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Wednesday, 19 November 1986
Page: 2451


Senator VIGOR(10.10) —by leave-I move:

That the Bill be now read a second time.

I seek leave to incorporate the second reading speech in Hansard.

Leave granted.

The speech read as follows-

The Disallowance Provisions Amendment Bill 1986 is intended to remedy a number of quite serious flaws in the various statutory schemes which give each House of the Parliament power to disallow delegated legislation. These defects have been identified and drawn to the attention of the Senate by the Regulations and Ordinances Committee in its eightieth report. They are described in full in the report and reference is made to them in the explanatory memorandum to this Bill.

A number of recent examples serve to illustrate the fact that unless these flaws are remedied, and remedied quickly, then this Senate will have inadequate control over Executive law-making. The Senate may even run the risk of lacking any power to control certain delegated legislation which the Senate might wish to disallow but about which it can do nothing.

For example, although part of an ordinance can be disallowed there is no similar power over part of a regulation. Recently, I moved to disallow three regulations in the Australian Broadcasting Tribunal (Inquiries) Regulations. This was the only means open to me to remove provisions within those regulations which I regarded as objectionable. My motion was unsuccessful because other senators who may have shared some of my concerns were reluctant to support disallowance of all of the regulations when only parts of them might have been objectionable.

This inability to disallow part of a regulation also means that the Senate's power of disallowance can, in certain circumstances, be completely neutralised. A Minister may make a long and detailed regulation which is objectionable to the Regulations and Ordinances Committee on grounds of principle, or to the Senate on grounds of policy. When notice of motion of disallowance is given the Minister can make another, identical regulation, repealing and re-enacting the earlier regulation. Since there is no power to disallow part only, a successful disallowance motion cannot separate the repeal from the re-enactment. The Senate can only disallow the whole regulation including the part which repeals the earlier regulation. Disallowance of a repeal has the effect of reviving what was repealed. Thus the earlier objectionable regulation would revive. The Senate could do nothing to prevent such a manoeuvre. It amounts to a fundamental defect in the parliamentary disallowance scheme but it can be overcome quite simply with a power of partial disallowance.

Earlier this year-19 March 1986 and 1 May 1986-this very problem was avoided only by chance. The Minister for Primary Industry (Mr Kerin) made certain prescribed goods orders. Aspects of these were objectionable and notice of motion of disallowance was given. Before the motion came on, the Minister repealed the orders and remade them in a slightly different, but no less objectionable, form. The first notice of motion of disallowance was discharged from the Notice Paper and a new notice was given. Because the provision which repealed the first orders was located in a distinct provision, disallowance of other provisions did not affect that repeal. This was merely good fortune for the Senate. Had the repeal been placed in one of the provisions to which objection was taken, disallowance would have also disallowed the repeal, the first set of objectionable orders would have been revived, and the Senate would have had no power to disallow them.

Another problem relates to the lack of any real obligation on a Minister to table delegated legislation. Even if regulations are deliberately not tabled they are valid for the duration of the 15 sitting days during which they could, and should, have been tabled. On the sixteenth sitting day they can be remade and the cycle recommences. Since the non-tabled regulations will not be void ab initio, there is in effect complete continuity in the law. Section 50 of the Acts Interpretation Act provides that non-tabling does not affect obligations, liabilities, penalties or proceedings incurred and commenced during the 15 day period. The Regulations and Ordinances Committee, in its eightieth report, has reported on a variation of this pro-blem dealing with the World Cup Athletics (Security Arrangements) Ordinance. The Ordinance was made, was in force, and then expired under a sunset clause, 2 days before it was tabled in the Senate and no less than a month after it could reasonably have been tabled for approval.

Finally, disallowance of a repealing regulation will revive that which was repealed and thus prevent there being any gaps in the law. However, disallowance of an ordinance which terminates the operation of some other `law' such as a New South Wales Act of an imperial Act a number of which still apply in the Australian Capital Territory, will not revive the `law' that has been terminated. The Bill is designed to remedy this flaw also and indeed earlier this year the Senate disallowed just such a repealing ordinance. I understand that the Attorney-General advised the Regulations and Ordinances Committee that disallowance would not revive any of the terminated laws although such revival was the intention behind the motion of disallowance.

I think all of these examples show that the problems identified by the Regulations and Ordinances Committee are, or could become, real problems for the senate in exercising its disallowance powers. Disallowance, or the threat of it, is the really effective mechanism in this Chamber to guarantee a large measure of executive and bureaucratic accountability to Parliament. The flaws pointed out by the Regulations and Ordinances Committee have the effect of seriously undermining the quality of that guarantee. My Bill will restore the guarantee to its full value.

My Bill proposes one further refinement designed to ensure that delegated legislation should first be made in draft form and be available to the general public for scrutiny for a period of 60 days before it is made law. All of these measures will improve parliamentary and public control over delegated legislation and I therefore commend this Bill to the Senate. With the concurrence of the Senate I table the explanatory memorandum.

Debate (on motion by Senator Grimes) adjourned.