instrument is given in either House, in which case the instrument, whether or not amended, must be approved by both Houses. ⁴

While notices of motions of approval moved by Ministers are taken as government business, motions of amendment, as in the above example, would in the normal course be moved by opposition Members and be subject to the usual private Members’ business procedures. ⁵

Approval provisions have sometimes been inserted into bills in the Senate when it has been thought that particular instruments merited special control procedures. ⁶ However, there may on occasion be another reason for their use—the approval of regulations by both Houses at the time of presentation does offer the possibility of a more rapid and certain outcome than waiting the required period for potential disallowance. An Act has provided for either disallowance or approval in respect of the same regulations—the disallowance procedures ceasing to apply in the case of the regulations being approved. ⁷

Unless provided in the enabling Act (or other legislation) the disallowance procedures of the Legislative Instruments Act do not apply to legislative instruments that, in accordance with the provisions of the enabling legislation, do not commence unless they are approved by either or both Houses of Parliament. ⁸

VP 1990-92/515-6, 1290-1.

VP 1990-92/472-5.

See , for example, amendments moved at VP 1987-89/1622-3.

‘Form of agreement’ under the Aged or Disabled Persons Care Act 1954 , ss. 10DA, 10DB.

VP 1990-92/537-9 (amendment moved), 595 (order of day discharged by mover).

Odgers , 11th edn, p. 329.

Telecommunications Act 1991 , ss. 408-9— see S. Deb. (14.11.91) 3253-4.

Legislative Instruments Act 2003 , s. 44