Page 175 - Week 01 - Wednesday, 13 February 1991
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deemed disallowance provision it is not possible for the executive government of the day, controlling the numbers in a chamber, to prevent debate on a piece of subordinate legislation.
The provision that is currently in force in the ACT is the Subordinate Laws Act 1989. I must advise the chamber that there is a typographical error which I had not picked up, in that the principal Act cited in this Bill is the Subordinate Laws Act 1989, of course, not 1984. I will seek to amend that at a later stage.
Dr Kinloch: That is both times, is it?
MR CONNOLLY: That is right. The title should read, "An Act to amend the Subordinate Laws Act 1989", not 1984; and clause 3 should read, "'Principal Act' means the Subordinate Laws Act 1989", not 1984.
In section 6 of the principal Act, this Assembly has a power to actively disallow a regulation, but the deemed disallowance provision is not present. As the Attorney, of course, acknowledges, that is correct. That means that - and this could happen at any time in the future; it could be a member of any party or an independent - should a member feel particularly strongly about a regulation, and should that be a regulation that the government of the day, of whatever party and for whatever reason, does not want to have debated, it is possible that the member would never have the opportunity to get that issue debated in the Assembly.
If we take as a premise that the Assembly is superior to the Executive in relation to delegated legislation and that all delegated legislation must depend upon its being subordinate to this Assembly, that is a very undemocratic principle. This critique of the lack of a deemed disallowance provision was pointed out very clearly by Professor Dennis Pearce in his standard authority on delegated legislation, Delegated Legislation in Australia and New Zealand, published in 1977. He noted that the Commonwealth provision - the deemed disallowance provision, which I am seeking to introduce by this amendment - is not present in the States and that the States have only a positive disallowance provision similar to the provision presently in force in the Territory in section 6 of the Subordinate Laws Act. I would like to read into Hansard Professor Pearce's critique of this position. He says:
There is one significant difference between the State and Commonwealth parliamentary approach. In the case of the federal parliament, if a motion for disallowance is moved and not called on within the time specified for disallowance, the regulations to which the motion relates are to be deemed to have been disallowed. This is not the position in the States or the Northern Territory ... In the States and the Northern Territory the
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