An Act for the Interpretation of
Acts of Parliament and for Shortening their Language
Part I—Preliminary
1
Short title [see Note
1]
This Act may be cited as the Acts
Interpretation Act 1901.
2
Application of Act
(1) Except so far as the contrary intention
appears, this Act applies to all Acts, including this Act.
(2) This Act shall bind the Crown.
Part II—Commencement of Acts
3
Meaning of commencement
(1) In every Act, commencement,
in relation to an Act or a provision of an Act, means the time at which the Act
or provision comes into operation.
(2) Where an Act, or any instrument
(including any rules regulations or by‑laws) made granted or issued under
a power conferred by 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.
4
Exercise of certain powers between passing and commencing of Act
(1) Where an Act (in this section referred to
as the Act concerned), being:
(a) an Act enacted on or after the
date of commencement of this section that is not to come into operation
immediately upon its enactment; or
(b) an Act enacted before the date of
commencement of this section that did not come into operation on or before that
date;
is expressed to confer power, or to amend another Act in
such a manner that the other Act, as amended, will confer power, to make an
appointment or to make an instrument of a legislative or administrative
character (including rules, regulations or by‑laws), then, unless the
contrary intention appears, the power may be exercised, and anything may be
done for the purpose of enabling the exercise of the power or of bringing the
appointment or instrument into effect, before the Act concerned comes into
operation as if it had come into operation.
(1A) Where:
(a) an Act that is in operation (in
this subsection called the parent Act) is expressed to confer
power to make an instrument of a legislative or administrative character
(including rules, regulations or by‑laws); and
(b) the Act concerned is expressed to
amend the parent Act in such a manner that the parent Act, as amended, will
confer additional power to make such an instrument;
then, unless the contrary intention appears:
(c) the powers mentioned in paragraphs (a)
and (b) may be exercised by making a single instrument; and
(d) such an instrument is to be
treated as made under subsection (1) so far as any provisions contained in
it required an exercise of the additional power mentioned in paragraph (b).
(2) An appointment made under subsection (1)
takes effect:
(a) on the day specified in the
appointment, being a day that is not earlier than the day on which the Act
concerned comes into operation; or
(b) if a day is not specified in the
appointment—on the day on which the Act concerned comes into operation.
(2A) Where, because of some or all of its
provisions (in this subsection called the relevant provisions),
an instrument is made under subsection (1), each relevant provision takes
effect, as declared in the instrument:
(a) on a specified date that is not
earlier than the date when the Act concerned comes into operation; or
(b) from a specified time on a
specified date that is not earlier than the date and time when the Act
concerned comes into operation; or
(c) on the date, or from the date and
time, when the Act concerned comes into operation.
(3) Where an Act is to come into operation on
a date to be fixed by a Proclamation or other instrument, the Proclamation or
other instrument may be made and published at any time after the enactment of
the Act.
(4) Where this
section applies to an Act by reason of the fact that that Act is expressed to
amend another Act in the manner referred to in subsection (1) and that
other Act has not come into operation, this section has effect as if the
references in subsections (1), (2) and (2A) to the coming into operation
of the Act concerned were references to the coming into operation of the other
Act as amended by the Act concerned.
(5) In subsections (1), (1A), (2), (2A),
(3) and (4) a reference to an Act shall be read as including a reference to any
provision or provisions of an Act.
(6) In the application of this section to an
instrument of a legislative character (including such an instrument made by
virtue of this section):
(a) references in this section to the
enactment of an Act are to be read as references to the making of such an
instrument; and
(b) references in this section to an
Act other than the Act concerned are to be read as references to instruments of
a legislative character.
5
Commencement of Acts
(1) Every Act to which the Royal Assent has
been given by the Governor‑General for and on behalf of the King on or
before 31 December 1937, shall be deemed to have come into operation on
the day on which that Act received the Royal Assent, unless the contrary
intention appears in the Act.
(1A) Every Act (other than an Act to alter the
Constitution) to which the Royal Assent is given by the Governor‑General
for and on behalf of the King on or after 1 January 1938, shall come into
operation on the twenty‑eighth day after the day on which that Act
receives the Royal Assent, unless the contrary intention appears in the Act.
(1B) Every Act to alter the Constitution to
which the Royal Assent is given by the Governor‑General for and on behalf
of the King on or after 1 January 1938, shall come into operation on the
day on which that Act receives the Royal Assent, unless the contrary intention
appears in that Act.
(2) Every Act
reserved for the signification of the King’s pleasure thereon shall come into
operation on the day on which His Majesty’s assent is proclaimed in the Gazette
by the Governor‑General, unless the contrary intention appears in
such Act.
6
Evidence of date of assent or proclamation
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 King’s assent, shall
be evidence that such date was the date on which the Governor‑General so
assented or made known the King’s assent, and shall be judicially noticed.
Part III—Repeal and expiration of Acts
7
Effect of repeal of Act
The repeal of an Act or part thereof by
which a previous Act or part thereof was repealed shall not have the effect of
reviving such last‑mentioned Act or part thereof without express words.
8
Effect of repeal
Where an Act repeals in the whole or in
part a former Act, then unless the contrary intention appears the repeal shall
not:
(a) revive anything not in force or
existing at the time at which the repeal takes effect; or
(b) affect the previous operation of
any Act so repealed, or anything duly done or suffered under any Act so
repealed; or
(c) affect any right privilege
obligation or liability acquired accrued or incurred under any Act so repealed;
or
(d) affect any penalty forfeiture or
punishment incurred in respect of any offence committed against any Act so
repealed; or
(e) affect any investigation legal
proceeding or remedy in respect of any such right privilege obligation
liability penalty forfeiture or punishment as aforesaid;
and 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 repealing Act had not been passed.
8A
Implied repeals etc.
A reference in section 7 or 8 to
the repeal of an Act or of a part of an Act includes a reference to:
(a) a repeal effected by implication;
(b) the abrogation or limitation of
the effect of the Act or part; and
(c) the exclusion of the application
of the Act or part to any person, subject‑matter or circumstance.
8B
Effect of expiration of Act
Where an Act or a part of an Act
expires, lapses or otherwise ceases to have effect, sections 7 and 8 apply
as if the Act or part had been repealed by another Act.
8C
References to part of an Act
A reference in section 7, 8, 8A or
8B to a part of an Act includes a reference to any provision of, or words,
figures, drawings or symbols in, an Act.
9
Repealed Acts in force until substituted provisions operate
Where an Act repeals in the whole or in
part a former Act and substitutes provisions in lieu thereof, the repealed
provisions shall remain in force until the substituted provisions come into
operation.
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, except so far as the
contrary intention appears:
(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, where, in connexion
with that reference, particular provisions of the repealed Act are referred to,
being provisions to which provisions of the re‑enacted Act correspond,
the reference to those particular provisions shall be construed as including a
reference to those corresponding provisions.
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, except so far as the contrary intention
appears:
(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, where, in connection with that reference, particular provisions of
the repealed law are referred to, being provisions to which provisions of the
re‑enacted or re‑made law correspond, the reference to those
particular provisions shall be construed as including a reference to those
corresponding provisions.
11
Expiration of Act
The expiration of an Act shall not
affect any civil proceeding previously commenced under such Act, but every such
proceeding may be continued and everything in relation thereto be done in all
respects as if the Act continued in force.
Part IV—General provisions
12
Every section a substantive enactment
Every section of an Act shall have
effect as a substantive enactment without introductory words.
13
Headings, schedules, marginal notes, footnotes and endnotes
(1) The headings of the Parts Divisions and
Subdivisions into which any Act is divided shall be deemed to be part of the
Act.
(2) Every schedule to an Act shall be deemed
to form part thereof.
(3) No marginal note, footnote or endnote to
an Act, and no heading to a section of an Act, shall be taken to be part of the
Act.
14
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.
14A
Definitions inserted by amending Act
Where 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 shall be deemed to be
inserted in the appropriate alphabetical position, determined on a letter‑by‑letter
basis.
14B
Commencement of paragraphs etc. in amending Act
Where:
(a) an Act makes an amendment of
another Act; and
(b) the amendment is in the form of:
(i) a paragraph of a
provision of the amending Act;
(ii) an item (whether or
not so described) in a Schedule to the amending Act; or
(iii) a
paragraph of such an item;
a separate commencement date may be given to the
amendment, paragraph or item as if the paragraph or item were a self‑contained
provision of the amending Act.
15
Amending Act to be construed with amended Act
Every Act amending another Act shall,
unless the contrary intention appears, be construed with such other Act and as
part thereof.
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
Regard to be had to purpose or object of Act
(1) In the interpretation of a provision of
an Act, a construction that would promote the purpose or object underlying the
Act (whether that purpose or object is expressly stated in the Act or not)
shall be preferred to a construction that would not promote that purpose or
object.
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
Where an Act includes an example of the
operation of a provision:
(a) the example shall not be taken to
be exhaustive; and
(b) if the example is inconsistent
with the provision, the provision prevails.
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
(1) Except so far as the contrary intention
appears:
(a) the provisions of every Act,
whether passed before or after the commencement of this section, shall be taken
to have effect in and in relation to the coastal sea of Australia as if the
coastal sea of Australia were part of Australia; and
(b) any
reference in an Act, whether passed before or after the commencement of this
section, to Australia or to the Commonwealth shall be read as including a
reference to the coastal sea of Australia.
(2) Except so
far as the contrary intention appears:
(a) the provisions of an Act, whether
passed before or after the commencement of this section, that are in force in
an external Territory shall be taken to have effect in and in relation to the
coastal sea of the Territory as if the coastal sea of the Territory were part
of the Territory; and
(b) any reference in an Act, whether
passed before or after the commencement of this section, to all or any of the
external Territories (whether or not a particular Territory or particular
Territories is or are referred to) shall be read as including a reference to
the coastal sea of any Territory to which the reference relates.
(3) Nothing in subsection (1) or (2)
shall be taken as limiting the operation that any Act had before the
commencement of this section.
(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) except so far as the contrary
intention appears, 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.
Part V—Words and references in Acts
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 unless
the contrary intention appears 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, unless the contrary intention appears, 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 deputy, that last‑mentioned person in his capacity as deputy;
and shall, unless the contrary intention appears, 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, unless the contrary intention
appears, 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, unless the contrary intention appears, 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.
(3) Unless the contrary intention appears, a
reference in an Act to a Magistrate does not include a reference
to a Federal Magistrate.
17
Constitutional and official definitions [see Note 2]
In any Act, unless the contrary
intention appears:
(a) Australia or the
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;
(c) The Constitution
shall mean the Constitution of the Commonwealth;
(d) The Constitution Act
shall mean The Commonwealth of Australia Constitution Act;
(e) The Parliament shall
mean the Parliament of the Commonwealth;
(g) The Executive Council
shall mean the Federal Executive Council;
(h) Minister of State or
Minister shall mean one of the King’s Ministers of State for the
Commonwealth;
(j) Proclamation shall
mean Proclamation by the Governor‑General that is published in the Gazette
or entered on the Federal Register of Legislative Instruments established under
the Legislative Instruments Act 2003;
(k) Consolidated Revenue Fund
means the Consolidated Revenue Fund referred to in section 81 of the
Constitution;
(l) The seat of Government
shall mean the seat of Government of the Commonwealth;
(m) Gazette means the Commonwealth
of Australia Gazette, and includes the Australian Government Gazette published
during the period commencing on 1 July 1973 and ending immediately before
the commencement of subsection 5(2) of the Acts Interpretation Amendment Act
1976;
(n) The Government Printer
shall include any person printing for the Government of the Commonwealth;
(o) State shall mean a
State of the Commonwealth;
(p) 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, and includes a Territory
administered by the Commonwealth under a Trusteeship Agreement;
(pb) The Jervis Bay Territory
means the Territory referred to in the Jervis Bay Territory
Acceptance Act 1915;
(pc) The Northern Territory
means the Northern Territory of Australia;
(pd) External Territory
means a Territory, not being an internal Territory, for the government of which
as a Territory provision is made by any Act;
(pe) Internal Territory
means the Australian Capital Territory, the Jervis Bay Territory or the Northern
Territory;
(q) Prescribed means
prescribed by the Act, or by Regulations under the Act;
(r) Regulations means
Regulations under the Act.
17AA
Definitions relating to the Australian Public Service
In any
Act, unless the contrary intention appears:
acting SES employee has the same meaning as
in the Public Service Act 1999.
APS employee has the same meaning as in the Public
Service Act 1999.
SES employee has the same meaning as in the Public
Service Act 1999.
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.
18
Interpretation
In any Act, unless the contrary
intention appears:
(a) The United
Kingdom shall mean the United Kingdom of Great Britain and Northern
Ireland;
(b) British possession
shall mean any part of the King’s dominions exclusive of the United Kingdom,
and where parts of such dominions are under both a central and a local
Legislature all parts under the central Legislature shall for the purposes of
this definition be deemed to be one British possession.
18A
Parts of speech and grammatical forms
In any
Act, unless the contrary intention appears, 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
How Chairs and Deputy Chairs may be referred to
(1) Where an Act establishes an office of
Chair of a body, the Chair may be referred to as Chair, Chairperson, Chairman, Chairwoman
or by any other such term as the person occupying the office so chooses.
(2) If a person occupying an office mentioned
in subsection (1) does not make known his or her choice of term, the
person may be referred to by whichever of the following terms that a person
addressing that person considers appropriate:
(a) Chair;
(b) Chairperson;
(c) Chairman;
(d) Chairwoman.
(3) Where an Act establishes an office of
Deputy Chair of a body, the Deputy Chair may be referred to as Deputy Chair,
Deputy Chairperson, Deputy Chairman, Deputy Chairwoman or by any other such
term as the person occupying the office so chooses.
(4) If a person occupying an office mentioned
in subsection (3) does not make known his or her choice of term, the
person may be referred to by whichever of the following terms that a person
addressing that person considers appropriate:
(a) Deputy Chair;
(b) Deputy Chairperson;
(c) Deputy Chairman;
(d) Deputy Chairwoman.
18C
Portfolio Minister may authorise a non‑portfolio Minister or a member of
the Executive Council who is not a Minister to act on his or her behalf in the
performance of statutory functions or the exercise of statutory powers
(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 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 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) Despite subsection (3), 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.
(7) In this section:
function includes duty.
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;
then, unless the contrary intention appears, 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) Where a
provision of an Act refers to a Department, using the expression “the
Department” without specifying which Department is referred to, then, unless
the contrary intention appears, the expression means:
(a) if, for the time being, 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
(b) 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 for the time being 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 from the date of the order or
such later date as is specified in the order, 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 from the date of the order or
such later date as is specified in the order, 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 from the date of the order or
such later date as is specified in the order, 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 from the date of the order or
such later date as is specified in the order, 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 from the date of the order or
such later date as is specified in the order, 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 from the date of the order or
such later date as is specified in the order, 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 from the date of the order under subsection (1) or such
later date as is specified in that order 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.
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 unless the contrary intention
appears be deemed to include all persons who at any time occupy for the time
being, or perform for the time being the duties of, the said office or
position.
21
Office etc. means office etc. of the Commonwealth
(1) In any Act, unless the contrary intention
appears:
(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.
22
Meaning of certain words
(1) In any
Act, unless the contrary intention appears:
(a) 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;
(aa) individual means a
natural person;
(b) Month shall mean
calendar month;
(c) Land shall include messuages
tenements and hereditaments, corporeal and incorporeal, of any tenure or
description, and whatever may be the estate or interest therein;
(d) Estate shall include
any estate or interest charge right title claim demand lien or incumbrance at
law or in equity;
(e) Financial year means
a period of 12 months commencing on 1 July;
(f) Foreign country
means any country (whether or not an independent sovereign state) outside Australia
and the external Territories;
(g) Calendar month means
a period commencing at the beginning of a day of one of the 12 months of the
year and ending immediately before the beginning of the corresponding day of
the next month or, if there is no such corresponding day, ending at the
expiration of the next month;
(h) Calendar year means
a period of 12 months commencing on 1 January; and
(j) Contravene includes
fail to comply with.
(2) Express references in an Act to
companies, corporations or bodies corporate do not imply that expressions in
the Act of the kind mentioned in paragraph (1)(a) do not include
companies, corporations or bodies corporate.
(3) In any Act, unless the contrary intention
appears, a reference to the law of the Commonwealth or to a law of the
Commonwealth does not include, and shall be deemed never to have included, a
reference to a law in force in a Territory in so far as the law is so in force
by virtue of an Act providing for the acceptance, administration or government
of that Territory.
22A
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 22B; or
(b) the person is in a de facto
relationship with the other person under section 22C.
22B
Registered relationships
For the purposes of paragraph 22A(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.
22C De facto
relationships
(1) For the purposes of paragraph 22A(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 22B) 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.
23
Rules as to gender and number
In any Act, unless the contrary
intention appears:
(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.
25
References to writing, documents and records
In any Act, unless the contrary
intention appears:
document includes:
(a) any paper or other material on
which there is writing;
(b) any paper or other material on
which there are marks, figures, symbols or perforations having a meaning for
persons qualified to interpret them; and
(c) any article or material from which
sounds, images or writings are capable of being reproduced with or without the
aid of any other article or device.
record includes information stored or
recorded by means of a computer.
writing includes any mode of representing or
reproducing words, figures, drawings or symbols in a visible form.
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, unless the contrary intention appears:
(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, unless
the contrary intention appears, 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, unless the contrary
intention appears:
(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,
unless the contrary intention appears, 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.
25E
Attainment of particular age
For the purposes of any Act, unless the
contrary intention appears, 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 VI—Judicial expressions
26
Judicial definitions
In any Act, unless the contrary
intention appears:
(a) The High Court shall
mean the High Court of Australia;
(b) Federal Court shall
mean the High Court or any court created by the Parliament;
(c) Court exercising federal
jurisdiction shall mean any court when exercising federal jurisdiction
and shall include federal courts;
(d) Court of summary
jurisdiction shall mean any justice or justices of the peace or other
magistrate of the Commonwealth or part of the Commonwealth, or of a State or
part of a State, or of an external Territory, sitting as a court (other than
the Federal Magistrates Court) for the making of summary orders or the summary
punishment of offences under the law of the Commonwealth or part of the Commonwealth
or under the law of the State or external Territory or by virtue of his or
their commission or commissions or any Imperial Act;
(e) Justice of the Peace
includes a Justice of the Peace for a State or part of a State or for a
Territory.
27
Meaning of certain words [see
Note 3]
In any Act, unless the contrary
intention appears:
(b) The words “oath” and “affidavit”
shall, in the case of persons allowed by law to affirm declare or promise
instead of swearing, include affirmation, declaration, and promise, and the
word “swear” shall in the like case include affirm, declare, and promise;
(c) The words “statutory declaration”
shall mean a declaration made by virtue of any Act authorizing a declaration to
be made otherwise than in the course of a judicial proceeding.
27A
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.
28
Rules of Court
(1) In any Act, unless the contrary intention
appears, the expression “Rules of Court” when used in relation to any court
shall mean 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 such authority to make Rules
of Court shall, unless the contrary intention appears, include a power to make
Rules of Court for the purpose of any Act which directs or authorizes anything
to be done by Rules of Court.
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, unless the contrary
intention appears, 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.
(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 unless the contrary
intention appears 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 VII—Powers conferred and duties imposed by Acts
33
Exercise of powers and duties
(1) Where an Act confers a power or imposes a
duty, then, unless the contrary intention appears, the power may be exercised
and the duty shall be performed from time to time as occasion requires.
(2) Where an Act confers a power or imposes a
duty on the holder of an office as such, then, unless the contrary intention
appears, the power may be exercised and the duty shall be performed by the
holder for the time being of the office.
(2AA) In subsection (2), office
includes a position occupied by an APS employee.
(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.
(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.
(3) Where an Act confers a power to make,
grant or issue any instrument (including rules, regulations or by‑laws)
the power shall, unless the contrary intention appears, 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.
(3A) Where an Act confers a power to make, grant
or issue any instrument (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.
(3B) Where an Act confers a power to make, grant
or issue any instrument (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.
(4) Where an Act confers upon any person or
authority a power to make appointments to any office or place, the power shall,
unless the contrary intention appears, 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, unless the contrary intention appears, only be
exercisable upon the recommendation or subject to the approval or consent of
such other person or authority.
(4A) In any Act, appoint includes
re‑appoint.
(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.
33A
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.
(2) 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.
(4) This section has effect subject to any
contrary intention in the Act.
34
Power to determine includes authority to administer oath
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 to all
witnesses legally called before them respectively.
34AA
Delegations
Where an Act confers power to delegate a
function or power, then, unless the contrary intention appears, the power of
delegation shall not be construed as being limited to delegating the function
or power to a specified person but shall be construed as including a power to
delegate the function 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
Where an
Act confers power on a person or body (in this section called the authority)
to delegate a function 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 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 or power by the
authority; and
(e) if the authority is not a person,
section 34A applies as if it were.
34A
Exercise of certain powers and functions by a delegate
Where, under any Act, the exercise of a
power or function by a person is dependent upon the opinion, belief or state of
mind of that person in relation to a matter and that power or function has been
delegated in pursuance of that or any other Act, that power or function may be
exercised by the delegate upon the opinion, belief or state of mind of the
delegate 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
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 does so apply, he
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 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 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 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 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 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 VIII—Distance and time
35
Measurement of distance
In the measurement of any distance for
the purposes of any Act, that distance shall, unless the contrary intention
appears, be measured in a straight line on a horizontal plane.
36
Reckoning of time
(1) Where in an Act any period of time,
dating from a given day, act, or event, is prescribed or allowed for any
purpose, the time shall, unless the contrary intention appears, be reckoned
exclusive of such day or of the day of such act or event.
(2) Where the last day of any period
prescribed or allowed by an Act for the doing of anything falls on a Saturday,
on a Sunday or on a day which is a public holiday or a bank holiday in the
place in which the thing is to be or may be done, the thing may be done on the
first day following which is not a Saturday, a Sunday or a public holiday or
bank holiday in that place.
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 standard or legal time in
that State or part of the Commonwealth.
Part IX—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”.
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 King’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.
(2) Any enactment may be cited by reference
to the part, section, subsection, or other division of the Act, Imperial Act or
State Act, in which the enactment is contained.
(3) Every such reference shall be made
according to the copy of such Act printed by the Government Printer of the
Commonwealth or of the State, or of the King’s Printer in London (as the case
may be), or purporting to be so printed.
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 XI—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, unless the contrary intention appears:
(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; and
(c) any instrument so made is to be
read and construed subject to the enabling legislation, and so as not to exceed
the power of the authority.
(2) If any instrument so made would, but for subsection (1),
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.
(3) If a provision confers on an authority
the power to make an instrument (that is not a legislative instrument or a rule
of court):
(a) specifying, declaring or
prescribing a matter or thing; or
(b) doing anything in relation to a
matter or thing;
then, in exercising the power, the authority may identify
the matter or thing by reference to a class or classes of matters or things.
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, unless the contrary intention appears,
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) Unless the contrary intention appears,
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, unless the contrary intention appears, 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 XII—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.