An Act for the Interpretation of Acts of
Parliament and for Shortening their Language
Part 1—Preliminary
1 Short title
This Act may be cited
as the Acts Interpretation Act 1901.
1A Simplified outline
The following is a
simplified outline of this Act:
Overview
This Act is like a
dictionary and manual to use when reading and interpreting Commonwealth Acts
and instruments made under Commonwealth Acts.
The definitions and
many of the interpretation rules are aimed at making Commonwealth legislation
shorter, less complex and more consistent in operation.
A provision of this
Act is subject to a contrary intention in other Commonwealth legislation.
Structure
Part 1 provides
that this Act applies to all Acts. This Act also applies to legislative
instruments and other instruments made under an Act (see subsection 13(1)
of the Legislative Instruments Act 2003 and subsection 46(1) of
this Act).
Part 2 contains
definitions that apply across all Commonwealth legislation (for example, Australian
citizen, business day, document and month).
Part 3 deals with the commencement of Commonwealth Acts. For
example, section 4 allows certain powers to be exercised (like the making
of appointments) between the enactment and commencement of an Act.
Part 4 deals
with the amendment, repeal and expiry of Commonwealth legislation. For example,
section 7 provides that the repeal of an Act does not affect any rights
accrued under the Act, or any legal proceedings instituted, before the repeal.
Part 5 contains
various rules for interpreting Commonwealth legislation, including:
(a) section 15A
(about interpreting an Act subject to the Constitution); and
(b) section 15AA
(which provides for interpreting an Act in a way that best achieves the purpose
or object of the Act); and
(c) section 15AB
(about using material that is not part of an Act (like explanatory memorandums
and second reading speeches) in interpreting an Act); and
(d) sections 19
to 19C (which deal with references to Ministers, Departments and Secretaries of
Departments and with administrative changes in the operation of the
Commonwealth Government).
Part 6 deals
with the service of documents on persons.
Part 7 contains
rules about exercising powers and performing functions and duties under
Commonwealth legislation, including:
(a) subsection 33(3)
(which provides that a power to make an instrument includes the power to vary
or revoke the instrument); and
(b) section 33A (about acting appointments);
and
(c) sections 34AA,
34AB and 34A (about delegating powers, functions and duties).
Part 8 deals
with the calculation of distance, time and age.
Part 9 deals
with the citation of Acts.
Part 10 deals
with non‑legislative instruments. For example, it provides that this Act
applies to those instruments and that expressions in those instruments have the
same meaning as in the enabling legislation.
Part 11 contains
a regulation‑making power.
2 Application of Act
(1) This Act applies to all
Acts (including this Act).
Note: This Act also applies to
legislative instruments and other instruments made under an Act: see subsection 13(1)
of the Legislative Instruments Act 2003 and subsection 46(1) of
this Act.
(2) However, the application
of this Act or a provision of this Act to an Act or a provision of an Act is
subject to a contrary intention.
2A Binding the Crown
This Act binds the
Crown in each of its capacities.
Part 2—Definitions
2B Definitions
In any Act:
acting SES employee has the same meaning as in the Public Service Act 1999.
affidavit includes affirmation, declaration and promise.
appoint: see section 33AA.
APS employee has the same meaning as in the Public Service Act 1999.
Australia means the Commonwealth of Australia and, when used in a
geographical sense, includes the Territory of Christmas Island and the
Territory of Cocos (Keeling) Islands, but does not include any other external
Territory.
Note: See also section 15B.
Australian citizen has the same meaning as in the Australian Citizenship Act 2007.
Australian Privacy Principle has the same meaning as in the Privacy Act 1988.
Australian Standard: see section 2L.
business day means a day that is not a Saturday, a Sunday or a public holiday in
the place concerned.
calendar month means one of the 12 months of the year.
calendar year means a period of 12 months starting on 1 January.
charitable has the meaning given by Part 2 of the Charities Act 2013.
charitable purpose has the meaning given by Part 3 of the Charities Act 2013.
charity has the meaning given by Part 2 of the Charities Act 2013.
commencement, in relation to an Act or a provision of an Act, means the time at
which the Act or provision comes into operation.
Note: See also section 3.
Commonwealth
means the Commonwealth of Australia and, when
used in a geographical sense, includes the Territory of Christmas Island and
the Territory of Cocos (Keeling) Islands, but does not include any other
external Territory.
Note: See also section 15B.
Consolidated Revenue Fund means the Consolidated Revenue Fund referred to in section 81
of the Constitution.
Constitution means the Constitution of the Commonwealth.
contiguous zone has the same meaning as in the Seas and Submerged Lands Act 1973.
continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973.
contravene includes fail to comply with.
court exercising federal
jurisdiction means any court when exercising
federal jurisdiction, and includes a federal court.
court of summary jurisdiction means any justice of the peace, or magistrate of a State or
Territory, sitting as a court of summary jurisdiction.
de facto partner: see section 2D.
document means any record of information, and includes:
(a) anything on which
there is writing; and
(b) anything on which
there are marks, figures, symbols or perforations having a meaning for persons
qualified to interpret them; and
(c) anything from
which sounds, images or writings can be reproduced with or without the aid of
anything else; and
(d) a map, plan,
drawing or photograph.
estate includes any estate, interest, charge, right, title, claim demand,
lien or encumbrance at law or in equity.
exclusive economic zone has the same meaning as in the Seas and Submerged Lands Act 1973.
Executive
Council means the Federal Executive Council.
external Territory means a Territory, other than an internal Territory, where an Act
makes provision for the government of the Territory as a Territory.
Note: See also section 15B.
federal court means the High Court or any court created by the Parliament.
financial year means a period of 12 months starting on 1 July.
foreign country means any country (whether or not an independent sovereign state)
outside Australia and the external Territories.
Gazette means the Commonwealth of Australia Gazette.
Government Printer includes any person printing for the Government of the
Commonwealth.
Note: See also section 17A.
Governor of a State: see section 16B.
Governor‑General: see section 16A.
High Court means the High Court of Australia.
individual means a natural person.
insolvent under administration has the same meaning as in the Corporations Act 2001.
internal Territory means the Australian Capital Territory, the Northern Territory or
the Jervis Bay Territory.
Jervis Bay Territory means the Territory referred to in the Jervis Bay Territory
Acceptance Act 1915.
justice of the peace includes a justice of the peace for a State or part of a State or
for a Territory.
land
includes messuages, tenements and hereditaments, corporeal and incorporeal, of
any tenure or description, whatever may be the estate or interest in them.
law of the Commonwealth: see section 2H.
Magistrate: see subsection 16C(2).
Minister or Minister of State means one of the Ministers of
State for the Commonwealth.
Note: See also section 19.
modifications, in relation to a law, includes additions, omissions and
substitutions.
month: see section 2G.
Northern Territory means the Northern Territory of Australia.
oath
includes affirmation, declaration and promise.
Parliament means the Parliament of the Commonwealth.
penalty unit, including in relation to a civil penalty provision, has the
meaning given by section 4AA of the Crimes Act 1914.
person: see section 2C.
prescribed means prescribed by the Act or by regulations under the Act.
Proclamation means Proclamation by the Governor‑General that is published in the
Gazette or entered in the Federal Register of Legislative Instruments
established under the Legislative Instruments Act 2003.
record includes information stored or recorded by means of a computer.
regulations means regulations under the Act.
rules of court: see section 2K.
seat of Government means the seat of Government of the Commonwealth.
SES employee has the same meaning as in the Public Service Act 1999.
Sovereign: see section 16.
Standards Australia means Standards Australia Limited (ACN 087 326 690).
State means a State of the Commonwealth.
statutory declaration means a declaration made because of any Act authorising a
declaration to be made otherwise than in the course of a judicial proceeding.
Stipendiary Magistrate: see subsection 16C(1).
swear includes affirm, declare and promise.
territorial sea has the same meaning as in the Seas and Submerged Lands Act 1973.
Territory, Territory of the Commonwealth, Territory under
the authority of the Commonwealth or Territory of Australia
means a Territory referred to in section 122 of the Constitution.
United Kingdom means the United Kingdom of Great Britain and Northern Ireland.
writing includes any mode of representing or reproducing words, figures,
drawings or symbols in a visible form.
2C References to persons
(1) In any Act, expressions
used to denote persons generally (such as “person”, “party”, “someone”,
“anyone”, “no‑one”, “one”, “another” and “whoever”), include a body politic or
corporate as well as an individual.
(2) Express references in an
Act to companies, corporations or bodies corporate do not imply that
expressions in that Act, of the kind mentioned in subsection (1), do not
include companies, corporations or bodies corporate.
2D References to de facto partners
For the purposes of a
provision of an Act that is a provision in which de facto partner
has the meaning given by this Act, a person is the de facto partner
of another person (whether of the same sex or a different sex) if:
(a) the person is in
a registered relationship with the other person under section 2E; or
(b) the person is in
a de facto relationship with the other person under section 2F.
2E Registered relationships
For the purposes of
paragraph 2D(a), a person is in a registered relationship with
another person if the relationship between the persons is registered under a prescribed
law of a State or Territory as a prescribed kind of relationship.
2F De facto relationships
(1) For the purposes of
paragraph 2D(b), a person is in a de facto relationship
with another person if the persons:
(a) are not legally
married to each other; and
(b) are not related
by family (see subsection (6)); and
(c) have a
relationship as a couple living together on a genuine domestic basis.
(2) In determining for the
purposes of paragraph (1)(c) whether 2 persons have a relationship as a
couple, all the circumstances of their relationship are to be taken into
account, including any or all of the following circumstances:
(a) the duration of
the relationship;
(b) the nature and
extent of their common residence;
(c) whether a sexual
relationship exists;
(d) the degree of
financial dependence or interdependence, and any arrangements for financial
support, between them;
(e) the ownership,
use and acquisition of their property;
(f) the degree of
mutual commitment to a shared life;
(g) the care and
support of children;
(h) the reputation
and public aspects of the relationship.
(3) No particular finding in
relation to any circumstance mentioned in subsection (2) is necessary in
determining whether 2 persons have a relationship as a couple for the purposes
of paragraph (1)(c).
(4) For
the purposes of paragraph (1)(c), the persons are taken to be living
together on a genuine domestic basis if the persons are not living together on
a genuine domestic basis only because of:
(a) a
temporary absence from each other; or
(b) illness or
infirmity of either or both of them.
(5) For the purposes of subsection (1),
a de facto relationship can exist even if one of the persons is
legally married to someone else or is in a registered relationship (within the
meaning of section 2E) with someone else or is in another de facto relationship.
(6) For the purposes of paragraph (1)(b),
2 persons are related by family if:
(a) one is the child
(including an adopted child) of the other; or
(b) one is another
descendant of the other (even if the relationship between them is traced
through an adoptive parent); or
(c) they have a
parent in common (who may be an adoptive parent of either or both of them).
For this purpose, disregard whether an
adoption is declared void or has ceased to have effect.
(7) For the purposes of subsection (6),
adopted means adopted under the law of any place (whether in or
out of Australia) relating to the adoption of children.
2G Months
(1) In any Act, month
means a period:
(a) starting at the
start of any day of one of the calendar months; and
(b) ending:
(i) immediately
before the start of the corresponding day of the next calendar month; or
(ii) if
there is no such day—at the end of the next calendar month.
Example 1: A month starting on 15 December
in a year ends immediately before 15 January in the next year.
Example 2: A month starting on 31 August
in a year ends at the end of September in that year (because September is the
calendar month coming after August and does not have 31 days).
(2) In any Act, a reference
to a period of 2 or more months is a reference to a period:
(a) starting at the
start of a day of one of the calendar months (the starting month);
and
(b) ending:
(i) immediately
before the start of the corresponding day of the calendar month that is that
number of calendar months after the starting month; or
(ii) if
there is no such day—at the end of the calendar month that is that number of
calendar months after the starting month.
Example 1: A reference to 6 months starting
on 15 December in a year is a reference to a period starting on that day
and ending immediately before 15 June in the next year.
Example 2: A reference to 6 months starting
on 31 October in a year is a reference to a period starting on that day
and ending at the end of April in the next year (because April is the calendar
month coming sixth after October and does not have 31 days).
2H References to law of the Commonwealth
In any Act, a reference
to the law of the Commonwealth, or to a law of the Commonwealth, does not
include, and is taken never to have included, a reference to a law in force in
a Territory so far as the law is so in force because of an Act providing for
the acceptance, administration or government of that Territory.
2J Documents commencing proceedings
A reference in a
provision of an Act to any one or more of the following in connection with
court proceedings:
(a) a summons;
(b) an information;
(c) a claim;
(d) a complaint;
(e) a declaration;
is taken to include a reference to any
document through which proceedings may be instituted in a court.
Note: An example of such a document
is a court attendance notice under the Criminal Procedure Act 1986 of
New South Wales.
2K Rules of court
(1) In any Act, rules
of court, in relation to any court, means rules made by
the authority having for the time being power to make rules or orders
regulating the practice and procedure of such court.
(2) The power of the
authority to make rules of court includes a power to make rules of court for
the purpose of any Act which directs or authorises anything to be done by rules
of court.
2L References to Australian
Standards
In any Act, a reference
consisting of the words “Australian Standard” followed by the letters “AS” and
a number is a reference to the standard so numbered that is published by, or on
behalf of, Standards Australia.
Part 3—Commencement of
Acts
3 When Acts come into operation
If an Act or a
provision of an Act is expressed to come into operation on a particular day
(whether the expression “come into operation” or “commence” is used), it shall
come into operation immediately on the expiration of the last preceding day.
3A Commencement of Acts
(1) This section does not
apply to an Act so far as it provides for its commencement.
(2) An Act (other than an
Act to alter the Constitution) commences on the 28th day after the day on which
that Act receives the Royal Assent.
(3) An Act to alter the
Constitution commences on the day on which that Act receives the Royal Assent.
4 Exercise of powers between
enactment and commencement of Act
Application of section
(1) This section applies if
an Act is enacted and at a time (the start time) after its
enactment the Act will confer power to make an appointment, or to make an
instrument of a legislative or administrative character (including rules,
regulations or by‑laws), because:
(a) the Act will
commence at the start time; or
(b) the Act will be
amended at the start time by an Act that has been enacted and that commences at
that time.
Exercise of power before start time
(2) The power may be
exercised before the start time as if the relevant commencement had occurred.
(3) Anything
may be done before the start time for the purpose of enabling the exercise of
the power, or of bringing the appointment or instrument into effect, as if the
relevant commencement had occurred.
(4) The exercise of a power
under subsection (2) does not confer a power or right or impose an
obligation on a person before the relevant commencement except so far as is
necessary or convenient for the purpose of:
(a) bringing the
appointment or instrument into effect; or
(b) bringing the Act
conferring power into operation; or
(c) making the Act
conferring power fully effective at or after the start time.
(5) An appointment, or a
provision of an instrument, made under subsection (2) takes effect at the
start time or a later time specified in the appointment or instrument.
One instrument may rely on subsection (2)
and existing power
(6) To avoid doubt, a single
instrument may be made before the start time partly under subsection (2)
and partly under a power already conferred by an Act.
Extended application to provisions of
an Act
(7) Subsections (1) to
(6) also apply in relation to a provision of an Act in the same way as they
apply in relation to an Act.
6 Evidence of date of assent
The date appearing on
the copy of an Act printed by the Government Printer, and purporting to be the
date on which the Governor‑General assented thereto, or made known the Sovereign’s
assent, shall be evidence that such date was the date on which the Governor‑General
so assented or made known the Sovereign’s assent, and shall be judicially
noticed.
Part 4—Amendment, repeal
and expiry of Acts
7 Effect of repeal or amendment
of Act
No revival of other Act or part
(1) The repeal of an Act, or
of a part of an Act, that repealed an Act (the old Act) or part
(the old part) of an Act does not revive the old Act or old part,
unless express provision is made for the revival.
No effect on previous operation of Act
or part
(2) If an Act, or an
instrument under an Act, repeals or amends an Act (the affected Act)
or a part of an Act, then the repeal or amendment does not:
(a) revive anything
not in force or existing at the time at which the repeal or amendment takes
effect; or
(b) affect the
previous operation of the affected Act or part (including any amendment made by
the affected Act or part), or anything duly done or suffered under the affected
Act or part; or
(c) affect any right,
privilege, obligation or liability acquired, accrued or incurred under the
affected Act or part; or
(d) affect any
penalty, forfeiture or punishment incurred in respect of any offence committed
against the affected Act or part; or
(e) affect any
investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment.
Any such investigation, legal proceeding
or remedy may be instituted, continued or enforced, and any such penalty,
forfeiture or punishment may be imposed, as if the affected Act or part had not
been repealed or amended.
Note: The Act that makes the repeal
or amendment, or provides for the instrument to make the repeal or amendment,
may be different from, or the same as, the affected Act or the Act containing
the part repealed or amended.
Interpretation
(3) A reference in subsection (1)
or (2) to the repeal or amendment of an Act or of a part of an Act includes a
reference to:
(a) a repeal or
amendment effected by implication; and
(b) the expiry,
lapsing or cessation of effect of the Act or part; and
(c) the abrogation or
limitation of the effect of the Act or part; and
(d) the exclusion of
the application of the Act or part to any person, subject‑matter or
circumstance.
(4) A reference in this
section to a part of an Act includes a reference to any provision of, or words,
figures, drawings or symbols in, an Act.
10 References to amended or re‑enacted
Acts
Where an Act contains a
reference to a short title that is or was provided by law for the citation of
another Act as originally enacted, or of another Act as amended, then:
(a) the reference
shall be construed as a reference to that other Act as originally enacted and
as amended from time to time; and
(b) where that other
Act has been repealed and re‑enacted, with or without modifications, the
reference shall be construed as including a reference to the re‑enacted Act as
originally enacted and as amended from time to time; and
(c) if a provision of
the other Act is repealed and re‑enacted (including where the other Act is
repealed and re‑enacted), with or without modifications, a reference to the
repealed provision extends to any corresponding re‑enacted provision.
10A References to amended or re‑enacted
laws of States and Territories
Where an Act contains a
reference to a short title or other citation that is or was provided by the law
of a State or Territory for the citation of a law of that State or Territory as
originally enacted or made, or as amended, then:
(a) the reference
shall be construed as a reference to that law as originally enacted or made and
as amended from time to time; and
(b) where that law has
been repealed and re‑enacted or re‑made, with or without modifications, the
reference shall be construed as including a reference to the re‑enacted or re‑made
law as originally enacted or made and as amended from time to time; and
(c) if a provision of
that law is repealed and re‑enacted or re‑made (including where that law is
repealed and re‑enacted or re‑made), with or without modifications, a reference
to the repealed provision extends to any corresponding re‑enacted or re‑made
provision.
11 Acts may be altered etc. in
same session
An Act may be altered,
amended or repealed in the same session of Parliament in which it was passed.
11A Inserting
definitions into provisions or inserting items into lists or tables
Inserting definitions
(1) If an amending Act
inserts a definition in a provision of the Act being amended, but does not
specify the position in that provision where it is to be inserted, it is to be
inserted in the appropriate alphabetical position, determined on a letter‑by‑letter
basis.
Inserting items into lists or tables
(2) If:
(a) an amending Act
inserts an item into a list or table in a provision of the Act being amended,
but does not specify the position in the list or table where the item is to be
inserted; and
(b) immediately before
the insertion, the list or table was arranged alphabetically;
the item is inserted in the appropriate
alphabetical position, determined on a letter‑by‑letter basis.
11B Amending Act to be construed
with amended Act
(1) Every Act amending
another Act must be construed with the other Act as part of the other Act.
(2) If:
(a) an Act (the amending
Act) amends another Act (the principal Act); and
(b) a provision (the non‑amending
provision) of the amending Act does not amend the principal Act, but
relates to an amendment of the principal Act made by another provision of the
amending Act; and
(c) a term is used in
the non‑amending provision that has a particular meaning in the principal Act
or in a provision of the principal Act amended or included by the amending Act;
then the term has that meaning in the non‑amending
provision.
Note: Subsection (2) covers,
for example, application, transitional and saving items in a Schedule to an
amending Act that relate to amendments of a principal Act made by other items
in the Schedule.
(3) Subsection (2) does
not limit subsection (1).
Part 5—General
interpretation rules
12 Every section a substantive
enactment
Every section of an Act
shall have effect as a substantive enactment without introductory words.
13 Material that is part of an Act
(1) All material from and
including the first section of an Act to the end of:
(a) if there are no
Schedules to the Act—the last section of the Act; or
(b) if there are one
or more Schedules to the Act—the last Schedule to the Act;
is part of the Act.
(2) The following are also
part of an Act:
(a) the long title of
the Act;
(b) any Preamble to
the Act;
(c) the enacting
words for the Act;
(d) any heading to a
Chapter, Part, Division or Subdivision appearing before the first section of
the Act.
15A Construction of Acts to be
subject to Constitution
Every Act shall be read
and construed subject to the Constitution, and so as not to exceed the
legislative power of the Commonwealth, to the intent that where any enactment
thereof would, but for this section, have been construed as being in excess of
that power, it shall nevertheless be a valid enactment to the extent to which
it is not in excess of that power.
15AA Interpretation best
achieving Act’s purpose or object
In interpreting a
provision of an Act, the interpretation that would best achieve the purpose or
object of the Act (whether or not that purpose or object is expressly stated in
the Act) is to be preferred to each other interpretation.
15AB Use of extrinsic material
in the interpretation of an Act
(1) Subject to subsection (3),
in the interpretation of a provision of an Act, if any material not forming
part of the Act is capable of assisting in the ascertainment of the meaning of
the provision, consideration may be given to that material:
(a) to confirm that
the meaning of the provision is the ordinary meaning conveyed by the text of
the provision taking into account its context in the Act and the purpose or
object underlying the Act; or
(b) to
determine the meaning of the provision when:
(i) the
provision is ambiguous or obscure; or
(ii) the
ordinary meaning conveyed by the text of the provision taking into account its
context in the Act and the purpose or object underlying the Act leads to a
result that is manifestly absurd or is unreasonable.
(2) Without limiting the
generality of subsection (1), the material that may be considered in
accordance with that subsection in the interpretation of a provision of an Act
includes:
(a) all matters not
forming part of the Act that are set out in the document containing the text of
the Act as printed by the Government Printer;
(b) any relevant
report of a Royal Commission, Law Reform Commission, committee of inquiry or
other similar body that was laid before either House of the Parliament before
the time when the provision was enacted;
(c) any relevant
report of a committee of the Parliament or of either House of the Parliament
that was made to the Parliament or that House of the Parliament before the time
when the provision was enacted;
(d) any treaty or
other international agreement that is referred to in the Act;
(e) any explanatory
memorandum relating to the Bill containing the provision, or any other relevant
document, that was laid before, or furnished to the members of, either House of
the Parliament by a Minister before the time when the provision was enacted;
(f) the
speech made to a House of the Parliament by a Minister on the occasion of the
moving by that Minister of a motion that the Bill containing the provision be
read a second time in that House;
(g) any document
(whether or not a document to which a preceding paragraph applies) that is
declared by the Act to be a relevant document for the purposes of this section;
and
(h) any relevant
material in the Journals of the Senate, in the Votes and Proceedings of the
House of Representatives or in any official record of debates in the Parliament
or either House of the Parliament.
(3) In determining whether
consideration should be given to any material in accordance with subsection (1),
or in considering the weight to be given to any such material, regard shall be
had, in addition to any other relevant matters, to:
(a) the desirability
of persons being able to rely on the ordinary meaning conveyed by the text of
the provision taking into account its context in the Act and the purpose or
object underlying the Act; and
(b) the need to avoid
prolonging legal or other proceedings without compensating advantage.
15AC Changes to style not to
affect meaning
Where:
(a) an Act has
expressed an idea in a particular form of words; and
(b) a later Act
appears to have expressed the same idea in a different form of words for the
purpose of using a clearer style;
the ideas shall not be taken to be
different merely because different forms of words were used.
15AD Examples
If an Act includes an
example of the operation of a provision:
(a) the example is
not exhaustive; and
(b) the example may
extend the operation of the provision.
15AE Legislative instruments etc.
Instruments that are described as
legislative instruments
(1) If a provision of a law
requires or permits an instrument that is described as a legislative instrument
to be made, then an instrument made under that provision:
(a) must be in writing; and
(b) is a legislative
instrument for the purposes of the Legislative Instruments Act 2003.
(2) However, the fact that a
provision of a law requires or permits an instrument that is described as a
legislative instrument to be made does not imply that an instrument made under
that provision is or must be of legislative character (within the ordinary
meaning of that term).
Instruments that are described as not
being legislative instruments
(3) If a provision of a law
requires or permits an instrument that is described as not being a legislative
instrument to be made, then an instrument made under that provision is not a
legislative instrument for the purposes of the Legislative Instruments Act
2003.
(4) However, the fact that a
provision of a law requires or permits an instrument that is described as not
being a legislative instrument to be made does not imply that an instrument
made under that provision is not, or must not be, of legislative character
(within the ordinary meaning of that term).
No inference to be drawn from express
statements
(5) In determining whether
an instrument made under a provision of a law is a legislative instrument for
the purposes of the Legislative Instruments Act 2003, no inference may
be drawn from the fact that an instrument made under another provision of that
or any other law is described as a legislative instrument, or as not being a
legislative instrument.
Example: In determining whether a
Ministerial direction under a provision is a legislative instrument, no
inference may be drawn from the fact that a Ministerial direction under another
provision is described as being a legislative instrument.
Definition
(6) In this section:
law means
an Act or regulations or any other instrument made under an Act.
15B Application of Acts in
coastal sea
Coastal sea of Australia
(1) An Act is taken to have
effect in, and in relation to, the coastal sea of Australia as if that coastal
sea were part of Australia.
(2) A reference in an Act to
Australia, or to the Commonwealth, is taken to include a reference to the
coastal sea of Australia.
Coastal sea of external Territory
(3) An Act that is in force
in an external Territory is taken to have effect in, and in relation to, the
coastal sea of the Territory as if that coastal sea were part of the Territory.
(3A) A reference in an Act to
all or any of the external Territories (whether or not one or more particular
Territories are referred to) is taken to include a reference to the coastal sea
of any Territory to which the reference relates.
Definition
(4) In this section, coastal
sea:
(a) in relation to Australia, means:
(i) the
territorial sea of Australia; and
(ii) the
sea on the landward side of the territorial sea of Australia and not within the
limits of a State or internal Territory;
and includes
the airspace over, and the sea‑bed and subsoil beneath, any such sea; and
(b) in
relation to an external Territory, means:
(i) the
territorial sea adjacent to the Territory; and
(ii) the
sea on the landward side of the territorial sea adjacent to the Territory and
not within the limits of the Territory;
and includes
the airspace over, and the sea‑bed and subsoil beneath, any such sea.
15C Jurisdiction of courts
Where a provision of an
Act, whether expressly or by implication, authorizes a civil or criminal
proceeding to be instituted in a particular court in relation to a matter:
(a) that provision
shall be deemed to vest that court with jurisdiction in that matter;
(b) the jurisdiction
so vested is not limited by any limits to which any other jurisdiction of the
court may be subject; and
(c) in the case of a
court of a Territory, that provision shall be construed as providing that the
jurisdiction is vested so far only as the Constitution permits.
16 References to the Sovereign
In any Act references
to the Sovereign reigning at the time of the passing of such Act, or to the
Crown, shall be construed as references to the Sovereign for the time being.
16A References to the Governor‑General
Where, in an Act, the
Governor‑General is referred to, the reference shall be deemed to include:
(a) the person for
the time being administering the Government of the Commonwealth; or
(b) where the
reference occurs in or in relation to a provision conferring on the Governor‑General
a power or function which the Governor‑General or the person administering the
Government of the Commonwealth has for the time being assigned to a person as
his or her deputy, that last‑mentioned person in his or her capacity as deputy;
and shall be read as referring to the
Governor‑General, or a person so deemed to be included in the reference, acting
with the advice of the Executive Council.
16B References to the Governor
of a State
Where, in an Act, the
Governor of a State is referred to, the reference shall be deemed to include
the Governor for the time being of the State or any other person who is, for
the time being, the chief executive officer or administrator of the government
of the State.
16C References to Stipendiary
Magistrate and Magistrate
(1) Where, in an Act,
reference is made to a Stipendiary Magistrate, the reference shall be read as
including a reference to any Magistrate in respect of whose office an annual
salary is payable.
(2) Where, in an Act passed
after the date of commencement of this section, reference is made to a
Magistrate, the reference shall be read as a reference to:
(a) a Chief, Police,
Stipendiary, Resident or Special Magistrate; or
(b) any other
Magistrate in respect of whose office an annual salary is payable.
17A Paper or document purporting
to be printed by Government Printer
For the purposes of an
Act in which reference is made to a paper or document purporting to be printed
by the Government Printer, the words “Government Printer of the Commonwealth”,
“Government Printer of the Commonwealth of Australia”, “Commonwealth Government
Printer” or “Government Printer of Australia” appearing on a paper or document
shall be deemed to refer to the Government Printer.
18A Parts of speech and
grammatical forms
In
any Act where a word or phrase is given a particular meaning, other parts of
speech and grammatical forms of that word or phrase have corresponding
meanings.
18B Titles of Chairs and Deputy
Chairs
Chair titles
(1) For the purposes of this
section, each of the following is a chair title:
(a) Chair;
(b) Chairperson;
(c) Chairman;
(d) Chairwoman.
(2) A person occupying an
office that is established by an Act and that has a chair title may choose to
be referred to by:
(a) that chair title;
or
(b) another chair
title; or
(c) any other similar
title.
(3) If a person occupying an
office that is established by an Act and that has a chair title does not choose
to be referred to by a title mentioned in subsection (2), the person may
be referred to by the chair title that someone addressing the person considers
appropriate.
Deputy chair titles
(4) For the purposes of this
section, each of the following is a deputy chair title:
(a) Deputy Chair;
(b) Deputy
Chairperson;
(c) Deputy Chairman;
(d) Deputy
Chairwoman.
(5) A person occupying an
office that is established by an Act and that has a deputy chair title may
choose to be referred to by:
(a) that deputy chair
title; or
(b) another deputy
chair title; or
(c) any other similar
title.
(6) If a person occupying an
office that is established by an Act and that has a deputy chair title does not
choose to be referred to by a title mentioned in subsection (5), the
person may be referred to by the deputy chair title that someone addressing the
person considers appropriate.
19 Mention of Minister
Where in an Act any
Minister is referred to, such reference shall be deemed to include any Minister
or member of the Executive Council for the time being acting for or on behalf
of such Minister.
19A References to Ministers and
Departments
(1) If a provision of an
Act:
(aa) refers to a
Minister by using the expression “the Minister” without specifying which
Minister is referred to; or
(ab) refers
to a particular Minister (including where there is no longer any such Minister);
then the reference is a reference to:
(a) if, for the time
being, different Ministers administer the provision in respect of different
matters:
(i) if 2
or more Ministers administer the provision in respect of the relevant matter—any
one of those Ministers; or
(ii) if
only one Minister administers the provision in respect of the relevant
matter—that Minister;
(b) if paragraph (a)
does not apply and, for the time being, 2 or more Ministers administer the
provision—any one of those Ministers; or
(c) if paragraphs (a)
and (b) do not apply—the Minister for the time being administering the
provision.
(2) Where an Act refers to a
Minister, specifying the Minister merely by reference to the fact that the
Minister administers a specified Act or enactment, subsection (1) applies
as if references in paragraphs (1)(a), (b) and (c) to the provision were
references to the specified Act or enactment.
(3) If a provision of an
Act:
(a) refers to a
Department by using the expression “the Department” without specifying which
Department is referred to; or
(b) refers
to a particular Department (including where there is no longer any such
Department);
then the reference is a reference to:
(c) if different
Ministers administer the provision in respect of different matters—the
Department of State of the Commonwealth that:
(i) deals
with the relevant matter; and
(ii) is
administered by the Minister or Ministers administering the provision in
respect of that matter; or
(d) in any other
case—the Department of State of the Commonwealth that:
(i) deals
with the matters to which the provision relates; and
(ii) is
administered by the Minister or Ministers administering the provision.
(4) For
avoidance of doubt, it is declared that where:
(a) a provision of an
Act is administered by 2 or more Ministers; and
(b) by virtue of this
section, the provision requires or permits anything to be done by or in
relation to any one of those Ministers;
the provision shall not be taken to
require or permit it to be done in any particular case by or in relation to
more than one of those Ministers.
19B Reference to Minister,
Department etc. where no longer any such Minister, or Department abolished etc.
(1) Where:
(a) reference is made
in a provision of an Act to a particular Minister of State;
(b) there is no
longer any such Minister; and
(c) the Governor‑General,
by order under this section, directs that the provision, or provisions that
include the provision, shall have effect:
(i) as if
there were substituted for that reference a reference to a Minister or
Ministers specified in the order; or
(ii) as
if, in so far as the provision applies in a particular respect specified in the
order, being one of several respects so specified, there were substituted for
that reference a reference to a Minister or Ministers specified in the order;
the provision shall, on and after the day
specified in the order (which may be a day before the order is made), have
effect accordingly for all purposes, including the purpose of the making of any
subsequent order under this subsection or subsection 19BA(1), other than
such an order that is expressed to have effect as if the first‑mentioned order
had not been made.
(2) Where:
(a) reference is made
in a provision of an Act to a particular Department of State of the
Commonwealth;
(b) the Department
has been abolished or the name of the Department has been changed; and
(c) the Governor‑General,
by order under this section, directs that the provision, or provisions that include
the provision, shall have effect:
(i) as if
there were substituted for that reference a reference to such Department as is
specified in the order; or
(ii) as
if, in so far as the provision applies in a particular respect specified in the
order, being one of several respects so specified, there were substituted for
that reference a reference to such Department as is specified in the order;
the provision shall, on and after the day
specified in the order (which may be a day before the order is made), have
effect accordingly for all purposes, including the purpose of the making of any
subsequent order under this subsection or subsection 19BA(2), other than
such an order that is expressed to have effect as if the first‑mentioned order
had not been made.
(3) Where:
(a) reference is made
in a provision of an Act to a particular office, being an office of Secretary
of a Department within the meaning of the Public Service Act 1999;
(b) the office has
been abolished (whether by reason of the abolition of the Department or
otherwise) or the name of the office has been changed; and
(c) the Governor‑General,
by order under this section, directs that the provision, or provisions that
include the provision, shall have effect:
(i) as if
there were substituted for that reference a reference to such office as is
specified in the order; or
(ii) as
if, in so far as the provision applies in a particular respect specified in the
order, being one of several respects so specified, there were substituted for
that reference a reference to such office as is specified in the order;
the provision shall, on and after the day
specified in the order (which may be a day before the order is made), have
effect accordingly for all purposes, including the purpose of the making of any
subsequent order under this subsection or subsection 19BA(3), other than
such an order that is expressed to have effect as if the first‑mentioned order
had not been made.
19BA Reference to Minister,
Department etc. inconsistent with changed administrative arrangements
(1) Where:
(a) reference is made
in a provision of an Act to a particular Minister of State;
(b) because of any
order or appointment made by the Governor‑General, there is a change in the
administration of the provision or of provisions that include the provision or
the reference to that Minister is no longer appropriate; and
(c) the Governor‑General,
by order under this section, directs that the provision, or provisions that
include the provision, shall have effect:
(i) as if
there were substituted for that reference a reference to a Minister or
Ministers specified in the order; or
(ii) as
if, in so far as the provision applies in a particular respect specified in the
order, being one of several respects so specified, there were substituted for
that reference a reference to a Minister or Ministers specified in the order;
the provision shall, on and after the day
specified in the order (which may be a day before the order is made), have
effect accordingly for all purposes, including the purpose of the making of any
subsequent order under this subsection or subsection 19B(1), other than
such an order that is expressed to have effect as if the first‑mentioned order
had not been made.
(2) Where:
(a) reference is made
in a provision of an Act to a particular Department of State of the
Commonwealth;
(b) by virtue of
administrative arrangements ordered by the Governor‑General, there is a change
in the matters dealt with by the Department but the name of the Department is
not changed; and
(c) the Governor‑General,
by order under this section, directs that the provision, or provisions that
include the provision, shall have effect:
(i) as if
there were substituted for that reference a reference to such Department as is
specified in the order; or
(ii) as
if, in so far as the provision applies in a particular respect specified in the
order, being one of several respects so specified, there were substituted for
that reference a reference to such Department as is specified in the order;
the provision shall, on and after the day
specified in the order (which may be a day before the order is made), have
effect accordingly for all purposes, including the purpose of the making of any
subsequent order under this subsection or subsection 19B(2), other than
such an order that is expressed to have effect as if the first‑mentioned order
had not been made.
(3) Where:
(a) reference is made
in a provision of an Act to a specified office, being an office of Secretary of
a Department within the meaning of the Public Service Act 1999;
(b) by virtue of
administrative arrangements ordered by the Governor‑General, there is a change
in the matters dealt with by the Department but the name of the office is not
changed; and
(c) the Governor‑General,
by order under this section, directs that the provision, or provisions that
include the provision, shall have effect:
(i) as if
there were substituted for that reference a reference to such office as is
specified in the order; or
(ii) as
if, in so far as the provision applies in a particular respect specified in the
order, being one of several respects so specified, there were substituted for
that reference a reference to such office as is specified in the order;
the provision shall, on and after the day
specified in the order (which may be a day before the order is made), have
effect accordingly for all purposes, including the purpose of the making of any
subsequent order under this subsection or subsection 19B(3), other than
such an order that is expressed to have effect as if the first‑mentioned order
had not been made.
19BAA Application of sections 19B
and 19BA where Department abolished and Department with same name established
Where a Department of
State of the Commonwealth is abolished and, immediately after its abolition, a
Department with the same name as the abolished Department is established:
(a) the first‑mentioned
Department shall, for the purposes of section 19B, be deemed not to have
been abolished; and
(b) that Department
and the other Department shall, for the purposes of section 19BA, be
deemed to be the same Department.
19BB Revocation of orders made
under sections 19B and 19BA
(1) The Governor‑General
may, by order under this section, revoke, in whole or in part, an order made
under section 19B or 19BA.
(2) Where an order under
section 19B or 19BA in force in relation to a provision of an Act is
revoked by an order under subsection (1), in whole or with respect to that
provision, the provision has effect on and after the day specified in the order
under subsection (1) (which may be a day before that order is made) as if
the revoked order had not been made in relation to that provision.
19BC Orders under sections 19B,
19BA and 19BB to be published in Gazette
Where an order is made
by the Governor‑General under section 19B, 19BA or 19BB, the Minister
shall cause a copy of the order to be published in the Gazette.
19BD Validity of acts done by
Ministers
If a Minister purports
to exercise a power or perform a function or duty that is conferred or imposed
on another Minister by an Act, the exercise of that power or the performance of
that function or duty is not invalid merely because the power, function or duty
is conferred or imposed on the other Minister.
19C References in agreements to
a Department, Minister, officer or body
(1) Where an agreement is or
has been entered into, either before or after the commencement of this section,
by or on behalf of the Commonwealth and, after the date of the agreement, the
functions of a Department of State of the Commonwealth in relation to the
administration of matters to which the agreement relates (in this section
referred to as the former Department) are or have been allotted
to another Department (in this section referred to as the new
Department):
(a) any reference in
the agreement to a Minister administering the former Department shall be read
as a reference to a Minister administering the new Department or to a member of
the Executive Council acting for the time being for him and on his behalf;
(b) any
reference in the agreement to the former Department shall be read as a
reference to the new Department; and
(c) any reference in
the agreement to an officer or body of persons shall be read as a reference to:
(i) any
other officer or body for the time being exercising the powers or performing
the functions of the first‑mentioned officer or body; or
(ii) an
officer or body specified, by order, by a Minister administering the new
Department.
(2) In
this section:
officer includes an APS employee.
20 Mention of an officer in
general terms
Where in an Act any
person holding or occupying a particular office or position is mentioned or
referred to in general terms, such mention or reference shall be deemed to
include all persons who at any time hold or occupy for the time being, or
perform for the time being the duties of, the office or position.
21 Office etc. means office etc.
of the Commonwealth
(1) In any Act:
(a) references to any
officer or office shall be construed as references to such officer or office in
and for the Commonwealth; and
(b) references to
localities jurisdictions and other matters and things shall be construed as
references to such localities jurisdictions and other matters and things in and
of the Commonwealth.
(2) In this section:
office includes a position occupied by an APS employee.
officer includes an APS employee.
23 Rules as to gender and number
In any Act:
(a) words importing a
gender include every other gender; and
(b) words in the
singular number include the plural and words in the plural number include the
singular.
25A Production of records kept
in computers etc.
Where a person who
keeps a record of information by means of a mechanical, electronic or other
device is required by or under an Act to produce the information or a document
containing the information to, or make a document containing the information
available for inspection by, a court, tribunal or person, then, unless the
court, tribunal or person otherwise directs, the requirement shall be deemed to
oblige the person to produce or make available for inspection, as the case may
be, a writing that reproduces the information in a form capable of being
understood by the court, tribunal or person, and the production of such a
writing to the court, tribunal or person constitutes compliance with the
requirement.
25B Alterations of names and
constitutions
(1) Where an Act alters the
name of a body (whether or not the body is incorporated) or alters the name of
an office, then:
(a) the body or
office continues in existence under the new name so that its identity is not
affected; and
(b) in any Act, in
any instrument under an Act, in any award or other industrial determination or
order or any industrial agreement, in any other order (whether executive,
judicial or otherwise), in any contract, in any pleading in, or process issued
in connection with, any legal or other proceedings or in any other instrument,
a reference to the body or the office under the former name shall, except in
relation to matters that occurred before the alteration took place, be
construed as a reference to the body or the office under the new name.
(1A) Where a law of a State or
Territory alters the name of a body (whether or not incorporated) or of an
office, then a reference in an Act or an instrument made under an Act to the
body or office under the former name is to be construed, except in relation to
matters that occurred before the alteration, as a reference to the body or
office under the new name.
(2) Where an Act alters the
constitution of a body (whether or not the body is incorporated), then:
(a) the body
continues in existence as newly constituted so that its identity is not
affected;
(b) the alteration
does not affect any functions, powers, property, rights, liabilities or
obligations of the body;
(c) the alteration
does not affect any legal or other proceedings instituted or to be instituted
by or against the body, and any legal or other proceedings that might have been
continued or commenced by or against the body as previously constituted may be
continued or commenced by or against the body as newly constituted; and
(d) the alteration
does not affect any investigation or inquiry being or proposed to be undertaken
by any tribunal, authority or person into any action taken or practice engaged
in by the body before the alteration took place, and any investigation or
inquiry that might have been continued or commenced into any such action or
practice may be continued or commenced as if the action had been taken or the
practice had been engaged in by the body as newly constituted.
(3) In this section:
office includes a position occupied by an APS employee.
25C Compliance with forms
Where an Act prescribes
a form, then strict compliance with the form is not required and substantial
compliance is sufficient.
25D Content of statements of
reasons for decisions
Where an Act requires a
tribunal, body or person making a decision to give written reasons for the
decision, whether the expression “reasons”, “grounds” or any other expression
is used, the instrument giving the reasons shall also set out the findings on
material questions of fact and refer to the evidence or other material on which
those findings were based.
Part 6—Service of
documents
28A Service of documents
(1) For the purposes of any
Act that requires or permits a document to be served on a person, whether the
expression “serve”, “give” or “send” or any other expression is used, then the
document may be served:
(a) on a natural
person:
(i) by
delivering it to the person personally; or
(ii) by
leaving it at, or by sending it by pre‑paid post to, the address of the place
of residence or business of the person last known to the person serving the
document; or
(b) on a body
corporate—by leaving it at, or sending it by pre‑paid post to, the head office,
a registered office or a principal office of the body corporate.
Note: The Electronic
Transactions Act 1999 deals with giving information in writing by means of
an electronic communication.
(2) Nothing in subsection (1):
(a) affects the operation
of any other law of the Commonwealth, or any law of a State or Territory, that
authorizes the service of a document otherwise than as provided in that
subsection; or
(b) affects the power
of a court to authorize service of a document otherwise than as provided in
that subsection.
29 Meaning of service by post
(1) Where an Act authorizes
or requires any document to be served by post, whether the expression “serve”
or the expression “give” or “send” or any other expression is used, then the
service shall be deemed to be effected by properly addressing, prepaying and
posting the document as a letter and, unless the contrary is proved, to have
been effected at the time at which the letter would be delivered in the
ordinary course of post.
(2) This section does not
affect the operation of section 160 of the Evidence Act 1995.
Part 7—Powers, functions
and duties
33 Exercise of powers and
performance of functions or duties
Powers, functions and duties may be
exercised or must be performed as the occasion requires
(1) Where an Act confers a
power or function or imposes a duty, then the power may be exercised and the function
or duty must be performed from time to time as occasion requires.
Meaning of may
(2A) Where an Act assented to
after the commencement of this subsection provides that a person, court or body
may do a particular act or thing, and the word may is used, the
act or thing may be done at the discretion of the person, court or body.
Powers, functions and duties of bodies
not affected by membership vacancies
(2B) Where an Act confers a
power or function, or imposes a duty, on a body, whether incorporated or
unincorporated, the exercise of the power or the performance of the function or
duty is not affected merely because of a vacancy or vacancies in the membership
of the body.
Power to make instrument includes
power to vary or revoke etc. instrument
(3) Where an Act confers a
power to make, grant or issue any instrument of a legislative or administrative
character (including rules, regulations or by‑laws) the power shall be
construed as including a power exercisable in the like manner and subject to
the like conditions (if any) to repeal, rescind, revoke, amend, or vary
any such instrument.
(3AA) If a condition (the ongoing
condition):
(a) must be satisfied
before the making, granting or issuing of an instrument; and
(b) is capable of
ceasing to be satisfied after the making, granting or issuing of the
instrument;
subsection (3) has effect, in
relation to the repeal, rescission or revocation of the instrument, as if the
reference to like conditions (to the extent that the reference relates to
the ongoing condition) were a reference to the ongoing condition ceasing to be
satisfied.
Example: A Minister may give a person a
written permission if, among other things, the Minister is satisfied the person
is of good character.
This condition is capable
of ceasing to be satisfied after the giving of the permission.
The Minister may repeal,
rescind or revoke the permission in the like manner if the Minister ceases to
be satisfied that the person is of good character.
Scope of powers in respect of matters
(3A) Where an Act confers a
power to make, grant or issue any instrument of a legislative or administrative
character (including rules, regulations or by‑laws) with respect to particular
matters (however the matters are described), the power shall be construed as
including a power to make, grant or issue such an instrument with respect to
some only of those matters or with respect to a particular class or particular
classes of those matters and to make different provision with respect to
different matters or different classes of matters.
(3AB) If an Act confers on a
person or authority the power to make an instrument (except a legislative instrument
or a rule of court):
(a) specifying,
declaring or prescribing a matter; or
(b) doing anything in
relation to a matter;
then, in exercising the power, the person
or authority may identify the matter by reference to a class or classes of
matters.
Note: This provision has a
parallel, in relation to legislative instruments, in section 13 of the Legislative
Instruments Act 2003.
(3AC) For the purposes of subsections (3A)
and (3AB), matter includes thing, person and animal.
(3B) Where an Act confers a
power to make, grant or issue any instrument of a legislative or administrative
character (including rules, regulations or by‑laws), the power shall not be
taken, by implication, not to include the power to make provision for or in
relation to a particular aspect of a matter by reason only that provision is
made by the Act in relation to another aspect of that matter or in relation to
another matter.
Power to make appointment to an office
or place
(4) Where an Act confers
upon any person or authority a power to make appointments to any office or
place, the power shall be construed as including a power to appoint a person to
act in the office or place until:
(a) a person is
appointed to the office or place; or
(b) the expiration of
12 months after the office or place was created or became vacant, as the case
requires:
whichever first happens, and as also
including a power to remove or suspend any person appointed, and to appoint
another person temporarily in the place of any person so suspended or in place
of any sick or absent holder of such office or place:
Provided that where the power of
such person or authority to make any such appointment is only exercisable upon
the recommendation or subject to the approval or consent of some other person
or authority, such power to make an appointment to act in an office or place or
such power of removal shall only be exercisable upon the recommendation or
subject to the approval or consent of such other person or authority.
Power to make instrument prescribing
penalties
(5) Where an Act confers a
power to make, grant or issue an instrument (including rules, regulations or by‑laws)
prescribing penalties not exceeding a specified amount or imprisonment for a
specified period, that limitation on the penalties that may be prescribed does
not prevent the instrument from requiring the making of a statutory
declaration.
33AA Power to appoint includes power
to reappoint
If an Act confers on a
person or body a power to make an appointment, the power is taken to include a power
of reappointment.
33AB Validity of things done under
appointments under Acts
Anything done by or in
relation to a person purporting to act under an appointment (including an
acting appointment) under an Act is not invalid merely because:
(a) for any
appointment—the occasion for the appointment had not arisen; or
(b) for any
appointment—there was a defect or irregularity in connection with the
appointment; or
(c) for any
appointment—the appointment had ceased to have effect; or
(d) for an acting
appointment—the occasion to act had not arisen or had ceased.
33A Acting in offices or
positions
Acting appointments
(1) Where a provision of an
Act (other than subsection 33(4) of this Act) confers on a person or body (in
this section called the appointer) a power to appoint a person (in
this section called the appointee) to act in a particular office,
then, except so far as the Act otherwise provides, the following paragraphs
apply in relation to an appointment made under the provision:
(a) the appointment
may be expressed to have effect only in the circumstances specified in the
instrument of appointment;
(b) the appointer
may:
(i) determine
the terms and conditions of the appointment, including remuneration and
allowances; and
(ii) terminate
the appointment at any time;
(ba) where the
appointment is to act in a vacant office, the appointee must not continue to
act in the office for more than 12 months;
(c) where the
appointee is acting in an office other than a vacant office and the office becomes
vacant while the appointee is acting, then, subject to paragraph (a), the
appointee may continue so to act until:
(i) the
appointer otherwise directs;
(ii) the
vacancy is filled; or
(iii) a
period of 12 months from the day of the vacancy ends;
whichever
happens first;
(d) the appointment
ceases to have effect if the appointee resigns in writing delivered to the
appointer;
(e) while the
appointee is acting in the office:
(i) the
appointee has and may exercise all the powers, and shall perform all the
functions and duties, of the holder of the office; and
(ii) that
or any other Act applies in relation to the appointee as if the appointee were
the holder of the office.
Acting by operation of law
(2) If a provision of an Act
provides for a person to act in a particular office (without the need for an
appointment), then, except so far as the Act otherwise provides, while the
person is acting in the office:
(a) the person has
and may exercise all the powers, and must perform all the functions and duties,
of the holder of the office; and
(b) the Act or any
other Act applies in relation to the person as if the person were the holder of
the office.
(3) Anything done by or in
relation to a person purporting to act in the office mentioned in subsection (2)
is not invalid merely because the occasion to act had not arisen or had ceased.
Definition
(4) In this section:
office includes a position occupied by an APS employee.
33B Participation in meetings by
telephone etc.
(1) This section applies to
a body (whether or not incorporated) established by an Act if the Act requires
or permits meetings of the members of the body to be held.
(2) The body may permit its
members to participate in a meeting, or all meetings, by:
(a) telephone; or
(b) closed‑circuit
television; or
(c) any other means
of communication.
(3) A member who
participates in a meeting under a permission under subsection (2) is taken
to be present at the meeting and to form part of any quorum for the meeting.
(4) The members of a body
participating in a meeting for which a permission under subsection (2) is
in effect may all participate by a means of communication referred to in that
subsection.
(5) A meeting for which a
permission under subsection (2) is in effect may be held at 2 or more
places at the same time.
34 Power to hear and determine a
matter includes power to receive evidence and examine witnesses etc.
Any court, Judge,
justice of the peace, officer, commissioner, arbitrator, or other person
authorized by law, or by consent of parties, to hear and determine any matter,
shall have authority to receive evidence and examine witnesses and to
administer an oath or affirmation to all witnesses legally called before them
respectively.
34AAA Exercise of powers etc. by holders
etc. of offices or positions
If an Act confers a
power or function or imposes a duty on a person holding or occupying an office
or position as such, then the power may be exercised or the function or duty
must be performed by the person for the time being holding or occupying the
office or position.
34AAB Minister may authorise
others to perform functions or duties or exercise powers on his or her behalf
(1) A Minister (the authorising
Minister) who administers (whether alone or jointly with one or more
other Ministers) an Act or a provision of an Act may authorise:
(a) a Minister who
does not administer the Act or provision; or
(b) a member of the
Executive Council who is not a Minister;
to act on behalf of the authorising
Minister in the performance of functions or duties, or the exercise of powers,
that the authorising Minister may perform or exercise under the Act or
provision.
(2) An authorisation under subsection (1)
in relation to an Act or a provision of an Act extends to the performance of
functions or duties, or the exercise of powers, that the authorising Minister
may perform or exercise under an instrument (including a regulation, rule or
Proclamation) having effect under or for the purposes of the Act or provision.
(3) Subject to subsection (4),
an authorisation under subsection (1) may be expressed:
(a) to have effect
only during a period or periods, or during the existence of a circumstance or
circumstances, referred to in the authorisation; or
(b) to take effect
immediately, or at a time referred to in the authorisation, and afterwards to
continue to have effect until another person is appointed to the office held by
the authorising Minister.
(4) An authorisation under subsection (1)
may be revoked at any time by the authorising Minister.
(5) An authorisation under subsection (1),
and the revocation of such an authorisation, must be in writing.
(6) This section does not
affect the giving, under a power existing apart from this section, of an
authorisation to a Minister or other member of the Executive Council to act on
behalf of another Minister.
34AA Delegation to persons
holding, occupying or performing the duties of an office or position
Where an Act confers
power to delegate a function, duty or power, then the power of delegation shall
not be construed as being limited to delegating the function, duty or power to
a specified person but shall be construed as including a power to delegate the
function, duty or power to any person from time to time holding, occupying, or
performing the duties of, a specified office or position, even if the office or
position does not come into existence until after the delegation is given.
34AB Effect of delegation
General
(1) Where
an Act confers power on a person or body (in this section called the authority)
to delegate a function, duty or power:
(a) the delegation
may be made either generally or as otherwise provided by the instrument of
delegation;
(b) the powers that
may be delegated do not include that power to delegate;
(c) a function, duty
or power so delegated, when performed or exercised by the delegate, shall, for
the purposes of the Act, be deemed to have been performed or exercised by the
authority;
(d) a delegation by
the authority does not prevent the performance or exercise of a function, duty
or power by the authority; and
(e) if the authority
is not a person, section 34A applies as if it were.
Addition of functions, duties or
powers
(2) If:
(a) a person (the delegator)
or body (also the delegator) delegates all the person’s or body’s
functions, duties or powers under an Act, or a provision of an Act, to another
person or body; and
(b) the Act is
amended to give the delegator one or more additional functions, duties or
powers under the Act or provision; and
(c) the delegation is
in force immediately before the amendment takes effect;
then, on and after the amendment taking
effect, the delegation is taken to include the additional functions, duties or
powers.
Alteration of functions, duties or
powers
(3) If:
(a) a person or body
delegates one or more of the person’s or body’s functions, duties or powers
under an Act, or a provision of an Act, to another person or body; and
(b) the Act is
amended to alter the scope of one or more of those functions, duties or powers
under the Act or provision; and
(c) the delegation is
in force immediately before the amendment takes effect;
then, on and after the amendment taking
effect, the delegation is taken to include the functions, duties or powers as
altered.
34A Exercise of powers and
performance of functions or duties that depend upon the opinion etc. of delegates
If:
(a) under an Act, a
person’s exercise of a power, or a person’s performance of a function or duty,
is dependent upon the person’s opinion, belief or state of mind in relation to
a matter; and
(b) that power,
function or duty has been delegated under that or any other Act;
the delegate may exercise that power, or
may perform that function or duty, upon the delegate’s opinion, belief or state
of mind in relation to that matter.
34B Presentation of papers to
the Parliament
(1) Where, by an Act or a
law of a Territory, provision is made requiring or permitting the presentation
(however expressed) of a paper to the Parliament or to both Houses, or to each
or either House, of the Parliament, it is sufficient compliance with the
provision, in relation to a House, if:
(a) the paper is
presented in that House in accordance with the rules or orders of the House or,
if, under the rules or orders of the House, papers are deemed to be presented
to the House if they are delivered to the Clerk of the House and recorded in
the records of the proceedings of the House, the paper is so delivered and
recorded;
(b) where
the provision provides for a specified person to present the paper or to cause
the paper to be presented—that person, or any other person who could by virtue
of this Act or of any other Act, or of a law of a Territory, act in the place
of that person, makes or causes to be made, as the case may be, the
presentation or the delivery of the paper referred to in the last preceding
paragraph; and
(c) where the
provision specifies a period within which the paper is to be presented—the
presentation, or the delivery and recording, of the paper referred to in paragraph (a)
takes place within that period.
(1A) For the purposes of an Act
or a law of a Territory that refers to papers presented (however the
presentation is described) to the Parliament or to both Houses, or to each or
either House, of the Parliament:
(a) presentation of a
paper in a House of the Parliament in accordance with the rules or orders of
the House; or
(b) if, under the
rules or orders of a House of the Parliament, papers are to be deemed to be
presented to the House if they are delivered to the Clerk of the House and
recorded in the records of the proceedings of the House—such a delivery and
recording of a paper;
shall be deemed to have been presentation
of the paper to that House, as described in that Act or law, effected or caused
by the person who so presented or delivered the paper or caused the paper to be
so presented or delivered.
(2) In this section, paper
includes:
(a) an ordinance,
rule, regulation or by‑law;
(b) a report; and
(c) any other
document or instrument whatsoever.
34C Periodic reports
(1) In this section:
periodic report means a regular report relating to:
(a) the activities,
operations, business or affairs of a person; or
(b) the
administration, operation or working of an Act or part of an Act, during a
particular period that ends on or after 30 June 1983.
person includes a body corporate, office, commission, authority,
committee, tribunal, board, institute, organization or other body however
described.
(2) Where an Act requires a
person to furnish a periodic report to a Minister but does not specify a period
within which the report is to be so furnished, that person shall furnish the
report to the Minister as soon as practicable after the end of the particular
period to which the report relates and, in any event, within 6 months after the
end of that particular period.
(3) Where an Act requires a
person to furnish a periodic report to a Minister for presentation to the
Parliament but does not specify a period within which the report is to be so
presented, that Minister shall cause a copy of the periodic report to be laid
before each House of the Parliament within 15 sitting days of that House after
the day on which he or she receives the report.
(4) Where this or any other
Act requires a person to furnish a periodic report to a Minister within a
specified period and that person is of the opinion that it will not be
reasonably possible to comply with the requirement, that person may, within the
specified period, apply to the Minister for an extension of the period, and,
where he or she does so apply, he or she shall furnish to the Minister a
statement in writing explaining why, in that person’s opinion, it will not be
reasonably possible to comply with the requirement.
(5) A Minister may, on
application under subsection (4), grant such extension as he or she
considers reasonable in the circumstances.
(6) Notwithstanding subsection (2)
and the provisions of any other Act, where a Minister grants an extension pursuant
to an application under subsection (4):
(a) the Minister
shall cause to be laid before each House of the Parliament, within 3 sitting
days of that House after the day on which he or she grants the extension, a
copy of the statement furnished pursuant to subsection (4) in respect of
the application together with a statement specifying the extension granted and
his or her reasons for granting the extension;
(b) the person who
made the application shall furnish the periodic report to the Minister within
the period as so extended; and
(c) the Minister
shall cause a copy of the periodic report to be laid before each House of the
Parliament within 15 sitting days of that House after the day on which he or
she receives the report.
(7) Where this or any other
Act requires a person to furnish a periodic report to a Minister within a
specified period or an extension of that period under this section and that
person fails to do so:
(a) that person
shall, not later than 14 days after the end of that specified period or
extension, as the case may be, furnish to the Minister a statement in writing
explaining why the report was not furnished as required; and
(b) the Minister
shall cause a copy of the statement to be laid before each House of the
Parliament within 3 sitting days of that House after the day on which he or she
receives the statement.
(8) This section does not
apply in relation to the Australian Security Intelligence Organisation, the
Australian Secret Intelligence Service or the Office of National Assessments.
Part 8—Distance, time and
age
35 Measurement of distance
In the measurement of
any distance for the purposes of any Act, that distance shall be measured in a
straight line on a horizontal plane.
36 Calculating time
(1) A period of time
referred to in an Act that is of a kind mentioned in
column 1 of an item in the following table is to be
calculated according to the rule mentioned in column 2
of that item:
|
Calculating
periods of time
|
|
Item
|
Column
1
If the period of time:
|
Column
2
then the period of time:
|
|
1
|
is expressed to occur between 2 days
|
includes both days.
|
|
2
|
is expressed to begin at, on or with a
specified day
|
includes that day.
|
|
3
|
is expressed to continue until a
specified day
|
includes that day.
|
|
4
|
is expressed to end at, on or with a
specified day
|
includes that day.
|
|
5
|
is expressed to begin from a specified
day
|
does not include that day.
|
|
6
|
is expressed to begin after a specified
day
|
does not include that day.
|
|
7
|
is expressed to end before a specified day
|
does not include that day.
|
Example 1: If a claim may be made between 1 September
and 30 November, a claim may be made on both 1 September and 30 November.
Example 2: If a permission begins on the
first day of a financial year, the permission is in force on that day.
Example 3: If a licence continues until 31 March,
the licence is valid up to and including 31 March.
Example 4: If a person’s right to make
submissions ends on the last day of a financial year, the person may make
submissions on that day.
Example 5: If a variation of an agreement is
expressed to operate from 30 June, the variation starts to operate on 1 July.
Example 6: If a decision is made on 2 August
and a person has 28 days after the day the decision is made to seek a review of
the decision, the 28‑day period begins on 3 August.
Example 7: If a person must give a notice to
another person at any time during the period of 7 days before the day a
proceeding starts and the proceeding starts on 8 May, the notice may be
given at any time during the 7‑day period starting on 1 May and ending on
7 May.
(2) If:
(a) an Act requires
or allows a thing to be done; and
(b) the last day for
doing the thing is a Saturday, a Sunday or a holiday;
then the thing may be done on the next
day that is not a Saturday, a Sunday or a holiday.
Example: If a person has until 31 March
to make an application and 31 March is a Saturday, the application may be
made on Monday 2 April.
(3) In this section:
holiday, in relation to the time for doing a thing, means:
(a) a day that is a
public holiday in the place in which the thing is to be or may be done; and
(b) if the thing is
to be or may be done at a particular office or other place—a day on which the
place or office is closed for the whole day.
37 Expressions of time
Where in an Act any
reference to time occurs, such time shall, unless it is otherwise specifically
stated, be deemed in each State or part of the Commonwealth to mean the legal
time in that State or part of the Commonwealth.
37A Attainment of particular age
For the purposes of any
Act, the time at which a person attains a particular age expressed in years is
the commencement of the relevant anniversary of the date of the birth of that
person.
Part 9—Citation of Acts
38 Reference to Acts
(1) An Act passed by the
Parliament of the Commonwealth may be referred to by the word “Act” alone.
(2) An Act passed by the
Parliament of the United Kingdom may be referred to by the term “Imperial Act”.
(3) An Act passed by the Parliament
of a State may be referred to by the term “State Act”.
(4) An Act passed by the
legislature of a Territory may be referred to by the term “Territory Act”.
39 Numbering of Acts
The Acts passed in each
secular year shall be numbered in regular arithmetical series, beginning with
the number 1, in the order in which the Governor‑General assents thereto or
makes known the Sovereign’s assent thereto.
40 Citation of Acts
(1) In any Act, instrument
or document:
(a) any Act may be
cited by its short title, or by reference to the secular year in which it was
passed and its number; and
(b) any Imperial Act
may be cited by its short title (if any) or in such other manner as is
sufficient in an Imperial Act; and
(c) any State Act may
be cited by a reference to the State by the Parliament whereof the Act was
passed, together with such mode of reference as is sufficient in Acts passed by
such Parliament; and
(d) any Territory Act
may be cited by a reference to the Territory by whose legislature the Act was
passed, together with such mode of reference as is sufficient in Acts passed by
that legislature.
(2) Any enactment may be
cited by reference to the part, section, subsection, or other division of the
Act, Imperial Act, State Act or Territory Act, in which the enactment is
contained.
40A References to the new
corporations and ASIC legislation
(1) A reference in an Act
to:
(a) an Act, or
regulations or another instrument, that is part of the new corporations
legislation or the new ASIC legislation; or
(b) a provision, or
group of provisions, of such an Act, regulations or other instrument;
is taken to include a reference to:
(c) the corresponding
part, provision or provisions of the old corporations legislation or the old
ASIC legislation; and
(d) any relevant
earlier law.
(2) Subsection (1) does
not apply to:
(a) a reference in an
Act that is part of the new corporations legislation or the new ASIC
legislation; or
(b) a reference in
the Corporations (Repeals, Consequentials and Transitionals) Act 2001;
or
(c) a reference that
identifies an Act that is part of the new corporations legislation or the new
ASIC legislation as an Act to be amended; or
(d) a reference in a
provision that applies an Act that is part of the new corporations legislation
or the new ASIC legislation, or a provision or group of provisions, of such an
Act to a particular matter (whether with or without modification).
(3) Subsection (1) has
effect:
(a) subject to an
express provision to the contrary in the Act concerned; and
(b) subject to
regulations made for the purposes of subsection (5).
(4) For
the purposes of this section:
(a) the question
whether a part, provision or provisions of the old corporations legislation corresponds
to a part, provision or provisions of the new corporations legislation is to be
determined in the same way as it is determined for the purposes of Part 10.1
of the Corporations Act 2001; and
(b) the question
whether a part, provision or provisions of the old ASIC legislation corresponds
to a part, provision or provisions of the new ASIC legislation is to be
determined in the same way as it is determined for the purposes of Part 16
of the Australian Securities and Investments Commission Act 2001.
(5) The regulations may
provide that subsection (1) does not apply in relation to a particular
reference, or class of references, in an Act.
(6) In this section:
new ASIC legislation has the same meanings as in Part 16 of the Australian
Securities and Investments Commission Act 2001.
new corporations legislation has the same meanings as in Part 10.1 of the Corporations
Act 2001.
old ASIC legislation has the same meanings as in Part 16 of the Australian
Securities and Investments Commission Act 2001.
old corporations legislation has the same meanings as in Part 10.1 of the Corporations
Act 2001.
relevant earlier law, in relation to a provision of the old corporations legislation, or
the old ASIC legislation, means a law that was:
(a) a corresponding
previous law (as defined for the purposes of that provision or provisions that
included that provision); or
(b) a relevant
previous law (as defined for the purposes of that provision or provisions that
included that provision).
Part 10—Non‑legislative instruments and resolutions
46 Construction of instruments
(1) If a provision confers
on an authority the power to make an instrument that is neither a legislative
instrument for the purposes of the Legislative Instruments Act 2003 nor
a rule of court, then:
(a) this Act applies
to any instrument so made as if it were an Act and as if each provision of the
instrument were a section of an Act; and
(b) expressions used
in any instrument so made have the same meaning as in the enabling legislation
as in force from time to time; and
(c) any instrument so
made is to be read and construed subject to the enabling legislation as in
force from time to time, and so as not to exceed the power of the authority.
(2) If any instrument so
made would, but for this subsection, be construed as being in excess of the
authority’s power, it is to be taken to be a valid instrument to the extent to
which it is not in excess of that power.
Note: This
provision has a parallel, in relation to legislative instruments, in section 13 of the Legislative
Instruments Act 2003.
46AA Prescribing matters by
reference to other instruments
(1) If legislation
authorises or requires provision to be made in relation to any matter in an
instrument that is neither a legislative instrument for the purposes of the Legislative
Instruments Act 2003 nor a rule of court, that instrument may make
provision in relation to that matter:
(a) by applying,
adopting or incorporating, with or without modification, the provisions of any
Act, or of any disallowable legislative instrument for the purposes of the Legislative
Instruments Act 2003, as in force at a particular time or as in force from
time to time; or
(b) subject to subsection (2),
by applying, adopting or incorporating, with or without modification, any
matter contained in any other instrument or writing as in force or existing at
the time when the first‑mentioned instrument takes effect.
(2) The instrument may not
make provision in relation to that matter by applying, adopting or
incorporating any matter contained in an instrument or other writing as in
force or existing from time to time.
Note: This
provision has a parallel, in relation to legislative instruments, in section 14 of the Legislative
Instruments Act 2003.
46B Disallowable non‑legislative
instruments
(1) This section applies to
instruments:
(a) that are neither
legislative instruments for the purposes of the Legislative Instruments Act
2003 nor rules of court; and
(b) that are made
under a provision of an Act or legislative instrument (the enabling provision);
and
(c) that are
expressly declared by the enabling provision or by another provision of the Act
or instrument to be disallowable instruments for the purposes of this section.
(2) An instrument to which
this section applies that is made on or after the commencing day for the
purposes of the Legislative Instruments Act 2003, or a particular
provision of such an instrument, takes effect from:
(a) the day specified
in the instrument for the purposes of the commencement of the instrument or
provision; or
(b) the day and time
specified in the instrument for the purposes of the commencement of the
instrument or provision; or
(c) the day, or day
and time, of the commencement of an Act, or of a provision of an Act, or of the
occurrence of an event, that is specified in the instrument for the purposes of
the commencement of the instrument or provision; or
(d) in any other
case—the first moment of the day next following the day of notification under subsection (5).
(3) An
instrument to which this section applies, or a provision of such an instrument,
has no effect if, apart from this subsection, it would take effect before the
date of its notification under subsection (5) and as a result:
(a) the rights of a
person (other than the Commonwealth or an authority of the Commonwealth) as at
the date of notification would be affected so as to disadvantage that person;
or
(b) liabilities would
be imposed on a person (other than the Commonwealth or an authority of the
Commonwealth) in respect of anything done or omitted to be done before the date
of notification.
(4) The effect of subsections (2)
and (3) on an instrument is subject to any contrary provision for commencement
of the instrument in the enabling legislation for the instrument if the
enabling legislation is an Act or a provision of an Act.
(5) An instrument to which
this section applies must be notified in the Gazette and, if the
instrument is not so notified by being published in full in the Gazette,
a notice in the Gazette of the instrument’s having been made, and of the
place or places where copies of it can be purchased, is sufficient compliance
with that requirement.
(6) If a notice of the
making of an instrument is published in accordance with subsection (5),
copies of the instrument must, at the time of publication of the notice or as
soon as practicable thereafter, be made available for purchase at the place, or
at each of the places, specified in the notice.
(7) If, on the day of
publication of a notice referred to in subsection (5), there are no copies
of the instrument to which the notice relates available for purchase at the
place, or at one or more of the places, specified in the notice, the Minister
administering the enabling provision must cause to be laid before each House of
the Parliament, within 15 sitting days of that House after that day, a
statement that copies of the instrument were not so available and the reason
why they were not so available.
(8) Failure to comply with a
requirement of subsection (6) or (7) in relation to any instrument does
not constitute a failure to comply with subsection (5).
(9) A copy of an instrument
to which this section applies must be laid before each House of the Parliament
not later than 6 sitting days of that House after the instrument is made and,
for that purpose, must be delivered to the House by the person or body
authorised to make the instrument.
(10) If a copy of an
instrument is not laid before each House of the Parliament in accordance with subsection (9),
it thereupon ceases to have effect.
(11) Unless the law otherwise
provides, Part 5 of the Legislative Instruments Act 2003, other
than sections 38, 39, 40 and 44, applies in relation to an instrument to
which this section applies as if:
(aa) the reference in
section 37 of the Legislative Instruments Act 2003 to registered
were omitted, and the note to that section were repealed; and
(a) references to
legislative instruments or to a legislative instrument were references to an
instrument to which this section applies; and
(b) references to enabling
legislation were references to the enabling provision; and
(c) references to
repeal were references to revocation; and
(ca) references to
registered were references to made; and
(cb) references to
subsection 38(1) of the Legislative Instruments Act 2003 were
references to subsection (9) of this section; and
(cc) references to
subsection 38(3) of the Legislative Instruments Act 2003 were
references to subsection (10) of this section; and
(d) references in
subsection 45(2) of the Legislative Instruments Act 2003 to another
legislative instrument included references to a provision of another non‑legislative
instrument made under the enabling provision.
47 Construction of resolutions
Where
any resolution is or has been passed by either House of the Parliament in
purported pursuance of any Act, then the resolution shall be read and construed
subject to the Constitution and to the Act under which it purports to have been
passed, to the intent that where the resolution would, but for this section, have
been construed as being in excess of authority, it shall nevertheless be a
valid resolution to the extent to which it is not in excess of authority.
Part 11—Regulations
51 Regulations
The Governor‑General
may make regulations prescribing matters:
(a) required or
permitted by this Act to be prescribed; or
(b) necessary or
convenient to be prescribed for carrying out or giving effect to this Act.