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Thursday, 27 June 1996
Page: 2318


Senator O'CHEE —Pursuant to notice given on the last day of sitting and on behalf of the Standing Committee on Regulations and Ordinances, I now withdraw business of the Senate notice of motion No. 1 standing in my name for two sitting days after today, for the disallowance of the air navigation regulations amendment as contained in strategy rules No. 342 of 1995, and business of the Senate notice of motion No. 3 standing in my name for six sitting days after today, for the disallowance of the air navigation aircraft engine emissions regulations amendment as contained in statutory rules No. 277 for 1995. I seek leave to make a short statement on native title instruments.

Leave granted.


Senator O'CHEE —On Tuesday in the House of Representatives the Prime Minister (Mr Howard), in answer to a question, advised that an instrument made under the Native Title Act 1993 on 24 December 1993, which was the very day that the act received assent, was never tabled. The Prime Minister advised that the effect of the failure to table could well cast a legal doubt over a large number of acts affecting the Aboriginal community, the pastoral industry and the mining industry. The Prime Minister further advised that a fresh determination would be tabled later in the week. The states and other affected bodies would be consulted on remedial matters needed to, as the Prime Minister expressed it, patch up the legislation.

Both the original and the amending determinations are disallowable instruments for the purposes of section 46A of the Acts Interpretation Act 1901, which requires the determinations to be tabled in both houses within 15 sitting days of making, failing which they cease to have effect. This was the position with the original determination. Then, two years later, the original determination was amended. Although the amending determination was validly tabled, its practical effect would be little or none, because its only substantive provisions purport to amend the invalid earlier determination. It is ironic that the explanatory statement for the second determination advises that its purpose is to address what it terms `problems', `uncertainty', `difficulties' and an `unintentional result' in the original.

This omission was in fact first detected by the staff of the Standing Committee on Regulations and Ordinances who at once alerted the Department of the Prime Minister and Cabinet, who up until then were unaware of the failure to table.

Yesterday, 26 June 1996, a fresh determination was tabled with the object of correcting the situation. This determination was made, gazetted and tabled on the same day, which showed an alacrity not usually noticeable in the actions of the executive relating to delegated legislation. The committee will scrutinise this instrument in the usual way and take any appropriate action. In the meantime, however, it is disappointing that the explanatory statement for the new determination does not acknowledge the actions of the committee, without which this matter would never have come to light.

This example illustrates the need for administrators to be aware of, and to apply, the requirements relating to delegated legislation. In the present case this committee was able to detect the damage only after it had been done. In this context, agencies should familiarise themselves with the annual reports and special reports of the Standing Committee on Regulations and Ordinances, which should enable pitfalls such as the present one to be avoided. I thank the Senate.