Page 1054 - Week 04 - Wednesday, 20 March 1991
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procedural safeguard. No State parliament has seen fit to do this, although this was a major criticism from Professor Pearce in his major textbook on subordinate legislation some 10 or 12 years ago. It would be an important breakthrough for the Territory if this Bill could be supported.
Mr Speaker, the central provision in this Bill remains the amendment to section 7A of the Subordinate Laws Act to provide for the deemed disallowance. That remains effectively as it was in my original Bill. That is the heart of the Bill and it remains. A number of other amendments have been included in this Bill, I must say, at the suggestion of Mr Hunt. I have been happy to include those minor housekeeping-type amendments.
Mr Collaery: David Hunt.
MR CONNOLLY: David Hunt QC. I am happy to include those. The most important of those is to bring the terminology of the Subordinate Laws Act into line with the terminology of the Commonwealth Acts Interpretation Act on which it is modelled. The important change is to substitute, in all cases, that the effect of disallowance, be it deemed disallowance or actual disallowance by resolution, is that the disallowed provision ceases to have effect at the moment of disallowance.
The Act, as it presently stands, says that the consequence of a disallowance is that the subordinate law shall be taken to be void and of no effect. It may seem but a difference in wording. But the problem is that in administrative law the concept of a law being void can imply, and usually would imply, that the law is void ab initio; that is, that it has always been void and was never of effect.
I understand that it was never the intention when the Subordinate Laws Act was passed that that be the effect and that this was pointed out at the time by the Senate scrutiny committee that looked at what were then themselves subordinate laws, that is, ACT ordinances. It was pointed out at the time that the use of the term "void" could cause confusion if it were ever argued that a law that had been disallowed was void ab initio.
The consequence of that would be that, if a Minister acted in reliance of the regulation, the Minister's acts could be held to be without lawful authority and there could be potentially quite difficult court proceedings. The Territory and the Territory Executive of the day, or public servants acting under the authority of the regulation as it stood, could find their acts under challenge. So we have taken the opportunity, throughout the legislation, to change the wording from "shall be taken to be void and of no effect" to "ceases to have effect". That does not change the effect and intention of the law as it originally
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