Senate Inquiry, Hearing Program 4th Nov 2011

[4dogs]

Disallowance

Well PNM,

As far as I know, disallowance means "all in or all out" - they don't disallow "certain parts".

that isn't correct. A legislative instrument can be disallowed in whole or in part. The Legislative Instruments Act 2003 provides the answer:

42 Disallowance of legislative instruments

(1) If:

(a) notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and

(b) within 15 sitting days of that House after the giving of that notice, the House passes a resolution, in pursuance of the motion, disallowing the instrument or provision;

the instrument or provision so disallowed then ceases to have effect.

(2) If:

(a) notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and

(b) at the end of 15 sitting days of that House after the giving of that notice of motion:

(i) the notice has not been withdrawn and the motion has not been called on; or

(ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;

the instrument or provision specified in the motion is then taken to have been disallowed and ceases at that time to have effect.

(3) If:

(a) notice of a motion to disallow a legislative instrument or a provision of a legislative instrument is given in a House of the Parliament within 15 sitting days of that House after a copy of the instrument was laid before that House; and

(b) before the end of 15 sitting days of that House after the giving of that notice of motion, the House of Representatives is dissolved or expires, or the Parliament is prorogued; and

(c) at the time of the dissolution, expiry or prorogation, as the case may be:

(i) the notice has not been withdrawn and the motion has not been called on; or

(ii) the motion has been called on, moved and (where relevant) seconded and has not been withdrawn or otherwise disposed of;

the legislative instrument is taken, for the purposes of subsections (1) and (2), to have been laid before the first‑mentioned House on the first sitting day of that first‑mentioned House after the dissolution, expiry or prorogation, as the case may be.

I'm unsure what Kharon had in mind when he/she used the term 'grounded' - but perhaps a more appropriate analogy might be 'out on parole/bail/suspended sentence'. The legislative instrument has been current law since 30 April 2013 and will continue to be the law until disallowed either actively (by debate and vote) or passively (by the effluxion of time without resolution).

The cute thing is that the Disallowance Motion was moved in the Senate, where a change of Government will not have any significant effect in the first 9 months of the 44th Parliament - in fact, it is likely that the ALP and the Greens would hold the balance of power even if there is a Coalition landslide in the House of Reps. Makes for some interesting dynamics if an incoming Government tries to force the debate in time to avoid passive disallowance

I'm sure that there will be a few people tracking the timing of this little time-bomb...

Stay Alive,