House Of Representatives

Explanatory Memorandum

(Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP)

Schedule 1 - main amendments

Acts Interpretation Act 1901

Item 1 - Part I (heading)

1. Item 1 simply removes the Roman numeral from the first part of the Acts Interpretation Act, titled 'Preliminary', as the numbering of all parts of the Acts Interpretation Act is being updated to Arabic numbering to reflect current drafting practice.

Item 2 - After section 1

2. Item 2 inserts a simplified outline of the Acts Interpretation Act. The outline will assist readers to understand the purpose and structure of the Act, and to more easily navigate through the Act to find relevant provisions.

Item 3 - Section 2

3. Item 3 replaces the existing text of section 2, which deals with the application of the Acts Interpretation Act. The new wording of section 2 will make it clear that the Acts Interpretation Act applies to all Commonwealth Acts, except in situations where there is a contrary intention in another Act.

4. This general 'contrary intention' provision qualifies all relevant provisions of the Acts Interpretation Act. As a result, there are a number of consequential amendments throughout this Bill which remove references to 'contrary intention' in other provisions in the Acts Interpretation Act (see for example items 14 and 17).

5. The Acts Interpretation Act is an Act of general application; however there are circumstances where other Commonwealth Acts will need to depart from the position outlined in the Acts Interpretation Act. Where other Acts do so, this shows a contrary intention and the relevant provision in the Acts Interpretation Act will not apply to the extent of that contrary intention.

6. Item 3 includes a note to subsection 2(1) to remind readers that the Acts Interpretation Act also applies to legislative instruments by operation of subsection 13(1) of the Legislative Instruments Act 2003 , and instruments which are neither legislative instruments for the purposes of the Legislative Instruments Act nor a rule of court by operation of subsection 46(1) of the Acts Interpretation Act.

7. Item 3 also removes existing subsection 2(2) of the Acts Interpretation Act (about binding the Crown) and moves this into a separate section 2A. The new wording is that 'this Act binds the Crown in each of its capacities', which is consistent with the Office of Parliamentary Counsel's drafting direction. This has the effect of binding the executive government of the Commonwealth, and of the Australian Capital Territory, of the Northern Territory and of Norfolk Island, and, to the extent relevant, of each of the States.

Item 4 - After Part I

Part 2 - Definitions

2B Definitions

8. Item 4 inserts a new Part 2 in the Acts Interpretation Act containing definitions that are useful for interpreting other Commonwealth legislation. The majority of the definitions are already in the Act, but the definitions have been consolidated and placed in alphabetical order so they are easier for readers to find. Six definitions have been amended and a number of new definitions have been added by the Bill.

9. The following definitions have been relocated within the Act without being substantively amended (in some instances the word 'the' has been removed from the start of the definition, but this does not change the operation of the definition).

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acting SES employee (from section 17AA)

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affidavit (from paragraph 27(b))

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APS employee (from section 17AA)

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Australia (from section 17. The definition in section 17 is of Australia or the Commonwealth . These concepts have been separated, but both remain in the Act)

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calendar year (from section 22)

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commencement (from subsection 3(1))

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Commonwealth (from section 17. The definition in section 17 is of Australia or the Commonwealth . These concepts have been separated, but both remain in the Act)

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Consolidated Revenue Fund (from section 17)

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Constitution (from section 17)

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contravene (from section 22)

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court exercising federal jurisdiction (from section 26)

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estate (from section 22 - note the word 'incumbrance' has been changed to 'encumbrance')

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Executive Council (from section 17)

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external Territory (from section 17)

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federal court (from section 26)

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financial year (from section 22)

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foreign country (from section 22)

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Government Printer (from section 17)

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High Court (from section 26)

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individual (from section 22)

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internal Territory (from section 17)

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Jervis Bay Territory (from section 17)

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justice of the Peace (from section 26)

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land (from section 22 - note that the word 'and' has been omitted from before the word 'whatever' as it is not required. The word 'therein' has also been replaced with 'in them')

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Northern Territory (from section 17)

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oath (from paragraph 27(b))

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Parliament (from section 17)

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prescribed (from section 17)

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Proclamation (from section 17)

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record (from section 25)

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regulations (from section 17)

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seat of Government (from section 17)

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SES employee (from section 17AA)

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State (from section 17)

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statutory declaration (from section 27)

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swear (from section 27)

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United Kingdom (from section 18)

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writing (from section 25).

10. The following definitions have been substantively amended by the Bill.

11. Calendar month is currently defined in section 22 as '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'. This definition has been replicated at section 2G for the definition of month . As a consequence, the definition of calendar month is being simplified in accordance with plain English drafting to 'one of the 12 months of the year'. This accords with contemporary understanding of the meaning of calendar month.

12. The current definition of court of summary jurisdiction in section 26 is cumbersome and includes elements that do not reflect the current formulation/operation of Australian Courts. For example, there are no Commonwealth courts of summary jurisdiction and there are no Imperial Acts in force in Australia relevant in this context. The Bill amends (and simplifies) the definition to reflect the status quo by providing that this type of court 'means any justice of the peace, or magistrate of a State or Territory, sitting as a court of summary jurisdiction'.

13. The definition of document (currently found in section 25) is amended to insert a new paragraph (d) so the definition of document includes 'a map, plan, drawing or photograph'. Under the current definition, there is an apparent inconsistency between paragraphs (a) and (b), and paragraph (c). The former paragraphs appear to exclude photographs and other images, whereas the latter appears broad enough to capture these where they are contained on electronic media but not on paper.

14. It is not intended that 'document' would have a restricted meaning when used in Commonwealth law. The amendments to this definition resolve this anomaly by broadening the definition to clearly include 'a map, plan, drawing or photograph'. It is intended that other forms of information, such as books or graphs, could also be covered. The definition is consistent with the current definition of 'document' contained in the Evidence Act 1995 (see the Dictionary in that Act). The amendment is also consistent with more modern Interpretation Acts, for example, section 38 of the Victorian Interpretation of Legislation Act 1984 .

15. Gazette is currently defined in section 17 as 'the Commonwealth of Australia Gazette , and includes the Australian Government Gazette published during the period commencing 1 July 1973 and ending immediately before the commencement of subsection 5(2) of the Acts Interpretation Amendment Act 1976'. Given the length of time since publication of the Australian Government Gazette ceased, the Bill amends (and simplifies) the definition to reflect the post-1976 position of 'the Commonwealth of Australia Gazette'.

16. Section 17 of the Acts Interpretation Act currently provides a definition of Minister or Minister of State as meaning 'one of the King's Ministers of State for the Commonwealth'. The reference to the Sovereign in this definition is unnecessary. It is clear that 'Ministers of State for the Commonwealth' are Ministers appointed by the Governor-General to administer departments of State of the Commonwealth under section 64 of the Constitution. While that section states that such officers 'shall be the Kings/Queens Ministers of State for the Commonwealth' they are referred to elsewhere in the Constitution as simply 'Ministers of State' (see for example sections 65 and 66).

17. Territory, Territory of the Commonwealth, Territory under the authority of the Commonwealth or Territory of Australia is currently defined in section 17 to include 'a Territory administered by the Commonwealth under a Trusteeship Agreement'. As Australia no longer administers any Territories under a Trusteeship Agreement, this part of the definition is considered to be unnecessary and can be removed without creating adverse effects. Where it is necessary in individual Acts to make provision in relation to Territories formerly administered by the Commonwealth under a Trusteeship Agreement this can continue to be done expressly in that particular Act.

18. The Bill also inserts the following new definitions.

19. Australian citizen is specified to have the same meaning as in the Australian Citizenship Act 2007 , which can currently be found in section 4 of that Act (the new definition is intended to pick up both s 4(1) and (2) of the current definition in the Australian Citizenship Act 2007 ). The term Australian citizen is used in numerous Commonwealth Acts without being defined. For example, the Bankruptcy Act 1966 and Telecommunications (Interception and Access) Act 1979 . This amendment ensures that the term is given a consistent and contemporary meaning across Commonwealth law.

20. Business day is defined as 'a day that is not a Saturday, a Sunday or a public holiday in the place concerned'. There are over 200 references to 'business day' in Commonwealth legislation, many with differing definitions. The Acts Interpretation Act is a logical repository for this definition and will ensure that it can be applied consistently across the statute book.

21. Contiguous zone has the same meaning as in the Seas and Submerged Lands Act 1973 . That Act provides that 'contiguous zone' has the same meaning as in Article 33 of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982, which can be found in the Schedule to the Seas and Submerged Lands Act and provides:

1.

In a zone contiguous to its territorial sea, described as the contiguous zone, the coastal State may exercise the control necessary to:

(a)

prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations within its territory or territorial sea;

(b)

punish infringement of the above laws and regulations committed within its territory or territorial sea.

2.

2. The contiguous zone may not extend beyond 24 nautical miles from the baselines from which the breadth of the territorial sea is measured.

22. The term 'contiguous zone' is used in the Migration Act 1958 and the Customs Act 1901 where it is also defined by reference to the Seas and Submerged Lands Act. Including this definition in the Acts Interpretation Act avoids the need for it to be repeated in other legislation as well as ensuring consistency. The inclusion of this definition fits well with existing Acts Interpretation Act provisions defining 'Australia' and 'coastal sea' and the new definitions of 'continental shelf', 'exclusive economic zone' and 'territorial sea' inserted by this Bill.

23. Continental shelf has the same meaning as in the Seas and Submerged Lands Act 1973 . That Act provides that 'continental shelf' has the same meaning as in paragraph 1 of Article 76 of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982, which can be found in the Schedule to the Seas and Submerged Lands Act and provides:

1.

The continental shelf of a coastal State comprises the sea-bed and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200 nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer edge of the continental margin does not extend up to that distance.

2.

The continental shelf of a coastal State shall not extend beyond the limits provided for in paragraphs 4 to 6.

3.

The continental margin comprises the submerged prolongation of the land mass of the coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise. It does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.

4.(a)

For the purposes of this Convention, the coastal State shall establish the outer edge of the continental margin wherever the margin extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by either:

(i)

a line delineated in accordance with paragraph 7 by reference to the outermost fixed points at each of which the thickness of sedimentary rocks is at least 1 per cent of the shortest distance from such point to the foot of the continental slope; or

(ii)

a line delineated in accordance with paragraph 7 by reference to fixed points not more than 60 nautical miles from the foot of the continental slope.

4.(b)

In the absence of evidence to the contrary, the foot of the continental slope shall be determined as the point of maximum change in the gradient at its base.

5.

The fixed points comprising the line of the outer limits of the continental shelf on the sea-bed, drawn in accordance with paragraph 4(a)(i) and (ii), either shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured or shall not exceed 100 nautical miles from the 2,500 metre isobath, which is a line connecting the depth of 2,500 metres.

6.

Notwithstanding the provisions of paragraph 5, on submarine ridges, the outer limit of the continental shelf shall not exceed 350 nautical miles from the baselines from which the breadth of the territorial sea is measured. This paragraph does not apply to submarine elevations that are natural components of the continental margin, such as its plateaux, rises, caps, banks and spurs.

7.

The coastal State shall delineate the outer limits of its continental shelf, where that shelf extends beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured, by straight lines not exceeding 60 nautical miles in length, connecting fixed points, defined by co-ordinates of latitude and longitude.

8.

Information on the limits of the continental shelf beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured shall be submitted by the coastal State to the Commission on the Limits of the Continental Shelf set up under Annex II on the basis of equitable geographical representation. The Commission shall make recommendations to coastal States on matters related to the establishment of the outer limits of their continental shelf. The limits of the shelf established by a coastal State on the basis of these recommendations shall be final and binding.

9.

The coastal State shall deposit with the Secretary-General of the United Nations charts and relevant information, including geodetic data, permanently describing the outer limits of its continental shelf. The Secretary-General shall give due publicity thereto.

10.

The provisions of this article are without prejudice to the question of delimitation of the continental shelf between States with opposite or adjacent coasts.

24. The term 'continental shelf' is referred to in a diverse array of Commonwealth legislation. Given the importance of the term and its relationship to concepts such as 'Australia' and 'coastal sea', it is appropriate to include a cross-reference in the Acts Interpretation Act to the Seas and Submerged Lands Act definition.

25. It makes sense for the definition to remain co-located with the relevant provisions of the Convention in the schedule to the Seas and Submerged Lands Act. However, including a cross-reference in the Acts Interpretation Act will make it easier for users of Commonwealth legislation that includes this term to find its definition, avoid the need for the definition to be repeated in other legislation as well as ensuring consistency.

26. Exclusive economic zone has the same meaning as in the Seas and Submerged Lands Act 1973 . That Act provides that 'exclusive economic zone' has the same meaning as in Articles 55 and 57 of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982, which can be found in the Schedule to the Seas and Submerged Lands Act. Article 55 provides:

The exclusive economic zone is an area beyond and adjacent to the territorial sea, subject to the specific legal regime established in this Part, under which the rights and jurisdiction of the coastal State and the rights and freedoms of other States are governed by the relevant provisions of this Convention.

27. Article 57 provides that 'the exclusive economic zone shall not extend beyond 200 nautical miles from the baselines from which the breadth of the territorial sea is measured'.

28. This is a term that is used in a wide variety of Commonwealth legislation. For example, in the Environment Protection and Biodiversity Conservation Act 1989 and the Fisheries Management Act 1991 . Including this definition in the Acts Interpretation Act avoids the need for it to be repeated in other legislation as well as ensuring consistency.

29. Insolvent under administration has the same meaning as in the Corporations Act 2001 . This outlines a range of scenarios, such as where a person is bankrupt under the Bankruptcy Act 1966 or a law of an external Territory. While the Corporations Act definition has been relied on in other legislation, such as section 10B of the Social Security Act 1991 , there are a number of other Acts in which this term is undefined or has a stand-alone definition (see for example section 4 of the Customs Act 1901 ). The differences between the definitions are generally minor and some of the stand-alone definitions are the same as each other. A cross-reference to the Corporations Act definition in the Acts Interpretation Act will reduce the likelihood of further definitions and ensure consistency for undefined and new uses of this term.

30. Modifications is defined as 'in relation to a law, includes additions, omissions and substitutions.' This definition is being included to support references to 'modifications' in other Commonwealth legislation. For example, provisions that allow regulations or other instruments to modify provisions of an Act in certain circumstances.

31. Penalty unit has the same meaning as in section 4AA of the Crimes Act 1914 . This is a term widely used in Commonwealth legislation for both criminal and civil penalties and it will assist readers to find the meaning if it is cross-referenced in the Acts Interpretation Act.

32. There are currently numerous references to 'Standards Association of Australia' and 'Standards Australia International Limited' in Commonwealth legislation. However, there is only one 'Standards Australia' and standards series being referred to in each case. The Bill introduces a new definition of Standards Australia to provide clarity on this and reduce future proliferation of inconsistent provisions dealing with Australian Standards. The consequential amendments to this Bill will replace, where appropriate, existing references to 'Standards Association of Australia' and 'Standards Australia International Limited' with references to 'Standards Australia'.

33. Territorial sea has the same meaning as in the Seas and Submerged Lands Act 1973 . That Act provides that 'territorial sea' has the same meaning as in Articles 3 and 4 of the United Nations Convention on the Law of the Sea done at Montego Bay on 10 December 1982 which can be found in the Schedule to the Seas and Submerged Lands Act. Article 3 provides that 'every State has the right to establish the breadth of its territorial sea up to a limit not exceeding 12 nautical miles, measured from baselines determined in accordance with this Convention'. Article 4 provides that 'the outer limit of the territorial sea is the line every point of which is at a distance from the nearest point of the baseline equal to the breadth of the territorial sea'.

34. The term 'territorial sea' is used in a wide variety of Commonwealth legislation and is complementary to existing section 15B of the Acts Interpretation Act which deals with the application of Acts in the coastal sea, as well as the new definitions of 'continental shelf' and 'contiguous zone' being introduced by this Bill. Including this definition in the Acts Interpretation Act avoids the need for it to be repeated in other legislation as well as ensuring consistency.

Other definitions and rules of interpretation

35. New section 2B provides cross-references to definitions in Part 2 that are dealt with in separate sections. For example, new section 2C deals with references to persons, therefore readers looking for a definition of 'person' in section 2B are referred to section 2C.

36. There are also rules of interpretation contained in the Acts Interpretation Act that were not appropriate to move to the new part containing definitions. These rules, as with all definitions in Part 2, apply to all Commonwealth legislation; therefore they have been cross-referenced in section 2B (for example, readers that look for a definition of 'Governor-General' in section 2B are referred to section 16A which deals with references to the Governor-General in Commonwealth legislation).

37. There are also some definitions which have been kept in the section where they are currently found because they only apply to that particular section of the Acts Interpretation Act (see for example the definition of office and officer in section 21 and the definition of office in subsection 33A(2)), and do not have general application across all Commonwealth legislation.

2C References to persons

38. The text of this provision has been taken from existing paragraph 22(1)(a) and subsection 22(2). This text is being moved as it relates to interpretation of expressions used to denote persons, companies, corporations or bodies corporate and is best located within new Part 2 of the Acts Interpretation Act. The meaning has not been changed.

2D References to de facto partners

39. The text of this provision has been taken from existing section 22A. The text is being moved as it relates to interpretation of the term de facto partner , however the meaning has not been changed.

2E Registered relationships

40. The text of this provision has been taken from existing section 22B. The text is being moved as it relates to interpretation of the term registered relationship , however the meaning has not been changed.

2F De facto relationships

41. The text of this provision has been taken from existing section 22C. The text is being moved as it relates to interpretation of the term de facto relationship , however the meaning has not been changed.

2G Months

42. Section 22 of the Acts Interpretation Act currently defines calendar month . The new provision defining month expands on this existing section 22 definition to make it clear how to measure a period of two or more months. The new provision provides greater legal certainty on interpreting the term 'month' in Commonwealth legislation. See paragraph 22 above for an outline of the amended definition of 'calendar month'.

2H References to law of the Commonwealth

43. The text of this provision has been taken from existing subsection 22(3). The text is being moved as it relates to interpretation of the phrase law of the Commonwealth , however the meaning has not been changed.

44. The phrase 'unless the contrary intention appears' has been deleted due to the amendments made to section 2 by item 3.

2J Documents commencing proceedings

45. The text of this provision has been taken from existing section 27A. The text is being moved as it relates to the types of documents that can be used to commence court proceedings, however the meaning has not been changed.

2K Rules of court

46. The text of this provision has been taken from existing section 28. The text is being moved as it relates to the interpretation of the term rules of court , however the meaning has not been changed.

47. The phrase 'unless the contrary intention appears' has been deleted due to the amendments made to section 2 by item 3.

2L References to Australian Standards

48. This new section clarifies references to Australian Standards publication of standard numbers. See paragraph 43 above for an explanation of the new definition of 'Standards Australia'.

Item 5 - Part II (heading)

49. Item 5 updates the heading of what is currently 'Part II Commencement of Acts' to re-number it Part 3 due to the insertion of the new Part 2 containing definitions (see item 4) and removes the Roman numeral as the numbering of all parts of the Act is being updated to Arabic numbering to reflect current drafting practice.

Item 6 - Subsection 3(1)

50. Item 6 repeals subsection 3(1) as this deals with the definition of commencement which has been moved to the new 'Part 2 Definitions' inserted by this Bill (see item 4). The heading of section 3 is being changed from ' Meaning of commencement' to ' When Acts come into operation' as the remaining subsection (subsection 3(2)) deals with this.

Item 7 - Subsection 3(2)

51. Subsection 3(2) deals with the commencement of Acts. The wording of the introductory sentence is being changed so that instead of referring to Acts and instruments made under an Act, it only specifies commencement for an Act or a provision of an Act.

52. This commencement provision would still apply to non-legislative instruments made under an Act by virtue of the rule in subsection 46(1) of the Acts Interpretation Act. Subsection 46(1) provides that the Acts Interpretation Act applies to a non-legislative instrument made under an Act as if it was an Act and as if each provision were a section of an Act (an equivalent provision for legislative instruments exists in subsection 13(1) of the Legislative Instruments Act 2003 ).

53. Item 7 also removes the subsection numbering from section 3. It is no longer required as the content of subsection 3(1) is being moved to 'Part 2 Definitions' (see items 4 and 6).

Item 8 - After section 3

54. A new section 3A is being added which will replace existing section 5 of the Act (section 5 is repealed by item 10). This section logically follows section 3, as it deals with the commencement of Acts.

55. Section 3A contains no equivalent to existing subsection 5(1). This subsection provided for Acts that received Royal Assent on or before 31 December 1937. It will rarely, if ever, be necessary to refer to this subsection. Removal of this provision will make the position clearer and ensure that greater emphasis is placed on the current default rule.

56. New section 3A provides that the section does not apply to an Act that contains commencement provisions. The current drafting practice is to specifically provide for the commencement of Acts.

57. However, in a case where an Act does not specify when it commences, the Acts Interpretation Act provides that it will commence on the 28th day after it receives Royal Assent. This provision operates in the same way as the existing subsection 5(1A).

58. Where an Act is amending the Constitution, it commences on the day of Royal Assent. This is consistent with the existing subsection 5(1B).

59. Section 60 of the Constitution provides that a law reserved for the Queen's pleasure has no effect unless the Queen's assent is made and known and existing subsection 5(2) provides that such a law comes into operation on the day the assent is proclaimed in the Gazette . In accordance with current drafting practice, any law reserved for the Queen's pleasure will provide for its own commencement and it is unnecessary to include a specific rule in the Acts Interpretation Act for this occurrence.

Item 9 - Section 4

60. Item 9 re-writes section 4 which deals with the exercise of certain powers between passing and commencement of an Act. Currently section 4 contains the phrase 'comes into operation' which is not defined in the Acts Interpretation Act. These words are being replaced with 'commence' as 'commencement' is a term that is defined in existing subsection 3(1) of the Act (this definition is being moved to new section 2B by item 4 of this Bill). Existing subsection 3(2) makes it clear that the terms 'come into operation' and 'commence' are intended to be used interchangeably.

61. The term 'come into operation' was considered in the case of Alexandra Private Geriatric Hospitals Pty Ltd v Blewett (1984) 56 ALR 265 and was held to mean ' had commenced as a matter of law'. To enhance the internal coherency and clarity of the Acts Interpretation Act, the phrase 'come into operation' has been removed from the Acts Interpretation Act (where appropriate) and replaced with the term 'commence' wherever appearing.

62. Item 9 inserts a new subsection 4(4) to clarify that the exercise of a power under subsection 4(2) (which concerns the exercise of power between the passing and commencement of an Act) does not confer a power or right or impose an obligation except in the limited circumstances listed in new subsection 4(4). These circumstances are 'bringing the appointment or instrument into effect', or 'bringing the Act concerned into operation', or 'making the Act concerned or the other Act as amended fully effective at or after the commencement of the Act concerned'. This provides some administrative flexibility, but ensures that no substantive matters occur until after commencement.

63. This provision is consistent with section 13 of the Victorian Interpretation of Legislation Act 1984 and section 25 of the Western Australian Interpretation Act 1984 .

64. Existing subsection 4(3), which deals with when an Act commences on a date fixed by Proclamation, has not been included in new section 4. This is because current drafting practice is for commencement provisions in Acts to commence on Royal Assent where the rest of the Act commences by Proclamation, so this subsection is no longer required.

65. Existing subsection 4(6), which deals with the application of the section to instruments of legislative character, has also not been included in new section 4. This is because subsection 13(1) of the Legislative Instruments Act 2003 says that the Acts Interpretation Act applies to any legislative instruments as if it were an Act.

Item 10 - Section 5

66. Item 10 repeals section 5 because a new section on commencement replacing section 5 is being added by item 8.

Item 11 - Section 6

67. Section 6 refers to the 'King's assent'. As Australia currently has a Queen, rather than a King, and to avoid the need to update this section any time this changes in the future, the provision is being amended to refer to the 'Sovereign's assent'. Pursuant to section 16 of the Acts Interpretation Act (which deals with the interpretation of references to the Sovereign in Acts), this will be interpreted as a reference to the Sovereign at the time.

68. The heading to section 6 is being altered by removing the reference to proclamations as the section only deals with assent.

Item 12 - Part III (heading)

69. The heading for Part III is being changed from 'Repeal and expiration of Acts' to 'Part 4 - Amendment, repeal and expiry of Acts.' Item 13 inserts a new provision about the effect of repeal or amendment of an Act, therefore the new heading provides a better description of the content of Part 4 of the Act.

70. The third part of the Act becomes the fourth due to the insertion of the new Part 2 dealing with definitions (see item 4) and the Roman numeral is removed as the numbering of all parts of the Act is being updated to Arabic numbering to reflect current drafting practice.

Item 13 - Sections 7 to 9

71. Sections 7 to 9 are being repealed and replaced by a new provision dealing with the effect of repeal or amendment of Acts that is drafted in a way that is easier for the reader to understand. The section does not depart from the existing operation of sections 7 to 8C.

•

New subsection 7(1) has the same effect as existing section 7 of the Acts Interpretation Act.

•

New subsection 7(2) has the same effect as existing section 8 of the Acts Interpretation Act. However, it is recast so that the specified consequences of repeal are clearly expressed to apply to both repeal and amendment. The definition of implied repeals in existing section 8A was intended to encompass amendments that are equivalent in their effect to repeal. The direct inclusion of amendments in new subsection 7(2) is likely to be more easily understood by readers than a reference to implied repeal.

•

New subsection 7(3) has the same effect as existing sections 8A and 8B of the Acts Interpretation Act.

•

New subsection 7(4) has the same effect as existing section 8C of the Acts Interpretation Act.

72. The new section 7 makes it clear that repeal of an amending Act does not affect the operation of any amendments already made by that Act.

73. Existing section 9, which deals with repealed Acts being in force until substituted provisions operate, is being repealed because it is redundant. Current drafting practice is to always make it clear when repealed provisions cease to have effect. Therefore there should never be any doubt about the timing of repeal and substitution.

Item 14 - Section 10

74. This amendment removes the words 'unless the contrary intention appears' from section 10 due to the amendments made to section 2 by item 3.

Item 15 - Paragraph 10(b)

75. Item 15 deletes the text in paragraph 10(b) starting at 'and, where, in connexion' through to 'corresponding provisions'. Item 16 inserts replacement text into a new paragraph 10(c).

Item 16 - At the end of section 10

76. Section 10 concerns references to amended or re-enacted Acts. Item 16 inserts a new paragraph 10(c) to replace and extend the text currently found in paragraph 10(b) (being removed by item 15).

77. A current limitation of section 10 is that it does not provide for a situation in which a particular provision or provisions are repealed and re-enacted, as opposed to an entire Act. For example, if section 5A of the hypothetical ' Pears Act 2005' is re-enacted as section 6, there is no provision to read a reference to former section 5A as a reference to the new section 6. This amendment fixes this problem to ensure the continuation and effectiveness of a cross-reference to a provision in the same way that cross-references to Acts are currently provided for.

78. A similar amendment is being made to section 10A at item 19.

Item 17 - Section 10A

79. This amendment removes the words 'unless the contrary intention appears' from section 10A due to the amendments made to section 2 by item 3.

Item 18 - Paragraph 10A(b)

80. Item 18 deletes the text in paragraph 10A(b) starting at 'and, where, in connection' through to 'corresponding provisions'. Item 19 inserts replacement text into a new paragraph 10A(c).

Item 19 - At the end of section 10A

81. Section 10A concerns references to amended or re-enacted laws of States and Territories. Item 19 inserts a new paragraph 10A(c) to replace and extend the text currently found in paragraph 10A(b) (being removed by item 18).

82. A current limitation of section 10A is that it does not provide for a situation in which a particular provision or provisions is repealed and re-enacted, as opposed to an entire Act. For example, if section 5A of the hypothetical ' Pears Act 2005' is re-enacted as section 6, there is no provision to read a reference to former section 5A as a reference to the new section 6. This amendment fixes this problem to ensure the continuation and effectiveness of a cross-reference to a provision in the same way that cross-references to Acts are currently provided for.

83. A similar amendment is being made to section 10 at item 16.

Item 20 - Section 11

84. Section 11, which deals with the expiration of an Act, is being repealed because the new section 7 (see item 13) covers the situation to which section 11 is directed. Under new subsection 7(2) expiration of an Act or provision does not affect any legal proceeding or remedy in respect of any right, privilege, obligation, liability, penalty, forfeiture or punishment. Further, any such legal proceeding or remedy may be instituted or enforced, and any such penalty, forfeiture or punishment imposed as if the Act had not expired.

85. While section 11 is technically broader, as a civil proceeding need not concern a right, privilege, obligation, liability, penalty, forfeiture or punishment to remain on foot, in practice a legal proceeding would always concern one of these things. As such, section 11 is redundant.

86. Item 20 also relocates existing sections 14, 14A and 15 to the end of Part 4. These provisions deal with the amendment of Acts and logically sit under 'Part 4 - Amendment, repeal and expiry of Acts'. Locating these provisions with sections 10 and 10A will make the provisions easier to find and understand than in their current location in Part IV (General provisions) (which is re-named 'Part 5 - General interpretation rules' - see item 21).

87. Item 20 relocates existing section 14 (new section 11) to Part 4 without amendment.

88. Item 20 modifies existing section 14A (new section 11A) to provide that when a new definition is added to an Act, or a new item is added into an existing list or table in an Act that is organised alphabetically, in both instances the addition should be made in alphabetical order (existing section 14A currently provides that this is the case for definitions, but does not deal with adding items to a list or table).

89. Finally, item 20 modifies existing section 15 (new section 11B) to clarify how the provision is intended to operate for the purposes of working out the meaning of

(a)

terms used in an amending Act that amends two or more Acts; or

(b)

terms that are used in an amending Act and are defined for only some provisions (or are defined differently for different provisions) of the amended Act.

90. New subsection 11B(2) is intended to clarify that terms used in non-amending provisions of amending Acts have the same meanings as in the principal Act. This is particularly relevant where a single amending Act amends several principal Acts. For example, suppose item 1 of an amending Schedule amends a provision of the Criminal Code Act 1995 that defines 'serious offence' and item 2 of the amending Schedule says that the amendment made by item 1 applies to serious offences committed on or after commencement. Proposed subsection 11B(2) would mean that the term 'serious offence' can be used in item 2 without definition as it would have the same meaning as in the provision of the Criminal Code Act 1995 .

Item 21 - Part IV (heading)

91. Item 21 renames what is currently titled 'Part IV General provisions' so it instead becomes 'Part 5 - General interpretation rules'. The change to the name is to better reflect the revised content of the part. The fourth part of the Act becomes the fifth due to the insertion of the new Part 2 dealing with definitions (see item 4) and the Roman numeral is removed as the numbering of all parts of the Act is being updated to Arabic numbering to reflect current drafting practice.

Item 22 - Sections 13 to 15

92. Item 22 repeals sections 13 to 15 and inserts a new section 13. Item 20 relocates sections 14, 14A and 15 to Part 4. Section 14B has been repealed.

93. New section 13 states that all material in an Act, from the first section to the end of the last Schedule, is part of the Act. Certain material appearing before section 1 is also part of the Act. New section 13 is intended to capture all headings (including the heading to the first section of the Act) and explanatory notes within the Act. Historically in the United Kingdom and the Australian colonies, elements like marginal notes and section headings were added to the text of a Bill after passage through Parliament, and the current subsection 13(3) reflects this history. However, from federation, marginal notes and section headings have been included in Bills as part of the text considered by the Commonwealth Parliament. They are able to be amended by Parliament or under the supervision of Parliament. It is appropriate for this material to be treated as part of the Act, and given appropriate weight in interpreting the terms of the Act. This weight will ordinarily be less than the words of the section itself, given the function of such notes and section headings (see Wacando v The Commonwealth (1981) 148 CLR 1 at 16, Gibbs CJ).

94. New section 13 will apply to all Acts from the commencement of the amendment and will provide all material from and including the first section of an Act to the end of the last section of the Act or of the last Schedule to the Act is part of the Act. This means for example that section headings within the Act (which have been treated as not forming part of the Act because of existing subsection 13(3)) will become part of the Act from the commencement of the amendment. This is unlikely to have the effect that material that was not included in the text of a Bill presented before the Commonwealth Parliament will become part of existing Acts, given that the practice has in fact been to include this material in the text of the Bill presented to Parliament. Rather, the effect will simply be that words in Acts which were in the text of a Bill presented to Parliament will now be treated as part of the Act.

95. This change is likely to make little practical difference to the interpretation of Commonwealth Acts. Currently anything in the text of an Act can be taken into account in the interpretation of the Act, even if it does not form part of the Act under existing subsection 13(3) (see paragraph 15AB(2)(a)). New section 13 will enable section headings and explanatory notes within the Act, as set out in new section 13, to be used in interpreting the Act without the need for recourse to section 15AB.

96. New section 13 would not prescribe how much weight (if any) should be given to particular material forming part of an Act in interpreting the Act. Of course, primacy should normally be given to the substantive provisions of an Act over headings and explanatory notes in interpreting an Act.

97. When an Act is published (in electronic or printed form), end notes and other references or information are often added. This information is not part of the Act (though it may form part of the context for interpretation under section 15AB of the Acts Interpretation Act).

98. Section 14B, which concerns the commencement of paragraphs etc. in amending Acts, is being repealed. The Office of Parliamentary Counsel generally include at section 2 and 3 of an amending Bill, provisions that outline the specific commencement dates for each provision of an Act (including amendments to items in a Schedule to an Act). As this covers what is currently achieved by section 14B, this section is no longer required.

Item 23 - Section 15AA

99. Section 15AA, which deals with interpretation of Acts, is currently expressed in absolute terms, ie. a construction that will promote the purpose of an Act is to be preferred to one that will not. Section 15AA does not address the situation where there is a choice between two or more constructions that will promote Parliament's purpose.

100. The limited nature of section 15AA was confirmed by three High Court judges in a case on the equivalent Victorian provision (see Chugg v Pacific Dunlop Pty Ltd (1990) 95 ALR 481 at 489, Dawson, Toohey and Gaudron JJ).

101. Therefore section 15AA is being amended to provide that a court is to prefer the construction of an Act that will 'best achieve' the purpose or object of the Act.

Item 24 - Section 15AD

102. Section 15AD provides that examples in Commonwealth Acts are not exhaustive and if an example in a Commonwealth Act 'is inconsistent with the provision, the provision prevails'. The paragraph about examples not being exhaustive is being retained (paragraph 15AD(a)), but paragraph 15AD(b) is being amended so that instead of inconsistent examples being overridden by the provision, examples will be specified as not exhaustive and also capable of extending the operation of provisions.

103. If Parliament has enacted an example in a Commonwealth Act, this shows an intention that the example should be covered whether or not it strictly falls within the scope of the provision. However, the amended provision will state that the example ' may extend the operation of the provision' so that a court can assess whether this is in fact appropriate when interpreting a particular provision that includes an example.

104. The amendment brings the Acts Interpretation Act in line with more recent Acts Interpretation Acts in the States and Territories. For an example of a similar provision, see subsection 132(1) of the Australian Capital Territory Legislation Act 2001 .

Item 25 - Subsections 15B(1) to (3)

105. Section 15B of the Acts Interpretation Act is about the application of Acts in the coastal sea. Subsections (1) to (3) are being re-written in clearer language (and will become subsections (1), (2), (3) and (3A)). It is not intended that the effect of this provision will change.

106. The heading 'Definition' is also being inserted before subsection 15B(4) as this subsection contains a definition of 'coastal sea'.

Item 26 - Paragraph 15C(b)

107. This amendment removes the words 'except so far as the contrary intention appears' from paragraph 15C(b) due to the amendments made to section 2 by item 3.

Item 27 - Part V (heading)

108. Item 27 removes the heading 'Part V Words and references in Acts'. Many of the provisions in this Part have been relocated to the new Part 2 dealing with definitions (see item 4). The remaining provisions fit well within the new title of Part 5, which is 'General interpretation rules'.

Item 28

- Section 16

109. This amendment removes the words 'unless the contrary intention appears' from section 16 due to the amendments made to section 2 by item 3.

Item 29 - Section 16A

110. This amendment removes the words 'unless the contrary intention appears' (wherever occurring) from section 16A due to the amendments made to section 2 by item 3.

Item 30 - Section 16B

111. This amendment removes the words 'unless the contrary intention appears' from section 16B due to the amendments made to section 2 by item 3.

Item 31 - Subsection 16C(2)

112. This amendment removes the words 'unless the contrary intention appears' from subsection 16C(2) due to the amendments made to section 2 by item 3.

Item 32 - Subsection 16C(3)

113. This amendment removes the words 'Unless the contrary intention appears, a' from subsection 16C(3) and substitutes these with 'A' due to the amendments made to section 2 by item 3.

Item 33 - Sections 17, 17AA and 18

114. Sections 17 and 17AA are being repealed because all the definitions contained in these sections have been moved to the new 'Part 2 Definitions' inserted by this Bill (see item 4). The only exception is the definition of The Constitution Act currently found in paragraph 17(d) (which is defined to mean the ' Commonwealth of Australia Constitution Act' ). There is only one reference to the ' Constitution Act' in Commonwealth legislation, which is found in the Preamble to the Northern Territory Acceptance Act 1910 . That reference is replaced with the ' Commonwealth of Australia Constitution Act' by Schedule 2 to this Bill, therefore the definition is no longer needed.

115. Section 18 is being repealed because the definition of The United Kingdom has been moved to the new 'Part 2 - Definitions' inserted by this Bill (see item 4) and the definition of British possession is being moved to the Crimes Act 1914 , as this term is only used in the Crimes Act.

Item 34 - Section 18A

116. This amendment removes the words 'unless the contrary intention appears' from section 18A due to the amendments made to section 2 by item 3.

Item 35 - Section 18B

117. Item 35 re-writes section 18B, about chair and deputy chair titles (eg. Chair, Chairperson, deputy Chairman, Deputy Chairwoman), in clearer language.

Item 36 - Section 18C

118. Item 36 repeals section 18C. Section 18C, concerning Ministerial authorisation to perform statutory functions or powers, is being moved to before section 34AA (see item 81) so that it is co-located with sections 34AA, 34AB and 34A which concern the delegation of statutory functions or powers.

Item 37 - Paragraph 19A(1)(ab)

119. Section 19A deals with when Commonwealth Acts make references to Ministers and Departments. Item 37 amends paragraph 19A(1)(ab) to make it clear that where an Act refers to a particular Minister and there is no longer any such Minister, this is also covered by subsection 19A(1). In those circumstances, the reference will be taken, subject to a contrary intention, to be a reference to the administering Minister (or any one of the administering Ministers if there is more than one). This will allow the relevant Minister or Ministers to be determined by reference to the Administrative Arrangements Order, without the need for an order to be made under section 19B.

Item 38 - Subsection 19A(1)

120. This amendment removes the words 'unless the contrary intention appears' from subsection 19A(1) due to the amendments made to section 2 by item 3.

Item 39 - Subsection 19A(3)

121. Item 39 re-writes subsection 19A(3), which deals with when Commonwealth Acts makes references to Departments. The revised provision provides for situations when an Act refers to a particular Department (in the same way as subsection 19A(1) deals with references to a particular Minister) and is drafted more clearly.

122. Particular Departments (or Ministers) are not generally specified in legislation, however some specific references will remain. The effect of this amendment will be that where legislation refers to a particular Department, including a Department that no longer exists, then subject to a contrary intention, the reference to the particular Department will be taken to be a reference to the administering Department. This will avoid the need for an order to be made under section 19B or 19BA when a particular Department specified in legislation is abolished or its name is changed, or when there is a change in the matters dealt with by the Department under the Administrative Arrangements Order.

Item 40 - Subsections 19B(1), (2) and (3)

123. Orders made under section 19B update references in legislation to a particular Minister, Department or Secretary of a Department where there is no longer such a Minister or the Department is abolished or name changed.

124. The modern approach to drafting is to refer as much as possible to the Minister or the Department or the Secretary of the Department generally, and not a specific named Minister or Department or Secretary. This allows section 19A and the Administrative Arrangements Order made by the Governor-General to determine the relevant Minister and Department and Secretary of the Department. However there are still a range of references to a specific Minister or Department or Secretary in legislation. Section 19B orders enable legislation which includes such specific references, but where there is no longer such a Minister or Department, to be read and operate consistently with responsibilities as allocated under the Administrative Arrangements Order without the need to amend the legislation, which can be a lengthy process.

125. Current orders operate 'on and from the date of the order'. They therefore cannot be retrospective. This amendment to subsections 19B(1), (2) and (3) allows the orders to apply retrospectively so that any past 'gaps' can be remedied. That is, the orders could update any references to Ministers, Departments and Secretaries (where there is no longer any such Minister or Department or office) in legislation that have not been appropriately and fully updated. In the absence of such a retrospective operation, where there are gaps in past orders, or their operation is unclear, legislation which includes specific references may not be able to have an effect, or its effect may be unclear, or it may not reflect the actual internal Commonwealth arrangements. To avoid such clearly inappropriate results, the ability to make retrospective orders is warranted.

126. There are other legislative provisions that allow for retrospectivity in the context of machinery of Government changes. For example, subsection 32(8) of the Financial Management and Accountability Act 1997 allows for the transfer of appropriations to be made retrospectively.

Item 41 - Subsections 19BA(1), (2) and (3)

127. Orders made under section 19BA update references in legislation to a particular Minister, Department or Secretary of a Department where they are inconsistent with changed arrangements under the Administrative Arrangements Order.

128. The modern approach to drafting is to as much as possible refer to the Minister or the Department or the Secretary of the Department generally, and not a specific named Minister or Department or Secretary. This allows section 19A and the Administrative Arrangements Order made by the Governor-General to determine the relevant Minister and Department and Secretary of the Department. However there are still a range of references to a specific Minister or Department or Secretary in legislation. Section 19BA orders update references in legislation to a particular Minister, Department or Secretary of a Department where there has been a change in the administration of the provision and the reference to that Minister or Department is no longer appropriate. This saves the need to amend the legislation, which can be a lengthy process.

129. Current orders operate 'on and from the date of the order'. They therefore cannot be retrospective. This amendment to subsections 19BA(1), (2) and (3) allows the orders to apply retrospectively so that any past 'gaps' can be remedied. That is, the orders could update any references to Ministers, Departments and Secretaries in legislation that have not been appropriately and fully updated to reflect changed arrangements under the Administrative Arrangements Order. In the absence of such a retrospective operation, where there are gaps in past orders, or their operation is unclear, legislation which includes specific references may not be able to have an effect, or its effect may be unclear, or it may not reflect the actual internal Commonwealth arrangements. To avoid such clearly inappropriate results, the ability to make retrospective orders is warranted.

130. There are other legislative provisions that allow for retrospectivity in the context of machinery of Government changes. For example, subsection 32(8) of the Financial Management and Accountability Act 1997 allows for the transfer of appropriations to be made retrospectively.

Item 42 - Subsection 19BB(2)

131. Section 19BB allows orders made under sections 19B and 19BA to be revoked by the Governor-General in whole or in part. Orders made under sections 19B and 19BA update references in legislation to a particular Minister, Department or Secretary of a Department so that they can be read consistently with responsibilities as allocated under the Administrative Arrangements Order.

132. Item 42 amends subsection 19BB(2) consistently with the amendments made to sections 19B and 19BA by items 40 and 41.

Item 43 - After section 19BC

133. Item 43 inserts a new section in the Acts Interpretation Act dealing with the validity of acts done by Ministers. New section 19BD is intended to cover situations where a function, duty or power is conferred on one Minister by an Act, and a second Minister purports to perform the function or duty or exercise the power. This might arise where there is a misunderstanding about allocation of responsibilities under the Administrative Arrangements Order, or in the orders made under section 19B and 19BA.

134. New section 19BD is limited to a power, function or duty that is imposed 'by an Act'. This includes impositions where the particular Minister is identified by operation of sections 19A, 19B, 19BA and new 34AAB (old 18C) of the Acts Interpretation Act itself. This provision (like other provisions) applies subject to a contrary intention (new subsection 2(2)). This provision (like other provisions) also has operation under subsection 46(1), and subsection 13(1) of the Legislative Instruments Act 2003.

135. New section 19BD does not validate acts done by the Minister purporting to perform a function or duty or exercise a power of another Minister for all purposes (that is, the act could be invalid for a range of other reasons). Further, it does not authorise or allow Ministers to perform functions or duties or exercise powers that do not fall within their areas of responsibility. For example, it does not overcome the need for an Administrative Arrangements Order to set out the internal government arrangements, which is then picked up by section 19A of the Act. These internal government administrative arrangements will still need to be put into place, and will operate to allocate Ministerial responsibilities.

136. New section 19BD merely provides that, in the event that a Minister does purport to perform a function or duty or exercise a power of another Minister, the action is not invalid merely for this reason (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355). Invalidity is not an appropriate result for a failure to comply with internal government administrative arrangements.

137. The provision is intended to operate consistently with the convention of collective responsibility, which is part of the Cabinet system of Government.

Item 44 - Section 20

138. This amendment removes the words 'unless the contrary intention appears' from section 20 due to the amendments made to section 2 by item 3.

Item 45 - Section 20

139. Section 20 of the Acts Interpretation Act deals with when an Act mentions an officer holding or occupying a particular office or position. For consistency, the amendment to section 20 clarifies that a person can 'hold' an office or position, as the wording currently only refers to 'occupy' an office or position.

Item 46 - Section 20

140. Section 20 of the Acts Interpretation Act deals with when an Act mentions an officer holding or occupying a particular office or position. Item 46 amends section 20 so that it no longer refers to 'said office'. Instead it will just say 'office' as the word 'said' is superfluous.

Item 47 - Subsection 21(1)

141. This amendment removes the words 'unless the contrary intention appears' from subsection 21(1) due to the amendments made to section 2 by item 3.

Item 48 - Sections 22 to 22C

142. Sections 22 to 22C are being repealed because all the definitions contained in these sections have been moved to the new 'Part 2 - Definitions' inserted by this Bill (see item 4).

Item 49 - Section 23

143. This amendment removes the words 'unless the contrary intention appears' from section 23 due to the amendments made to section 2 by item 3.

Item 50 - Section 25

144. Section 25 is being repealed because the definitions contained in this section ( document, record and writing) have been moved to the new 'Part 2 - Definitions' inserted by this Bill (see item 4).

Item 51 - Subsection 25B(1)

145. This amendment removes the words 'unless the contrary intention appears' from subsection 25B(1) due to the amendments made to section 2 by item 3.

Item 52 - Subsection 25B(1A)

146. This amendment removes the words 'unless the contrary intention appears' from subsection 25B(1A) due to the amendments made to section 2 by item 3.

Item 53 - Subsection 25B(2)

147. This amendment removes the words 'unless the contrary intention appears' from subsection 25B(2) due to the amendments made to section 2 by item 3.

Item 54 - Section 25C

148. This amendment removes the words 'unless the contrary intention appears' from section 25C due to the amendments made to section 2 by item 3.

Item 55 - Section 25E

149. Item 55 repeals section 25E. Section 25E, which deals with how the attainment of a particular age is assessed, is being moved to Part 8 (see item 95) as it is currently located with an unrelated provision on the content of statements of reasons for decisions. The content of section 25E fits more logically with the other provisions in Part 8 concerning distance and time. The content of section 25E is not being changed.

Item 56 - Part VI (heading)

150. The heading of Part VI is being changed from 'Judicial expressions' to 'Part 6 - Service of documents' because the definitions in sections 26, 27, 27A and 28 have been moved to the new 'Part 2 - Definitions' inserted by this Bill (see items 4 and 57). The remaining sections in this Part (sections 28A and 29) both deal with service of documents, therefore this is an appropriate new heading for this Part of the Acts Interpretation Act. The numbering of all the Parts in the Acts Interpretation Act is being updated to Arabic numbering to reflect current drafting practice.

Item 57 - Sections 26 to 28

151. Sections 26 to 28 are being repealed because all the definitions contained in these sections have been moved to the new 'Part 2 - Definitions' inserted by this Bill (see item 4).

Item 58 - Subsection 28A(1)

152. This amendment removes the words 'unless the contrary intention appears' from subsection 28A(1) due to the amendments made to section 2 by item 3.

Item 59 - At the end of subsection 28A(1)

153. Section 28A of the Acts Interpretation Act deals with service of documents. A note is being added to provide a cross-reference to the Electronic Transactions Act 1999 , which is an Act of general application and enables a requirement that information be provided 'in writing' under Commonwealth legislation, to be fulfilled via electronic means. The operative provision of the Act, section 8, ensures that a transaction is not invalid merely because it took place via electronic means. This reflects the general rule of 'functional equivalence' and is based on Article 5 of the 1996 United Nations Commission on International Trade Law (UNCITRAL) Model Law on Electronic Commerce.

154. 'Functional equivalence' provides that there should be no disparity of treatment between electronic communications and paper-based transactions, and that information should not be denied legal effectiveness, validity or enforceability solely on the grounds that it is in an electronic form.

155. The Electronic Transactions Act also embodies the principle of 'technology neutrality', which generally provides that no communication technique is excluded from the scope of the Electronic Transactions Act since future technological developments need to be accommodated.

156. However, the Electronic Transactions Act specifically exempts documents relating to citizenship and migration law from the application of the Electronic Transactions Act. The Act also allows for further exceptions to be made via the regulations, which currently provide exemptions across more than 150 pieces of legislation. An exemption is granted where there are strong policy justifications to do so; for example, where documents carry a high risk of document fraud, where an agency does not have the technology or procedures in place to ensure secure transmission of information, or where it is important to ensure that there is only one paper-based document.

157. Section 8 is a general rule and as such does not restrict the operation of other, more specific, provisions within the Electronic Transactions Act. Division 2 of that Act outlines the conditions to be met in order for a person to fulfil a requirement under a law of the Commonwealth to give information in writing, provide a signature, produce a document or retain information. Section 13 of the Electronic Transactions Act explains that Division 2 does not affect the application of the Evidence Act 1995 or the giving of evidence in a court proceeding.

158. Finally, Division 3 of the Electronic Transactions Act clarifies the rules for determining the time and place of dispatch and receipt concerning electronic communications, as well as those for attributing the originator of an electronic communication. These are default rules that apply in the absence of an agreement by the parties.

Item 60 - Subsection 29(1)

159. This amendment removes the words 'unless the contrary intention appears' from subsection 29(1) due to the amendments made to section 2 by item 3.

Item 61 - Subsection 29(1)

160. This is a technical amendment to subsection 29(1) which inserts additional commas between the words 'addressing' and 'prepaying', and the words 'proved' and 'to', and moves the comma before the word 'and' to the correct position in the sentence - that is, after the 'and'.

Item 62 - Part VII (heading)

161. Item 62 changes the name of the Part of the Acts Interpretation Act currently titled 'Part VII - Powers conferred and duties imposed by Acts' to 'Part 7 - Powers, functions and duties'. This is a clearer title for this Part and the Roman numeral is removed as the numbering of all parts of the Act is being updated to Arabic numbering to reflect current drafting practice.

Item 63 - Subsection 33(1)

162. Section 33 deals with the exercise of powers and duties. The section makes inconsistent references to powers, functions and duties - for example, subsection 33(1) only refers to an Act conferring a power or imposing a duty, whereas subsection 33(2B) refers to an Act conferring a power or function or imposing a duty.

163. Subsection 33(1) is being amended so that it refers to 'a power or function or imposes a duty'. The heading to section 33 is also being updated to refer to 'functions' in addition to 'powers' and 'duties'.

Item 64 - Subsection 33(1)

164. This amendment removes the words 'unless the contrary intention appears' from subsection 33(1) due to the amendments made to section 2 by item 3.

Item 65 - Subsection 33(1)

165. Item 63 above amends the first part of subsection 33(1) so that it refers to 'a power or function or imposes a duty'. Item 65 amends the second part of subsection 33(1) so it makes a corresponding reference to performing a function.

Item 66 - Subsections 33(2) and (2AA)

166. Subsections 33(2) and (2AA), which deal with situations where an Act confers a power or imposes a duty on the holder of an office, are being moved to after section 34 to become new section 34AAA (see item 80). This is so that they are co-located with sections 34AA, 34AB and 34A which concern the delegation of statutory functions or powers.

167. Subsection 33(2A) defines the word 'may' for the purpose of interpreting Acts assented to after the commencement of the subsection. As section 33 contains a number of subsections, a heading will be added to subsection 33(2A) that says 'Meaning of may' so that this subsection is easier to locate.

168. Subsection 33(2B) deals with powers, functions or duties of bodies where there is a vacancy in the membership of the relevant body. As section 33 contains a number of subsections, a heading will be added to subsection 33(2B) that says 'Powers, functions and duties of bodies not affected by membership vacancies' to make the subsection easier to locate.

Item 67 - Subsection 33(3)

169. Subsection 33(3) provides that where an Act confers a power to 'make, grant or issue any instrument', in certain circumstances this includes the power to 'repeal, rescind, revoke, amend or vary' the instrument. This subsection has been interpreted by some judges as only applying to instruments of a legislative character (see, for example, Australian Capital Equity v Beale (1993) 114 ALR 50), though generally courts and tribunals have taken the broader view (see, for example, Re Brian Lawlor Automotive Pty Ltd and Collector of Customs (1978) 1 ALD 167, Barton v Croner Trading Pty Ltd (1984) 54 ALR 541, Heslehurst v Government of New Zealand (2002) 189 ALR 99 and Nicholson-Brown v Jennings (2007) 241 ALR 179).

170. The lack of clarity in the case law was highlighted by the following observation by Justice Finkelstein in Leung v Minister for Immigration & Multicultural Affairs (1997) 150 ALR 76 at 84 (Beaumont and Heerey JJ concurred):

The circumstances in which s 33(3) of the Interpretation Act will be held to apply to reconsider the grant or issue of an instrument have not been finally settled. There are cases that have held that s 33(3) only applies to the grant or issue of a document of a legislative character: see e.g. Australian Capital Equities Pty Ltd v Beale (1993) 41 FCR 242 at 256-257; 114 ALR 50 per Lee J. There are other cases that support the view that the section can have application to the grant or issue of any instrument: see e.g. Re Brian Lawlor at 172 per Brennan J. It is not necessary to resolve this difference of opinion.

171. Subsequent case law has however generally confirmed the broader view.

172. Subsection 33(3) is being amended to explicitly state that this subsection applies to instruments 'of a legislative or administrative character'.

173. As section 33 contains a number of subsections, a heading will be added to subsection 33(3) that says 'Power to make instrument includes power to vary or revoke etc. instrument' to make the subsection easier to locate.

Item 68 - Subsection 33(3)

174. This amendment removes the words 'unless the contrary intention appears' from subsection 33(3) due to the amendments made to section 2 by item 3.

Item 69 - After subsection 33(3)

175. Subsection 33(3) provides that where an Act confers a power to 'make, grant or issue any instrument', where a power is 'exercisable in the like manner and subject to like conditions', it includes the power to 'repeal, rescind, revoke, amend or vary' the instrument.

176. There is some ambiguity in the wording of 'like manner' and 'like conditions'. Therefore a new subsection is being inserted directly after subsection 33(3) to make clear the operation of the requirement for like conditions in subsection 33(3) where there is a condition which must be satisfied for the making, granting or issuing of an instrument and can cease to be satisfied later. In this case, the requirement for like conditions for the repeal, recission or revocation is met if the condition is no longer satisfied.

Item 70 - Subsection 33(3A)

177. Subsection 33(3A) provides that where an Act confers a power to 'make, grant or issue any instrument' with respect to certain matters, the power can be construed as including a power to make, grant or issue the instrument for only some of the matters, or a certain class of matters.

178. At item 67 above, subsection 33(3) is being amended to explicitly state that this subsection applies to instruments 'of a legislative or administrative character'. Item 70 mirrors this by ensuring that subsection 33(3A) applies to instruments of a 'legislative or administrative character'.

179. As section 33 contains a number of subsections, a heading will be added to subsection 33(3A) that says 'Scope of powers in respect of matters' to make the subsection easier to locate.

Item 71 - After subsection 33(3A)

180. Item 71 inserts new subsections (3AB) and (3AC) into section 33.

181. Existing subsection 33(3A) provides that where an Act confers a power to 'make, grant or issue any instrument' with respect to certain matters, the power can be construed as including a power to make, grant or issue the instrument for only some of the matters, or a certain class of matters.

182. New subsection 33(3AB) will provide that where there is a power to make an instrument either 'specifying, declaring or prescribing a matter' or 'doing anything in relation to a matter', then the authority may identify the matter by reference to a class or classes of matter. This is the same as existing subsection 46(3). Consolidation of existing subsections 33(3A) and 46(3) ensures that provisions dealing with the exercise of powers to make instruments are located together and makes the information easier to access and understand.

183. New subsection 33(3AC) provides a definition of 'matter' for the interpretation of both subsections 33(3A) and (3AB) as these terms are currently undefined. The definition clarifies that a matter can be a 'thing, person or animal'. By virtue of the operation of paragraph 23(b) (which provides that 'words in the singular number include the plural'), 'matters' includes things, persons or animals.

Item 72 - Subsection 33(3B)

184. Subsection 33(3B) provides further guidance on how the power to 'make, grant or issue' instruments is to be interpreted. At items 67 and 70 above, subsections 33(3) and (3A) are being amended to explicitly state that these subsections apply to instruments 'of a legislative or administrative character'. Item 72 mirrors this by ensuring that subsection 33(3B) applies to instruments of a 'legislative or administrative character'.

Item 73 - Subsection 33(4)

185. This amendment removes the words 'unless the contrary intention appears' (wherever occurring) from subsection 33(4) due to the amendments made to section 2 by item 3.

186. As section 33 contains a number of subsections, a heading will be added to subsection 33(4) that says 'Power to make appointment to an office or place' to make the subsection easier to locate.

Item 74 - Subsection 33(4A)

187. Subsection 33(4A) provides a definition of appoint . This subsection is being repealed because item 75 inserts a clearer definition of the 'power to appoint'.

188. As section 33 contains a number of subsections, a heading will be added to subsection 33(5) that says 'Power to make instrument prescribing penalties' to make the subsection easier to locate.

Item 75 - After section 33

189. Item 75 inserts a new section 33AA which clarifies that the power to appoint includes a power to reappoint. This is not a departure from the current policy, as currently the definition in subsection 33(4A) provides this. However, current drafting practice is not to confer substantive powers in definitions.

190. Item 75 also inserts a new section 33AB to provide that anything done by or in relation to a person purporting to act under an appointment, including but not limited to an acting appointment, under an Act is not invalid merely because the occasion for the appointment had not arisen, there was a defect or irregularity in connection with the appointment, the appointment had ceased to have effect or, in the case of acting appointments, the occasion to act had not arisen or had ceased.

191. New section 33AB is inserted for the avoidance of doubt, and confirms the availability of the common law de facto officer doctrine. Where there is an unknown flaw in the appointment or authority of a public officer, the de facto officer doctrine operates to validate the acts of that officer, even though the officer's appointment is in fact invalid (see Cassell v The Queen (2000) 201 CLR 189 at 193, [19], Gleeson CJ, Gaudron, McHugh and Gummow JJ).

192. In confirmation of the operation of this doctrine, new section 33AB is intended to ensure that irregularities or defects in an appointment do not invalidate the past acts of the appointee, even if those irregularities or defects could be such as to invalidate the appointment. The reference to 'purporting to act' in new section 33AB expressly contemplates that the provision operates in circumstances in which the appointment itself may be invalid. There are a range of circumstances in which section 33AB might apply, including where the appointer did not have the power to make the appointment, the appointer failed to observe a statutory procedure in making the appointment or the appointee was ineligible for appointment or to continue in a position.

193. It is important to note that section 33AB does not validate the appointment itself, and a person whose appointment is found to be invalid may not continue to act. Rather, the intention is to ensure that acts undertaken by a person who was considered to be properly appointed are not later invalidated if irregularities in that appointment are identified.

194. New section 33AB also validates acts done 'in relation to' a person purporting to act under a defective or irregular appointment. The reference to acts done 'in relation to' such an appointee is intended to ensure that, for example, payments for services rendered by such an appointee are not invalid.

195. This provision (like other provisions), applies subject to a contrary intention (new subsection 2(2)). This provision (like other provisions) also has operation under subsection 46(1), and subsection 13(1) of the Legislative Instruments Act 2003 .

Item 76 - Subsection 33A(2)

196. New subsections (2) - (4) are being added to section 33A to deal with acting appointments that are 'by operation of law'. For example, an Act may specify that in the absence of a Chief Executive Officer, the Deputy Chief Executive Officer is to Act in the position. This is a different scenario to where a person is appointed to act in a position, which is covered by new section 33AB.

197. Subsection (2) clarifies that while acting in the office the person has the same powers and must perform all the functions and duties as the holder of the office. This is an equivalent provision for acting arrangement by operation to law to the provision for other types of acting appointments provided for in existing paragraph 33A(1)(e) of the Acts Interpretation Act. Subsection (3) specifies that in situations where a person is acting by operation of law, the provision specifies that any action is not invalid simply because the occasion to act had not arisen or the occasion to act had ceased.

198. By including these provisions in the Acts Interpretation Act, they will not need to be repeated in other Commonwealth legislation.

199. Subsection (4) inserts a definition of 'office' for the purposes of section 33A.

200. The heading of section 33A is being changed from 'Acting appointments' to 'Acting in offices or positions' as this more accurately describes the new content of the provision due to the insertion of extra subsections by this item.

201. The heading of subsection 33A(1) will become 'Acting appointments' so that the existing provision for acting appointments is easy to locate.

Item 77 - At the end of subsection 33B(3)

202. Section 33B deals with participation in meetings by telephone and other methods of communication, for example, Skype or video-conferencing. This amendment clarifies that a person who participates by telephone or other means of communication (pursuant to subsection 33B(2)) can be considered part of the quorum of the meeting. This is implied by the existing wording of subsection 33B(3), which specifies that a person participating by telephone or other means of communication 'is taken to be present at the meeting', but this amendment makes their position explicit.

Item 78 - Subsection 33B(4)

203. Section 33B deals with participation in meetings by telephone and other methods of communication, for example, Skype or video-conferencing. The amendment provides that all participants may be given permission to participate by telephone or other means of communication pursuant to subsection 33B(2). New subsections 33B(4) and (5) allow for a meeting to be held in two or more places at the same time. This allows a meeting to take place where the participants are in different locations and provides meeting organisers with more flexibility.

Item 79 - Section 34

204. Section 34 deals with the administering of oaths by courts, judges and others. This section is being expanded to include a reference to affirmations as it is accepted practice to give witnesses the choice as to whether they take an oath or make an affirmation.

205. For example, section 23 of the Evidence Act 1995 provides:

(1)

A person who is to be a witness or act as an interpreter in a proceeding may choose whether to take an oath or make an affirmation .

(2)

The court is to inform the person that he or she has this choice .

(3)

The court may direct a person who is to be a witness to make an affirmation if :

(a)

the person refuses to choose whether to take an oath or make an affirmation; or

(b)

it is not reasonably practicable for the person to take an appropriate oath .

The heading to section 34 is also being amended to reflect that the section covers more than just the authority to administer an oath.

Item 80 - After section 34

206. Item 80 moves existing subsection 33(2), which deals with the exercise of powers etc. by holders etc. of offices or positions so that it becomes new section 34AAA. The content is not being changed. Moving this material will make it easier for users of the Acts Interpretation Act to locate.

Item 81 - Before section 34AA

207. Existing section 18C, concerning Ministerial authorisation to perform statutory functions or powers, is being moved to after new section 34AAA (inserted by item 80) so that it is co-located with sections 34AA, 34AB and 34A which concern the delegation of statutory functions or powers. Authorisation and delegation are closely related mechanisms of administration, both relating to the designation of particular persons or bodies to carry out certain functions or powers. Locating these provisions near one another enhances the ability of the user to read and understand these provisions.

208. There are some minor changes to the wording of this section, but these are to make the section clearer and are not intended to change the effect of the provision.

Item 82 - Section 34AA

209. Section 34AA deals with delegations. The section currently makes inconsistent references to 'powers', 'functions' and 'duties'. The section is being amended by items 82, 84 and 85 so it refers to 'function, duty or power' in all relevant instances.

Item 83 - Section 34AA

210. This amendment removes the words 'unless the contrary intention appears' from section 34AA due to the amendments made to section 2 by item 3.

Item 84 - Section 34AA

211. Section 34AA deals with delegations. The section currently makes inconsistent references to 'powers', 'functions' and 'duties'. The section is being amended by items 82, 84 and 85 so it refers to 'function, duty or power' in all relevant instances.

Item 85 - Section 34AA

212. Section 34AA deals with delegations. The section currently makes inconsistent references to 'powers', 'functions' and 'duties'. The section is being amended by items 82, 84 and 85 so it refers to 'function, duty or power' in all relevant instances.

Item 86 - Section 34AB

213. Item 86 inserts '(1)' before the text in section 34AB with the heading 'General'. This is because item 89 inserts a subsection (2) into section 34AB.

Item 87 - Section 34AB

214. Section 34AB deals with the effect of a delegation. The section currently refers to 'functions' or 'powers', but not 'duties'. The section is being amended by items 87 and 88 so it refers to 'function, duty or power' (except in paragraph (b) which specifically refers to the power to delegate) so that it is consistent with other sections in the Acts Interpretation Act (see for example the amendments to section 34AA being made by items 82, 84 and 85).

Item 88 - Paragraphs 34AB(c) and (d)

215. Section 34AB deals with the effect of a delegation. The section currently refers to 'functions' or 'powers', but not 'duties'. The section is being amended by items 81 and 88 so it refers to 'function, duty or power' (except in paragraph (b) which specifically refers to the 'power to delegate') so that it is consistent with other sections in the Acts Interpretation Act (see for example the amendments to section 34AA being made by items 82, 84 and 85).

Item 89 - At the end of section 34AB

216. Item 89 adds a new subsection (2) to section 34AB (which deals with the effect of a delegation) that makes it clear that a delegation expressed to extend to all the powers, functions or duties under a given Act or part of an Act extend to a power, function or duty included in that Act or part that has come into existence after the delegation is made. This provides greater certainty for delegated functions, duties and powers.

217. This amendment specifically addresses the concern raised by Chief Justice Street in the unreported decision of the New South Wales Court of Criminal Appeal case of Australian Chemical Refinery Pty Ltd v Bradwell (28 February 1986). Street CJ indicated that there was a strong common law presumption that a delegation does not extend to a power that comes into existence after the delegation is made, even if within the literal words of the delegation.

218. This was in contrast to the generally accepted position under the Acts Interpretation Act that delegations could encompass subsequently enacted powers based on section 10 of the Acts Interpretation Act which allows from 'time to time' references which, under section 46 of the Acts Interpretation Act, can be included in instruments. Given the importance of delegations to Commonwealth administration, it was important that this issue be dealt with explicitly.

219. Item 89 also adds a new subsection 34AB(3) to provide that when an Act amends the scope of a function, duty or power that has been delegated, the delegation is taken to include the altered function, duty or power.

220. This provision does not prevent a delegate from reviewing a delegation when new powers, functions or duties are enacted and amending the delegation if they want to ensure that that new or altered function, duty or power remains solely with them.

Item 90 - Section 34A

221. Section 34A provides for the exercise of certain powers, functions or duties by a delegate. The section has been re-written to make it clearer and to ensure that it covers the exercise of a power, or performance of a function or duty. The meaning of the section has not been changed.

Item 91 - Part VIII (heading)

222. Item 91 changes the heading of 'Part VIII - Distance and time' to 'Part 8 - Distance, time and age'. This is because item 95 inserts a provision about the attainment of a particular age into Part 8, therefore the modified heading will more comprehensively describe the content of Part 8. The Roman numeral is removed as the numbering of all parts of the Act is being updated to Arabic numbering to reflect current drafting practice.

Item 92 - Section 35

223. This amendment removes the words 'unless the contrary intention appears' from section 35 due to the amendments made to section 2 by item 3.

Item 93 - Section 36

224. Section 36, which deals with how time periods are to be calculated, is being modernised by use of a table to show how different scenarios are to be interpreted in Commonwealth Acts and provides examples for each of the items in the table. It is intended to capture a broader range of situations that are likely to arise from time to time - such as where an Act specifies a period for doing something and the place for doing the thing is closed on the first or last day of doing that thing.

225. The rationale for the amendment is to make section 36 more user friendly. It does not substantively change the existing policy.

Item 94 - Section 37

226. Section 37 deals with expressions of time. This amendment removes the reference to 'standard time' so that only the reference to 'legal time' remains. This is due to the variation in the way 'standard time' is interpreted currently.

227. In some Australian jurisdictions, references to 'standard time' are taken to be references to summer time during summer, for example, section 10 of the New South Wales Standard Time Act 1987 . In those jurisdictions, 'standard time' includes 'summer time'.

228. In other jurisdictions, 'summer' or 'daylight saving time' is employed as a separate concept to 'standard time', for example, section 5 of the Australian Capital Territory Standard Time and Summer Time Act 1972 .

229. Due to these variations, drafters have adopted the practice of using 'legal time' only, therefore it is appropriate that the Acts Interpretation Act be amended.

Item 95 - At the end of Part VIII

230. This amendment moves existing section 25E, which deals with how the attainment of a particular age is assessed, into Part 8 as it fits more logically with the other provisions in Part 8 (about distance and time). The content of section 25E is not being changed.

Item 96 - Part IX (heading)

231. Item 96 removes the Roman numeral from the title of 'Part IX - Citation of Acts' so it becomes 'Part 9 - Citation of Acts'. All Roman numerals in the titles of parts of the Acts Interpretation Act are being updated.

Item 97 - At the end of section 38

232. Section 38 deals with how various Acts are referred to; for example, subsection 38(3) specifies that 'an Act passed by the Parliament of a State may be referred to by the term "State Act"'. A new subsection is being added to provide that Acts made by Territory legislatures may be called a 'Territory Act'.

Item 98 - Section 39

233. Section 39 refers to the 'King's assent'. As Australia currently has a Queen, rather than a King, and to avoid the need to update this section any time this changes in the future, the provision is being amended to refer to the 'Sovereign's assent'. Pursuant to section 16 of the Acts Interpretation Act (which deals with the interpretation of references to the Sovereign in Acts), this will be interpreted as a reference to the Sovereign at the time.

Item 99 - At the end of subsection 40(1)

234. Section 40 concerns the citation of various kinds of Acts, for example Imperial Acts (paragraph (b)) and State Acts (paragraph (c)). A paragraph (d) is being added about Territory Acts, which are not currently referred to by this subsection. This is consistent with the amendment at item 97.

Item 100 - Subsection 40(2)

235. Item 99 inserts a reference to 'Territory Acts' in subsection 40(1), which currently only deals with Acts, State Acts and Imperial Acts. This amendment to subsection 40(2) ensures that Territory Acts are included to reflect the amendment to subsection 40(1).

Item 101 - Subsections 40(3) and (4)

236. Subsection 40(3) requires that the citation of Acts is to be in accordance with the versions of Acts printed by 'the Government Printer of the Commonwealth or State, or of the King's Printer in London'. The effect of subsection (3) had become uncertain as several States no longer refer to the Government Printer in their own law. Subsections 40(3) and 40(4) are being removed because they are not necessary. In determining whether a citation is accurate, courts will in any case have recourse to the authoritative versions of the Acts under the law of the relevant jurisdiction. For laws of other jurisdictions, recognition of these versions is dealt with in section 174 of the Evidence Act 1995 .

237. The authority of texts of Commonwealth legislation is dealt with in the Evidence Act 1995 and the Acts Publication Act 1905 .

Item 102 - Part XI (heading)

238. Item 102 removes the Roman numeral from the title of 'Part XI - Non-legislative instruments and resolutions' so it becomes 'Part 10 - Non-legislative instruments and resolutions'. There is currently no Part 10 in the Act, so this ensures the parts are numbered sequentially and all Roman numerals in the titles of parts of the Acts Interpretation Act are being updated.

Item 103 - Subsection 46(1)

239. This amendment removes the words 'unless the contrary intention appears' from subsection 46(1) due to the amendments made to section 2 by item 3.

Item 104 - Paragraphs 46(1)(b) and (c)

240. Section 46 deals with the construction of instruments. There are often instances where a term is defined in an Act and then an instrument is made under the Act which uses the term (without separately defining the term in the instrument), then the definition in the Act gets changed. There is then a question about the interpretation of the particular term in the instrument.

241. The High Court decision in Birch v Allen (1942) 65 CLR 621 held that the term in the instrument changes when the term in the Act changes.

242. To reflect the possibility of changes of this kind, paragraphs 46(1)(b) and (c) (which specify that expressions in instruments have the same meaning as the enabling legislation and should be construed subject to the enabling legislation), are being amended so that they refer to the enabling legislation 'as in force from time to time'.

243. A corresponding amendment to subsection 13(1) of the Legislative Instruments Act is being made by item 111 of Schedule 1 to this Bill.

Item 105 - Subsection 46(2)

244. Section 46 deals with the construction of instruments. Subsection 46(2) deals with instruments that are construed as being in excess of the authority's power and this subsection validates the instrument to the extent that it is within power. This amendment is a technical amendment that fixes an incorrect reference to subsection 46(1) in subsection 46(2), replacing it with the correct reference to subsection 46(2).

Item 106 - Subsection 46(3) (not including the note)

245. Subsection 46(3) is being moved to after subsection 33(3A) (see item 71).

Item 107 - Subsection 46AA(1)

246. This amendment removes the words 'unless the contrary intention appears' from subsection 46AA(1) due to the amendments made to section 2 by item 3.

Item 108 - Subsection 46AA(2)

247. This amendment removes the words 'unless the contrary intention appears' from subsection 46AA(2) due to the amendments made to section 2 by item 3.

Item 109 - Section 47

248. This amendment removes the words 'unless the contrary intention appears' from section 47 due to the amendments made to section 2 by item 3.

Item 110 - Part XII (heading)

249. Item 110 removes the Roman numeral from the title of 'Part XII - Regulations' so it becomes 'Part 11 - Regulations'. There is currently no Part 10 in the Acts Interpretation Act, so item 102 renumbers Part 11 as Part 10, and item 110 renumbers Part 12 as Part 11 to ensure the parts are numbered sequentially. All Roman numerals in the titles of Parts of the Acts Interpretation Act are being updated.

Legislative Instruments Act 2003

Item 111 - Paragraphs 13(1)(b) and (c)

250. Section 13 of the Legislative Instruments Act deals with the construction of legislative instruments. It does the same thing for legislative instruments as section 46 of the Acts Interpretation Act does for non-legislative instruments.

251. There are often instances where a term is defined in an Act and then an instrument is made under the Act which uses the term (without separately defining the term in the instrument), then the definition in the Act gets changed. There is then a question about the interpretation of the particular term in the instrument.

252. The High Court decision in Birch v Allen (1942) 65 CLR 621 held that the term in the regulation changes when the term in the Act changes.

253. To reflect the possibility of changes of this kind, paragraphs 13(1)(b) and (c) (which specify that expressions in instruments have the same meaning as the enabling legislation and should be construed subject to the enabling legislation), are being amended so that they refer to the enabling legislation 'as in force from time to time'.

254. A corresponding amendment to subsection 46(1) of the Acts Interpretation Act is being made by item 104 of Schedule 1 to this Bill.

Item 112 - Subsection 13(2)

255. Subsection 13(2) of the Legislative Instruments Act does the same thing for legislative instruments as subsection 46(2) of the Acts Interpretation Act does for non-legislative instruments. Item 105 above is a technical amendment to subsection 46(2) that fixes an incorrect reference to subsection 46(1) in subsection 46(2), replacing it with the correct reference to subsection 46(2). This item corrects the same defect in subsection 13(2) of the Legislative Instruments Act.

Item 113 - Subsection 13(3)

256. Item 71 adds a definition of 'matter' for the purposes of interpreting subsections 33(3A) and (3AB) of the Acts Interpretation Act. The definition clarifies that a matter can be a thing, person or an animal.

257. Subsection 13(3) of the Legislative Instruments Act deals with the construction of legislative instruments and refers to 'matter or thing'. Item 113 amends subsection 13(3) of the Legislative Instruments Act so that it refers to 'matter' for consistency with section 33 of the Acts Interpretation Act.

Item 114 - Subsection 13(3)

258. Item 71 adds a definition of 'matter' for the purposes of interpreting subsections 33(3A) and (3AB) of the Acts Interpretation Act. The definition clarifies that matters can include things, persons and animals.

259. Subsection 13(3) of the Legislative Instruments Act deals with the construction of legislative instruments and refers to 'classes of matters or things'. Item 114 amends subsection 13(3) of the Legislative Instruments Act so that it refers to 'classes of matters' for consistency with section 33 of the Acts Interpretation Act.

Item 115 - at the end of section 13 (before the note)

260. Item 71 adds a definition of 'matter' for the purposes of interpreting subsections 33(3A) and (3AB) of the Acts Interpretation Act. The definition clarifies that matters can include things, persons and animals.

261. Subsection 13(3) of the Legislative Instruments Act deals with the construction of legislative instruments and refers to 'matters or things'. Item 114 omits 'or things' from subsection 13(3). Item 115 inserts a new subsection 13(4) which defines 'matter' for the purposes of subsection 13(3) to include a 'thing, person and animal' for consistency with section 33 of the Acts Interpretation Act.

Item 116 - Section 13 (note)

262. Section 13 of the Legislative Instruments Act does the same thing for legislative instruments as section 46 of the Acts Interpretation Act does for non-legislative instruments.

263. Section 13 currently contains a note cross-referencing section 46 of the Acts Interpretation Act. As the content of subsection 46(3) is being moved to after subsection 33(3A) and will be the new subsection 33(3AB) (see item 71), this item updates the note to include a reference to subsection 33(3AB) as well as section 46 of the Acts Interpretation Act.