Opinion Number. 1694

Subject

DISALLOWANCE OF REGULATIONS WHETHER NECESSARY FOR REGULATIONS TO BE LAID ON TABLE OF SENATE BEFORE MEMBER OF SENATE CAN MOVE FOR DISALLOWANCE

Key Legislation

ACTS INTERPRETATION ACT 1901 ss 10, 48: SENATE STANDING ORDER 364

Date
Client
The Clerk of the Senate

I refer to your memorandum dated 24th March, 1942, requesting advice on the question whether it is necessary for regulations to be laid on the table of the Senate before any member of the Senate can move for their disallowance.

In 1931 in the case of Dignan v. Australian Steamships Pty. Ltd. (45 C.L.R. 188) the High Court by a majority (Rich, Starke and Dixon J.J. (Gavan Duffy, C.J. and Evatt J. dissenting)) held that it was not a condition essential to the validity or operation of a resolution of disallowance that the regulations should first be laid before the House.

The decision was given with respect to the provisions of section 10 of the Acts Interpretation Act 1904–1930. That section has now been replaced by section 48 of the Acts Interpretation Act 1901–1941, but the provisions of that section relating to disallowance of regulations are substantially the same as those of section 10 of the old Act.

In my view, therefore, the decision in Dignan’s case should still be regarded as authority for the proposition above stated.

In view of this decision, it does not appear to be necessary to answer the question set out in the third last paragraph of your memorandum. There are, however, dicta in Dignan’s case which indicate that the tabling of a regulation in accordance with Standing Order 364 of the Senate would be a tabling within the meaning of section 48 of the Acts Interpretation Act 1901–1941.

[Vol. 34, p. 373]