Statute Law Amendment Act 2005 (ACT)

Case

Statute Law Amendment Act 2005

A2005-20

Contents

Page

  1. Name of Act  2

  2. Commencement  2

  3. Purpose  2

  4. Notes  2

  5. Legislation amended—schs 1–3  3

Schedule 1Minor amendments  4

Part 1.1Dangerous Substances Act 2004  4

Part 1.2Domestic Animals Act 2000  9

Part 1.3Occupational Health and Safety Act 1989  9

Part 1.4Road Transport (General) Act 1999  13

Schedule 2Structural amendments  16

Part 2.1Legislation Act 2001  16

Part 2.2Legislation Regulation 2003  78

Schedule 3Technical amendments  80

Part 3.1Agents Act 2003  80

Part 3.2Agents Regulation 2003  83

Part 3.3Associations Incorporation Act 1991  84

Part 3.4Bail Act 1992  85

Part 3.5Births, Deaths and Marriages Registration Act 1997          85

Part 3.6Board of Senior Secondary Studies Act 1997                 105

Part 3.7Building Act 2004  128

Part 3.8Business Names Regulation 1966  128

Part 3.9Construction Occupations (Licensing) Act 2004             130

Part 3.10Coroners Act 1997  131

Part 3.11Court Procedures Act 2004  132

Part 3.12Crimes Act 1900  135

Part 3.13Crimes (Forensic Procedures) Act 2000  136

Part 3.14Cultural Facilities Corporation Act 1997  136

Part 3.15Dangerous Substances Act 2004  146

Part 3.16Domestic Animals Act 2000  150

Part 3.17Domestic Animals Regulation 2001  151

Part 3.18Duties Act 1999  152

Part 3.19Environment Protection Act 1997  154

Part 3.20Environment Protection Regulation 1997  156

Part 3.21Fair Trading Act 1992  156

Part 3.22Financial Management Act 1996  157

Part 3.23Food Act 2001  158

Part 3.24Food Regulation 2002  160

Part 3.25Gene Technology Regulation 2004  160

Part 3.26Gungahlin Drive Extension Authorisation Act 2004          161

Part 3.27Heritage Act 2004  161

Part 3.28Hotel School Act 1996  162

Part 3.29Intoxicated Persons (Care and Protection) Act 1994        162

Part 3.30Judicial Commissions Act 1994  170

Part 3.31Land (Planning and Environment) Act 1991  171

Part 3.32Land Tax Act 2004  173

Part 3.33Leases (Commercial and Retail) Act 2001  173

Part 3.34Long Service Leave (Building and Construction Industry) Act 1981       174

Part 3.35Magistrates Court Act 1930  176

Part 3.36Magistrates Court (Land Planning and Environment Infringement Notices) Regulation 2003  231

Part 3.37Magistrates Court (Sale of Residential Property Infringement Notices) Regulation 2004  232

Part 3.38Magistrates Court (Security Industry Infringement Notices) Regulation 2003     233

Part 3.39Magistrates Court (Trade Measurement Infringement Notices) Regulation 2002   234

Part 3.40Magistrates Court (Utilities Infringement Notices) Regulation 2002       235

Part 3.41National Environment Protection Council Act 1994          236

Part 3.42Nature Conservation Act 1980  236

Part 3.43Occupational Health and Safety Act 1989  238

Part 3.44Pharmacy Act 1931  239

Part 3.45Planning and Land Act 2002  240

Part 3.46Public Health Regulation 2000  240

Part 3.47Public Sector Management Act 1994  241

Part 3.48Rates Act 2004  243

Part 3.49Rehabilitation of Offenders (Interim) Act 2001                244

Part 3.50Remand Centres Act 1976  244

Part 3.51Residential Tenancies Amendment Act 2004                  245

Part 3.52Roads and Public Places Act 1937  245

Part 3.53Road Transport (Alcohol and Drugs) Act 1977               246

Part 3.54Road Transport (Dimensions and Mass) Act 1990           248

Part 3.55Road Transport (Driver Licensing) Act 1999                   249

Part 3.56Road Transport (General) Act 1999  253

Part 3.57Road Transport (Public Passenger Services) Act 2001      258

Part 3.58Road Transport (Safety and Traffic Management) Act 1999 260

Part 3.59Road Transport (Vehicle Registration) Act 1999              264

Part 3.60Road Transport (Vehicle Registration) Regulation 2000    269

Part 3.61Sale of Motor Vehicles Act 1977  270

Part 3.62Sale of Motor Vehicles Regulation 1977  273

Part 3.63Superannuation (Legislative Assembly Members) Act 1991 273

Part 3.64Supreme Court Act 1933  274

Part 3.65Supreme Court Rules 1937  274

Part 3.66Territory Owned Corporations Act 1990  275

Part 3.67Territory plan  275

Part 3.68Tertiary Accreditation and Registration Act 2003            276

Part 3.69Trustee Act 1925  277

Part 3.70Unit Titles Act 2001  292

Part 3.71Victims of Crime (Financial Assistance) Act 1983           296

Part 3.72Waste Minimisation Act 2001  296

Part 3.73Workers Compensation Act 1951  298

Part 3.74Workers Compensation Regulation 2002  298

Statute Law Amendment Act 2005

A2005-20

An Act to amend certain legislation for the purpose of statute law revision

The Legislative Assembly for the Australian Capital Territory enacts as follows:

  1. Name of Act

    This Act is the Statute Law Amendment Act 2005.

  2. Commencement

    (1)This Act commences 21 days after its notification day.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

    (2)However, a date or time provided by a special commencement provision for an amendment made by this Act has effect, or is taken to have had effect, as the commencement date or time of the amendment.

    (3)In this section:

    special commencement provision, for an amendment made by this Act, is a provision, in brackets beginning with the text ‘commencement:’, at the end of the amendment.

    Example

    An amendment followed by ‘(commencement:  8 March 2005)’ means that the amendment is taken to have commenced on 8 March 2005.

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

  3. Purpose

    The purpose of this Act is to improve the quality of the statute law of the Territory by amending Acts and regulations for the purpose of statute law revision.

  4. Notes

    A note included in this Act is explanatory and is not part of this Act.

    NoteSee the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

  5. Legislation amended—schs 1–3

    This Act amends the legislation mentioned in schedules 1 to 3.


Schedule 1Minor amendments

(see s 5)

Part 1.1Dangerous Substances Act 2004

[1.1]Section 86 (1), note 1

substitute

Note 1An inspector may issue a prohibition notice in relation to the site of a dangerous occurrence (see s 109 (2) (b) (ii)).

Explanatory note

This amendment is consequential on the remaking of section 109 by another amendment.

[1.2]Section 108, definition of basis

substitute

basis, for giving a prohibition notice, means—

(a)the contravention of this Act in relation to which the prohibition notice was given and the risk to be prevented or minimised under the notice (see section 109 (1)); or

(b)the contravention of the improvement notice in relation to which the prohibition notice was given (see section 109 (2) (a)); or

(c)the inspection, testing or monitoring to be allowed under the notice (see section 109 (2) (b) (i)); or

(d)the accident or other incident to be investigated under the notice (see section 109 (2) (b) (ii)).

Explanatory note

This amendment is consequential on the remaking of section 109 by another amendment.

[1.3]Section 109

substitute

  1. Giving prohibition notices

    (1)An inspector may give a notice (a prohibition notice) to a responsible person for a dangerous substance at premises if the inspector believes, on reasonable grounds, that—

    (a)someone at the premises has contravened, is contravening, or is likely to contravene, this Act in relation to the substance; and

    (b)giving the notice is necessary to prevent or minimise risk of serious harm to the health or safety of people, or substantial damage to property or the environment, from a hazard at the premises associated with the substance.

    (2)An inspector may also give a notice (also a prohibition notice) to a responsible person for a dangerous substance at premises if the inspector believes, on reasonable grounds, that—

    (a)someone at the premises has contravened, is contravening, or is likely to contravene, an improvement notice; or

    (b)giving the notice is necessary to allow—

    (i)the inspection, testing or monitoring of anything at the premises used in relation to the handling of the substance; or

    (ii)the investigation of an accident or other incident (including a dangerous occurrence) at the premises in relation to the substance.

    Example for par (2) (b) (i)

    to allow for routine compliance testing of plant and systems if the responsible person has not voluntarily agreed to the plant or system being shut down for the test

    Note 1For how documents may be served, see the Legislation Act, pt 19.5.

    Note 2A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

    Note 3An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Explanatory note

Existing section 109 (a) provides for a prohibition notice to be issued if an inspector believes, on reasonable grounds, that a person at premises has contravened, is contravening, or is likely to contravene, the Act.  That provision is too general and unnecessarily applies to minor contraventions.  Existing section 109 (b) (i) provides for a notice to be issued if an inspector believes, on reasonable grounds, that it is necessary to prevent or minimise risk of serious harm to the health or safety of people, or substantial damage to property or the environment, from a hazard at premises associated with a dangerous substance.  The issue of a notice in those circumstances is not appropriate if there is not a contravention of the Act.  This amendment (see new section 109 (1)) combines those requirements so that both requirements must be satisfied before a prohibition notice can be issued.

Existing section 109 (b) (ii) and (iii) (which are about notices given to allow inspection, testing, monitoring and investigation) are retained as independent grounds for the issue of a prohibition notice (see new section 109 (2) (b)).

The amendment also adds new section 109 (2) (a).  That paragraph provides for a prohibition notice to be issued for a contravention or likely contravention of an improvement notice.  This new ground recognises that a prohibition notice may need to be issued in relation to a dangerous substance even though the risk is less than that of the serious harm required for the issue of a prohibition notice under new section 109 (1).  However, new section 109 (2) (a) has a considerably narrower scope than existing section 109 (a) (see above) and it is balanced by the requirement that an improvement notice must have been issued.

[1.4]Section 110 (2) (b)

omit

section 109 (a) or (b) (i) (which are about notices given in relation to contravention of this Act or to prevent or minimise risk of serious harm or substantial damage)

substitute

section 109 (1) or (2) (a) (which are about notices given to prevent or minimise risk of serious harm etc from contravention of this Act or the contravention of an improvement notice)

Explanatory note

This amendment is consequential on the remaking of section 109 by another amendment.

[1.5]Section 110 (2) (c)

omit

section 109 (b) (ii) or (iii) (which are about

substitute

section 109 (2) (b) (which is about

Explanatory note

This amendment is consequential on the remaking of section 109 by another amendment.

[1.6]Section 111 (1)

omit

section 109 (b) (ii) or (iii)

substitute

section 109 (2) (b)

Explanatory note

This amendment is consequential on the remaking of section 109 by another amendment.

[1.7]Section 115 (1)

substitute

(1)This section applies to a prohibition notice if the notice was given under section 109 (1) or (2) (a) (which are about notices given to prevent or minimise risk of serious harm etc from contravention of this Act or the contravention of an improvement notice).

Explanatory note

This amendment is consequential on the remaking of section 109 by another amendment.

[1.8]Section 116 (1)

omit

section 109 (a) or (b) (i)

substitute

section 109 (1) or (2) (a)

Explanatory note

This amendment is consequential on the remaking of section 109 by another amendment.

[1.9]Section 118 (1)

omit

section 109 (b) (ii) or (iii) (which are about

substitute

section 109 (2) (b) (which is about

Explanatory note

This amendment is consequential on the remaking of section 109 by another amendment.

Part 1.2Domestic Animals Act 2000

[1.10]Section 81 (1)

before

during stated times

insert

at all times or

Explanatory note

This amendment makes it clear that a cat curfew can operate on a 24-hour basis.

Part 1.3Occupational Health and Safety Act 1989

[1.11]Section 154, definition of basis

substitute

basis, for giving a prohibition notice, means—

(a)the contravention of this Act in relation to which the prohibition notice was given and the risk to be prevented or minimised under the notice (see section 155 (1)); or

(b)the inspection, testing or monitoring to be allowed under the notice (see section 155 (2) (a)); or

(c)the accident or other incident to be investigated under the notice (see section 155 (2) (b)).

Explanatory note

This amendment is consequential on the remaking of section 155 by another amendment.

[1.12]Section 155

substitute

  1. Giving prohibition notices

    (1)An inspector may give a notice (a prohibition notice) to a responsible person for a workplace if the inspector believes, on reasonable grounds, that—

    (a)someone at the workplace has contravened, is contravening, or is likely to contravene, this Act; and

    (b)giving the notice is necessary to prevent or minimise risk of serious harm to the health or safety of people from a hazard at the workplace.

    (2)An inspector may also give a notice (also a prohibition notice) to a responsible person for a workplace if the inspector believes, on reasonable grounds, that giving the notice is necessary to allow—

    (a)the inspection, testing or monitoring of anything at the workplace; or

    (b)the investigation of an accident or other incident (including a dangerous occurrence) at the workplace.

    Example for par (2) (a)

    to allow for routine compliance testing of plant and systems if the responsible person has not voluntarily agreed to the plant or system being shut down for the test

    Note 1For how documents may be served, see the Legislation Act, pt 19.5.

    Note 2A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

    Note 3An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Explanatory note

Existing section 155 (a) provides for a prohibition notice to be issued if an inspector believes, on reasonable grounds, that a person at premises has contravened, is contravening, or is likely to contravene, the Act.  That provision is too general and unnecessarily applies to minor contraventions.  Existing section 155 (b) (i) provides for a notice to be issued if an inspector believes, on reasonable grounds, that it is necessary to prevent or minimise risk of serious harm to the health or safety of people from a hazard at a workplace.  The issue of a notice in those circumstances is not appropriate if there is not a contravention of the Act.  This amendment (see new section 155 (1)) combines those requirements so that both requirements must be satisfied before a prohibition notice can be issued.

Existing section 155 (b) (ii) and (iii) (which are about notices given to allow inspection, testing, monitoring and investigation) are retained as independent grounds for the issue of a prohibition notice (see new section 155 (2)).

[1.13]Section 156 (2) (b)

omit

section 155 (a) or (b) (i) (which are about notices given in relation to contravention of this Act or to prevent or minimise risk of serious harm)

substitute

section 155 (1) (which is about a notice given to prevent or minimise risk of serious harm from contravention of this Act)

Explanatory note

This amendment is consequential on the remaking of section 155 by another amendment.

[1.14]Section 156 (2) (c)

omit

section 155 (b) (ii) or (iii) (which are about

substitute

section 155 (2) (which is about

Explanatory note

This amendment is consequential on the remaking of section 155 by another amendment.

[1.15]Section 158 (1)

omit

section 155 (b) (ii) or (iii)

substitute

section 155 (2)

Explanatory note

This amendment is consequential on the remaking of section 155 by another amendment.

[1.16]Section 161 (1)

substitute

(1)This section applies to a prohibition notice if the notice was given under section 155 (1) (which is about a notice given to prevent or minimise risk of serious harm from contravention of this Act).

Explanatory note

This amendment is consequential on the remaking of section 155 by another amendment.

[1.17]Section 162 (1)

omit

section 155 (a) or (b) (i)

substitute

section 155 (1)

Explanatory note

This amendment is consequential on the remaking of section 155 by another amendment.

[1.18]Section 164 (1)

omit

section 155 (b) (ii) or (iii) (which are about

substitute

section 155 (2) (which is about

Explanatory note

This amendment is consequential on the remaking of section 155 by another amendment.

Part 1.4Road Transport (General) Act 1999

[1.19]New section 24 (1A)

insert

(1A)To remove any doubt, an authorised person may not serve an infringement notice on a person under this section for an offence after the end of the time within which a prosecution may be brought for the offence.

NoteFor the time within which a prosecution must be begun, see the Legislation Act, s 192.

Explanatory note

Section 24 deals with the service of infringement notices for offences against the road transport legislation generally.  The amendment makes it clear that an infringement notice cannot be served under the section for an offence that cannot be prosecuted.  This is implicit in the nature of an infringement notice scheme and in the provisions of the Road Transport (General) Act 1999, part 3. For example, section 22 (1) provides ‘the purpose of this part is to create a system of infringement notices ... as an alternative to prosecution’ (emphasis added).  However, the point is not expressly dealt with in the part.  The amendment will put the matter beyond doubt by expressly providing that infringement notices may not be served for ‘stale’ offences.

This amendment brings section 24 into line with the comparable provision of the infringement notice scheme under the Magistrates Court Act 1930 (see section 120 (2)).

[1.20]Section 24

renumber subsections when Act next republished under Legislation Act

Explanatory note

This amendment is consequential on the insertion of new section 24 (1A) by another amendment.

[1.21]New section 36 (7A)

insert

(7A)To remove any doubt, an authorised person may not serve an infringement notice on a person under this section for an offence after—

(a)if a regulation under subsection (7) prescribes a period for the offence—the end of the prescribed period; or

(b)in any other case—the end of the time within which a prosecution may be brought against the person for the offence.

Explanatory note

Section 36 deals with the service of infringement notices for offences against the road transport legislation involving a vehicle on the responsible person for the vehicle.  The amendment makes it clear that an infringement notice cannot be served under the section for an offence that cannot be prosecuted.

Under section 36 (7) the regulations may provide that an infringement notice for an offence may only be served under section 36 within the prescribed period after the day the offence was committed.  For example, the Road Transport (Offences) Regulation 2001, section 15 provides that infringement notices for camera-detected offences may only be served within 28 days after the day the offence was committed. The effect of section 36 (7) (and the regulation provision made for it) is reflected in the subsection inserted by the amendment.

This amendment brings section 36 into line with the comparable provision of the infringement notice scheme under the Magistrates Court Act 1930 (see section 131B (8)).

[1.22]Section 36

renumber subsections when Act next republished under Legislation Act

Explanatory note

This amendment is consequential on the insertion of new section 36 (7A) by another amendment.

[1.23]New section 53 (6)

insert

(6)To remove any doubt, subsection (2) does not permit the administering authority to lay an information against a person for an offence after the end of the time within which, apart from this section, a prosecution may be brought against the person for the offence.

NoteFor the time within which a prosecution must be begun, see the Legislation Act, s 192.

Explanatory note

This amendment makes it clear that this section does not provide for an extended period within which a prosecution for an offence may be brought. The Legislation Act, section 192 limits the time for bringing prosecutions for minor summary offences to 1 year after the day of the commission of the offence unless a territory law provides for another period.

The Road Transport (General) Act 1999, section 53 (2) provides that an administering authority ‘may’ lay an information against a person for an offence for which an infringement notice has been served within 60 days after being given a notice disputing liability is received.

The better view is that the word ‘may’ in this context indicates that the laying of an information is discretionary rather than mandatory (see Legislation Act, section 146 (1)) and does not empower the laying of an information within the 60-day period after the 1-year period for bringing a prosecution has ended. This view is supported by section 53 (5) which has the effect that a prosecution for an offence must be begun within 60 days after the receipt of a notice disputing liability for the offence.

The amendment will put the matter beyond doubt by expressly providing that the section does not permit the laying of an information after the end of the 1-year period.

This amendment brings section 53 into line with the comparable provision of the infringement notice scheme under the Magistrates Court Act 1930 (see section 134 (6)).

Schedule 2Structural amendments

(see s 5)

Part 2.1Legislation Act 2001

[2.1]Section 7, note 2

substitute

Note 2Section 100 (1) deals with references to particular Acts.

Explanatory note

This amendment replaces a note to section 7 consequential on the remaking of chapter 10 (Referring to laws) by another amendment.

[2.2]Section 19 (5), example 3

omit

Explanatory note

This amendment omits an example that is no longer appropriate.  The Australian Road Rules currently in force were notified as a notifiable instrument on 16 July 2004.

[2.3]Section 22A, definition of legislative material, example 1

substitute

1     Additional material entered in the register under section 19 (3) (Contents of register) that is not an Act or statutory instrument, for example, appointments of Ministers. Ministers are appointed by the Chief Minister under the Self‑Government Act, section 41.  An instrument notifying an appointment may be entered in the register even though the instrument is not a statutory instrument.

Explanatory note

This amendment omits part of an example that is no longer appropriate.  The Australian Road Rules currently in force were notified as a notifiable instrument on 16 July 2004.

[2.4]Section 26 (1) (h)

substitute

(h)amendments or other changes made under chapter 11 (Republication of Acts and statutory instruments); or

Explanatory note

This amendment adds a reference to amendments made under chapter 11 to more accurately reflect the wording used in chapter 11.

[2.5]Section 33 (1)

omit

, in writing,

Explanatory note

This amendment is consequential on the insertion of new section 42 (2) by another amendment.

[2.6]Section 33 (2)

omit

issued under this section

Explanatory note

This amendment omits words that are unnecessary in the context of the section.

[2.7]Section 34 (2)

omit

, in writing,

Explanatory note

This amendment is consequential on the insertion of new section 42 (2) by another amendment.

[2.8]Section 34 (4)

omit

in whole or in part

Explanatory note

This amendment removes unnecessary words.

[2.9]Section 34 (5)

omit

after the disallowance of the RIS exemption

substitute

after the day the RIS exemption is disallowed

Explanatory note

This amendment expressly provides that, in working out the period within which a regulatory impact statement must be presented to the Legislative Assembly after a RIS exemption is disallowed, the day on which the RIS exemption is disallowed is not counted. The amendment is in accordance with current drafting practice and reflects the present position under the Legislation Act, section 151 (2) and (3) (b).

[2.10]Section 36 (1) (d)

substitute

(d)the commencement of an Act or statutory instrument;

NoteA reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 13).

Explanatory note

This amendment revises the paragraph to omit unnecessary words.  Under the definitions of Act and statutory instrument in sections 7 and 13, a reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument.  The amendment also inserts a note to this effect.

[2.11]Section 37 (1)

omit

in whole or part

Explanatory note

This amendment removes unnecessary words.

[2.12]New section 42 (2)

insert

(2)If an Act or statutory instrument gives power to make an instrument that would be a registrable instrument, the power can only be exercised by making an instrument.

Examples

See examples to section 56 (3) and section 255 (3).

Explanatory note

This amendment provides that power to make an instrument that would be a registrable instrument (eg a disallowable instrument) can only be exercised by making an instrument.  The amendment removes any possibility that the safeguards attaching to these instruments (notification and, for disallowable instruments, presentation in the Legislative Assembly and possible disallowance or amendment) could be avoided by exercising the power orally rather than in writing.  The amendment will remove the need to state in provisions giving power to make a registrable instrument that the power must be exercised in writing.  For example, see the amendments of section 33 (1) and section 34 (2).

[2.13]Section 42 (2) and (3)

renumber as section 42 (3) and (4)

Explanatory note

This amendment is consequential on the insertion of new section 42 (2) by another amendment.

[2.14]Section 44 (1) and (2) (a)

omit

(or for the purposes of)

Explanatory note

This amendment omits words that are no longer necessary.  For, in relation to an Act or statutory instrument, is defined in the dictionary, part 1 to include for the purposes of the Act or statutory instrument.

[2.15]Section 45 (4), definition of disallowable instrument

substitute

disallowable instrument, for a Commonwealth Act, means an instrument that can be disallowed under the Legislative Instruments Act 2003 (Cwlth), part 5 (Parliamentary scrutiny of legislative instruments), including that part, or provisions of that part, applied by another Commonwealth law.

Explanatory note

This amendment updates the definition to take account of the enactment of the Legislative Instruments Act 2003 (Cwlth).

[2.16]Section 45 (4), definition of law

substitute

law means—

(a)an Act, subordinate law or disallowable instrument; or

NoteA reference to an Act, subordinate law or disallowable instrument includes a reference to a provision of the Act, law or instrument (see s 7, s 8 and s 9).

(b)a Commonwealth Act or a disallowable instrument under a Commonwealth Act (or a provision of such an Act or instrument).

Explanatory note

This amendment is consequential on the revised definition of disallowable instrument substituted by another amendment.  The amendment also revises the definition to omit unnecessary words.  Under the definitions of Act, subordinate law and disallowable instrument in sections 7 to 9, a reference to an Act, subordinate law or disallowable instrument includes a reference to a provision of the Act, law or instrument.  The amendment also inserts a note to this effect.

[2.17]Section 47 (10), definition of ACT law

substitute

ACT law means an Act, subordinate law or disallowable instrument.

NoteA reference to an Act, subordinate law or disallowable instrument includes a reference to a provision of the Act, law or instrument (see s 7, s 8 and s 9).

Explanatory note

The amendment revises the definition to omit unnecessary words.  Under the definitions of Act, subordinate law and disallowable instrument in sections 7 to 9, a reference to an Act, subordinate law or disallowable instrument includes a reference to a provision of the Act, law or instrument.  The amendment also inserts a note to this effect.

[2.18]Section 47 (10), definition of disallowable instrument

substitute

disallowable instrument, for a Commonwealth Act, means an instrument that can be disallowed under the Legislative Instruments Act 2003 (Cwlth), part 5 (Parliamentary scrutiny of legislative instruments), including that part, or provisions of that part, applied by another Commonwealth law.

Explanatory note

This amendment updates the definition to take account of the enactment of the Legislative Instruments Act 2003 (Cwlth).

[2.19]Section 47 (10), definition of law of another jurisdiction, paragraph (a)

substitute

(a)a Commonwealth Act or a disallowable instrument under a Commonwealth Act; or

Explanatory note

This amendment is consequential on the revised definition of disallowable instrument  substituted by another amendment.

[2.20]Section 51 (2)

after

available for inspection

insert

(on the internet or otherwise)

Explanatory note

This amendment makes it clear that it is sufficient for this section if the map, plan or register is available for inspection on the internet and does not need to be physically available for inspection.

[2.21]Section 56 (1)

substitute

(1)This section applies if an Act (the authorising law) authorises fees to be determined for an Act or statutory instrument (the relevant law).

Explanatory note

This amendment makes it clear that an Act can authorise fees to be determined for a number of laws (see also Legislation Act, section 49 (Single instrument may exercise several powers or satisfy several requirements) and section 145 (Gender and number)).

[2.22]Section 56 (3), example

substitute

Example

The X Act, section 15 provides for a person to apply for an approval but makes no mention of a fee for the approval.  However, the Act, section 79 (1) provides:

(1)     The Minister may determine fees for this Act.

Because section 79 (1) permits a fee to be determined ‘for this Act’, this Act, section 56 applies in relation to section 15 and the Minister may, in writing, determine an application fee for the approval.

Note 1The determination must be in writing (see s 42 (2)).

Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).

Explanatory note

This amendment is consequential on the insertion of a new section 42 (2) by another amendment.

[2.23]Section 56 (4) (a)

omit

specifying

substitute

stating

Explanatory note

This amendment updates language.

[2.24]Section 56 (4) (c)

omit

specified

substitute

stated

Explanatory note

This amendment updates language.

[2.25]Section 56 (4), example

omit

specifying

substitute

stating

Explanatory note

This amendment updates language.

[2.26]Section 56 (5) (g)

omit

(in whole or part)

substitute

(completely or partly)

Explanatory note

This amendment updates language.

[2.27]Section 56 (5), examples for par (e), example 1

substitute

1a provision that a levy is payable within 30 days after the day goods are sold

Explanatory note

This amendment brings the language of the example into line with current drafting practice.

[2.28]Section 58 (2) (b)

omit

(in whole or part)

substitute

(completely or partly)

Explanatory note

This amendment updates language.

[2.29]Section 59 (2), example 2

omit

could

substitute

may

Explanatory note

This amendment makes the language of the example consistent with example 1.

[2.30]Section 61 (1)

omit

the maker of, or the appropriate person for,

substitute

an authorised person for making a notification request for

Explanatory note

This amendment simplifies the subsections by substituting a single self-explanatory concept for the people who can request notification of the making of a registrable instrument.  The amendment also recognises that, under the replacement of section 61 (12) by another amendment, usually a notification request can be made by 1 of a number of people.

[2.31]Section 61 (2)

omit

the maker of, or appropriate person for,

substitute

an authorised person for making a notification request for

Explanatory note

This amendment is consequential on the amendment of section 61 (1).

[2.32]Section 61 (10)

substitute

(10)The notification of a registrable instrument is valid even if—

(a)a prescribed requirement was not complied with; or

(b)the notification was made on the request of a person who was not, or was no longer, a delegate of an authorised person for making a notification request for the instrument.

Explanatory note

This amendment ensures the legal effectiveness of the notification of a registrable instrument made on the request of a person who was not, or was no longer, a delegate of an authorised person for making a notification request for the instrument. Once a registrable instrument is notified it will not matter that there may have been, for example, a defect in a delegation relied on to make the notification request. The amendment will remove any need for people seeking to rely on a notified registrable instrument to check the validity of a delegation used in making the notification request. The amendment complements the judicial notice provision about notification made by the Legislation Act, section 26 (1) (b) and section 242 (Delegation not affected by defect etc).

[2.33]Section 61 (12)

substitute

(12)In this section:

authorised person, for making a notification request for a registrable instrument, means—

(a)the maker of the instrument; or

(b)for a registrable instrument made by the Executive—a Minister or chief executive; or

(c)for a registrable instrument made by a Minister—a chief executive; or

(d)for a registrable instrument made by the rule-making committee—

(i)the secretary of the committee; or

(ii)the registrar of a court or tribunal in relation to which the instrument applies; or

(e)for any other registrable instrument made by a court or tribunal, or by a member (however described) of a court or tribunal—the registrar of the court or tribunal; or

(f)for any other registrable instrument (other than an instrument prescribed by regulation for this paragraph)—a chief executive; or

(g)for a registrable instrument prescribed by regulation for this paragraph—a person prescribed by regulation as an authorised person for making a notification request for the instrument.

rule-making committee means the rule-making committee established under the Court Procedures Act 2004.

Explanatory note

This amendment simplifies existing section 61 by including the maker of a registrable instrument within the definition of authorised person for making a notification request for the instrument.  It also broadens, in a number of respects, the people who (apart from the maker) can request the notification of registrable instruments.

First, the definition of authorised person, paragraph (b) will allow any Minister or chief executive to request the notification of a registrable instrument made by the Executive.  Under the existing definition of appropriate person a notification request for an Executive instrument can only be made by a Minister.  However, in practice registrable instruments made by the Executive are notified under a delegation made by a Minister (usually the Chief Minister) to a chief executive (usually the Chief Executive, Chief Minister’s Department) and a subdelegation made by the chief executive to the public servants who in fact make the notification requests.  Paragraph (b) will allow this process to be simplified.

Second, the definition of authorised person, paragraph (c) will allow any chief executive to request the notification of a registrable instrument made by a Minister.  Under the Legislation Regulation 2003, section 11 a notification request for a Ministerial instrument can only be made by the chief executive of the administrative unit responsible for the provision under which the instrument is made. In practice this has been unnecessarily restrictive. For example, it can be more convenient for concurrent notification requests to be made for a Ministerial instrument (eg a disallowable instrument or commencement notice) that is made as part of a package with an Executive instrument (eg a regulation). At present this can only be achieved through delegations between administrative units.

Third, the definition of authorised person, paragraph (d) will allow notification requests for registrable instruments made by the rule-making committee under the Court Procedures Act 2004 to be made by the secretary of the committee or the registrar of a court or tribunal in relation to which the instrument applies.  This will remove the need for the Chief Justice to appoint people for making notification requests.  The amendment inserts a definition of rule‑making committee for the paragraph.

Fourth, the definition of authorised person, paragraph (e) will allow notification requests for any other registrable instruments made by a court or tribunal (or a member of the court or tribunal) to be made by the registrar of the court or tribunal.

Fifth, the definition of authorised person, paragraphs (f) and (g) will allow a notification request for any other registrable instrument to be made by any chief executive or someone prescribed by regulation.  Under the Legislation Regulation 2003, section 11 such a notification request can only be made by the chief executive of the administrative unit responsible for the provision under which the instrument is made. In practice this has been unnecessarily restrictive.

Although the amendment broadens the people who can request the notification of registrable instruments, it does not affect the power to make registrable instruments (nor the people who can make registrable instruments).

[2.34]Section 64 (2)

omit

under

substitute

in accordance with

Explanatory note

This amendment tightens language.

[2.35]Section 65 (2) (a)

substitute

(a)on the day after the day the disallowance is notified; or

Explanatory note

This amendment brings the default repeal commencement provision for disallowances of subordinate laws or disallowable instruments arising from Legislative Assembly resolutions into line with the default commencement provision for Acts and registrable instruments under the Legislation Act, section 73.

[2.36]Section 67 (2)

omit

after the disallowance

substitute

after the day of the disallowance

Explanatory note

This amendment expressly provides that, in working out the period within which a law the same in substance as a disallowed law must not be made, the day of the disallowance is not counted. The amendment is in accordance with current drafting practice and reflects the present position under the Legislation Act, section 151 (2) and (3) (b).

[2.37]Section 68 (3) (a)

substitute

(a)on the day after the day the amendment is notified; or

Explanatory note

This amendment brings the default commencement provision for amendments of subordinate laws or disallowable instruments arising from Legislative Assembly resolutions into line with the default commencement provision for Acts and registrable instruments under the Legislation Act, section 73.

[2.38]Section 70 (2)

omit

after the making of the amendment

substitute

after the day the amendment is made

Explanatory note

This amendment expressly provides that, in working out the period within which a law the same in substance as a subordinate law or disallowable instrument amended by resolution of the Legislative Assembly must not be made, the day the amendment is made is not counted. The amendment is in accordance with current drafting practice and reflects the present position under the Legislation Act, section 151 (2) and (3) (b).

[2.39]Section 71 (1) (a)

omit

after the instrument

substitute

after the day the instrument

Explanatory note

This amendment clarifies how to work out a period required for the application of this section. The amendment is in accordance with current drafting practice and reflects the present position under the Legislation Act, section 151 (2) and (3) (b).

[2.40]Section 71 (1) (b)

omit

after the notice

substitute

after the day the notice

Explanatory note

This amendment clarifies how to work out a period required for the application of this section. The amendment is in accordance with current drafting practice and reflects the present position under the Legislation Act, section 151 (2) and (3) (b).

[2.41]Section 72, definition of law

substitute

law means an Act or statutory instrument.

NoteA reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 13).

Explanatory note

This amendment revises the definition to omit unnecessary words.  Under the definitions of Act and statutory instrument in sections 7 and 13, a reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument.  The amendment also inserts a note to this effect.

[2.42]Section 73 (2), examples for par (b), example 2

substitute

2     A disallowable instrument may provide that it commences on the commencement of a stated law or a stated provision of a stated law.

Explanatory note

This amendment amends the example to reflect current drafting practice and brings the example into line with the Legislation Act, section 79A (3).

[2.43]Section 76 (2)

omit

may not

substitute

cannot

Explanatory note

This amendment tightens language.

[2.44]Section 79 (4), definition of law

substitute

law means an Act, subordinate law, disallowable instrument or notifiable instrument.

NoteA reference to an Act, subordinate law, disallowable instrument or notifiable instrument includes a reference to a provision of the Act, law or instrument (see s 7, s 8, s 9 and s 10).

Explanatory note

This amendment revises the definition to omit unnecessary words.  Under the definitions of Act, subordinate law, disallowable instrument and notifiable instrument in sections 7 to 10, a reference to an Act, subordinate law, disallowable instrument or notifiable instrument includes a reference to a provision of the Act, law or instrument.  The amendment also inserts a note to this effect.

[2.45]Section 79 (4), definition of postponed law

omit

the notification day

substitute

its notification day

Explanatory note

This amendment tightens language.

[2.46]Section 81 (1), new examples

insert

Examples of powers to which section applies

1     power to delegate a function

2     power to give or issue an approval, consent, licence, permit or other authority (however described)

3     power to make an acting appointment

4     power to issue guidelines

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Explanatory note

This amendment includes examples of powers to which section 81 applies.  The examples are largely drawn from section 94 (Continuance of appointments etc made under amended provisions).

[2.47]Section 82, definition of law

substitute

law means an Act or statutory instrument.

NoteA reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 13).

Explanatory note

This amendment revises the definition to omit unnecessary words.  Under the definitions of Act and statutory instrument in sections 7 and 13, a reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument.  The amendment also inserts a note to this effect.

[2.48]Section 84 (2)

omit

begun

substitute

started

Explanatory note

This amendment updates language.

[2.49]Section 84A (4), definition of law

substitute

law means an Act or subordinate law.

NoteA reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 8).

Explanatory note

This amendment revises the definition to omit unnecessary words.  Under the definitions of Act and subordinate law in sections 7 and 8, a reference to an Act or subordinate law includes a reference to a provision of the Act or law.  The amendment also inserts a note to this effect.

[2.50]Section 88 (1) (b)

omit

otherwise

Explanatory note

This amendment omits an unnecessary word.

[2.51]New section 88 (1A)

insert

(1A)Subsection (1) does not apply to a declaration or validation that is made by a law modifying another law.

Explanatory note

This amendment makes it clear that the effect of a modification ends when the modification ends and is not saved by section 88 (1).

[2.52]Section 88

renumber subsections when Act next republished under Legislation Act

Explanatory note

This amendment is consequential on the insertion of new section 88 (1A) by another amendment.

[2.53]Section 89 (12), definition of amending law, paragraph (b)

substitute

(b)a preamble or recital (however described);

Explanatory note

This amendment expands the paragraph to include recitals (which are sometimes used in statutory instruments) in the definition of amending law.

[2.54]Section 89 (12), definition of amending law, paragraph (f), new note

insert

NoteA note itself is not part of an Act or statutory instrument (see s 127).

Explanatory note

This amendment includes a note drawing attention to the legal status of notes.

[2.55]Section 89, example 1

after

12 April 2002.

insert

The Act is automatically repealed under section 89 on the day after all of its provisions have commenced, 13 April 2002.

Explanatory note

This amendment adds material to the example to explain when the Act given in the example is automatically repealed.

[2.56]Section 89, example 2

after

subsection (1).

insert

It is, therefore, not automatically repealed under section 89.

Explanatory note

This amendment adds material to the example to state expressly that the Act given in the example is not automatically repealed under section 89.

[2.57]Section 91 (8)

substitute

(8)In applying this section to a law that is divided otherwise than into sections, a reference to a section or subsection is a reference to a corresponding provision of the law.

Explanatory note

This amendment remakes subsection (8) so that it is expressed to apply to a law that is divided otherwise than into sections.  Existing subsection (8) is expressed to apply to a statutory instrument or a provision of a schedule to an Act.  However, to simplify the naming of provisions of statutory instruments and schedules to Acts current drafting practice is to use ‘section’ instead of ‘regulation’ or ‘clause’ and ‘subsection’ instead of ‘subregulation’ or ‘subclause’.  Because of the definition of law in section 82 (and the definitions of Act and statutory instrument in sections 7 and 13), the remade subsection will also apply to provisions of an Act or statutory instrument (eg a schedule that sets out a list of items).

[2.58]Section 92 (1), example

omit

and twice in section 20 (3)

substitute

, twice in section 20 (3), once in an example to section 20 (4) and twice in a note to section 20 (5)

Explanatory note

This amendment amends an example to expressly cover notes and examples.

[2.59]Section 93 (10)

substitute

(10)In applying this section to a law that is divided otherwise than into sections, a reference to a section or subsection is a reference to a corresponding provision of the law.

Explanatory note

This amendment remakes subsection (10) so that it is expressed to apply to a law that is divided otherwise than into sections.  Existing subsection (10) is expressed to apply to a statutory instrument or a provision of a schedule to an Act.  However, to simplify the naming of provisions of statutory instruments and schedules to Acts current drafting practice is to use ‘section’ instead of ‘regulation’ or ‘clause’ and ‘subsection’ instead of ‘subregulation’ or ‘subclause’.  Because of the definition of law in section 82 (and the definitions of Act and statutory instrument in sections 7 and 13), the remade subsection will also apply to provisions of an Act or statutory instrument (eg a schedule that sets out a list of items).

[2.60]Section 96 (4)

after

made to

insert

, or in relation to,

Explanatory note

This amendment recognises that the operation of a relocated provision may be affected by changes made to other provisions of the law to which the provision is relocated and by existing provisions of that law.

[2.61]Chapter 10

substitute

Chapter 10Referring to laws

  1. Definitions for ch 10

    (1)In this chapter:

    ACT law means an Act or statutory instrument.

    NoteA reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 13).

    law means an ACT law or a law of another jurisdiction.

    law of another jurisdiction means an Act or statutory instrument of another jurisdiction, and includes a provision of an Act or statutory instrument of another jurisdiction.

    NoteAnother jurisdiction means the Commonwealth, a State, another Territory, the United Kingdom or New Zealand (see dict, pt 2).

    (2)In this section:

    Act, in relation to another Territory, includes ordinance.

    statutory instrument, of another jurisdiction, means an instrument (whether or not legislative in nature) made under—

    (a)an Act of the other jurisdiction; or

    (b)another statutory instrument of the other jurisdiction; or

    (c)power given by an Act or statutory instrument of the other jurisdiction and also power given otherwise by law.

  2. References to ACT law include law containing reference

    In an ACT law, a reference in general terms to an ACT law of the same kind includes a reference to the law itself.

    Example

    The ABC Act 2001, section 27 gives a power to confiscate property under certain circumstances.  Section 93 of the same Act provides ‘If an Act authorises the confiscation of property, the owner of the property has a right of appeal to the Magistrates Court.’  The right of appeal under section 93 also applies to the power given by section 27 because the reference to ‘an Act’ in section 93 includes a reference to the ABC Act 2001.

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).

  3. References in ACT statutory instruments to the Act

    In a statutory instrument, a reference to Act or the Act, without mentioning a particular Act, is a reference to the Act under which the instrument is made or in force.

  4. Referring to particular ACT laws

    (1)An Act may be referred to by—

    (a)the name the Act gives to itself; or

    (b)the year it was passed and its number, together with a reference (if necessary) to indicate that it is an Act.

    Example of reference to indicate Act

    An Act may be referred to using the word Act or the letter ‘A’ (eg ‘A1993-1’ is a reference to Act No 1 of 1993).

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).

    (2)A statutory instrument may be referred to by—

    (a)any name the instrument gives to itself; or

    (b)if the instrument was notified in the register or gazette and was numbered under this Act or another territory law—the year it was notified and its number, together with a reference (if necessary) to the kind of instrument; or

    (c)if the instrument was not notified but was numbered under a territory law—the year it was made and its number, together with a reference (if necessary) to the kind of instrument; or

    (d)if the instrument was notified in the gazette before the commencement of this Act—the number, date and page of the gazette where it was notified; or

    (e)the date it was made, together with a reference to the Act or statutory instrument under which it was made.

    Examples of references to kind of instrument for par (b)

    1A subordinate law may be referred to using the letters ‘SL’ (eg ‘SL2000-11’ is a reference to subordinate law No 11 of 2000).

    2A disallowable instrument may be referred to using the letters ‘DI’ (eg ‘DI1997-101’ is a reference to disallowable instrument No 101 of 1997).

    3A notifiable instrument that is not an approved form may be referred to using the letters ‘NI’ (eg ‘NI2002-226’ is a reference to notifiable instrument No 226 of 2002).

    4An approved form may be referred to using the letters ‘AF’ (eg ‘AF2003-1’ is a reference to approved form No 1 of 2003).

    5A commencement notice may be referred to using the letters ‘CN’ (eg ‘CN2002-3’ is a reference to commencement notice No 3 of 2002).

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).

  5. Referring to particular laws of other jurisdictions etc

    (1)In an ACT law, a law of another jurisdiction (the relevant law) may be referred to—

    (a)by the name the relevant law gives to itself; or

    (b)in any other way sufficient in a law of the other jurisdiction for referring to the relevant law; or

    (c)in any way that, under current legislative drafting practice, would be sufficient for referring to the relevant law if it were an ACT law;

    together with a reference to the jurisdiction (or an abbreviation of the jurisdiction).

    (2)In an ACT law, a provision of a law of another jurisdiction may be referred to—

    (a)in a way sufficient in a law of the other jurisdiction for referring to the provision; or

    (b)in any way that, under current legislative drafting practice, would be sufficient for referring to the provision if it were a provision of an ACT law.

    (3)Subsection (2) does not limit any other provision of this chapter.

  6. References to laws include references to laws as in force from time to time

    (1)In an ACT law, a reference to a law includes a reference to the following:

    (a)the law as originally made, and as amended from time to time since it was originally made;

    (b)if the law has been repealed and remade (with or without changes) since the reference was made—the law as remade (or last remade), and as amended from time to time since it was remade (or last remade);

    (c)if a relevant provision of the law has been omitted and remade (with or without changes) in another law since the reference was made—the law in which the provision was remade (or last remade), as in force when the provision was remade (or last remade), and as amended from time to time since the provision was remade (or last remade).

    (2)In an ACT law, a reference to a provision of a law includes a reference to the following:

    (a)the provision as originally made, and as amended from time to time since it was originally made;

    (b)if the provision has been omitted and remade (with or without changes and whether in the law or another law) since the reference was made—the provision as remade (or last remade), and as amended from time to time since it was remade (or last remade).

    (3)To remove any doubt, if the name of a law is amended, a reference in an ACT law to the law by its name before the amendment includes a reference to the law by its name as amended.

    (4)This section is subject to section 47 (Statutory instrument may make provision by applying law or instrument).

    (5)In this section:

    made includes enacted.

  7. References to repealed laws

    In an ACT law, a reference to a law as repealed is a reference to the law as in force immediately before it was repealed.

    Example

    A reference to the ‘XYZ Act 2000 (repealed)’ is a reference to the XYZ Act 2000 immediately before it was repealed.

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).

  8. References to laws include references to instruments under laws

    (1)In an ACT law, a reference (either generally or specifically) to a law includes a reference to the statutory instruments made or in force under the law.

    (2)In subsection (1), a reference to the statutory instruments made or in force under the law includes a reference to any law or instrument applied, adopted or incorporated (with or without change) under the law.

    (3)This chapter applies to an instrument applied, adopted or incorporated under a law as if—

    (a)the instrument were a law; and

    (b)any other necessary changes were made.

    (4)In this section:

    statutory instrument, of another jurisdiction—see section 97 (2).

  9. Referring to provisions of laws

    In an ACT law, a provision of a law may be referred to by reference to the provision of the law in which it is contained.

    Example

    Paragraph (b) of subsection (2) of section 10 of an Act may be referred to by reference to the section, subsection and paragraph, that is, as section 10 (2) (b).

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).

  10. References to provisions of laws are inclusive

    In an ACT law, a reference to any part of a law is a reference to the following:

    (a)the provision of the law that begins the part;

    (b)the provision of the law that ends the part;

    (c)any provision of the law between the beginning and end of the part.

    Examples

    1     A reference to ‘sections 5 to 9’ includes both section 5 and section 9.

    2     A reference to ‘sections 260 to 264’ includes a provision such as a part heading between section 260 and section 261.

    3     A reference to ‘from child to adult’ includes both the word ‘child’ and the word ‘adult’.

    NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).

106AReferences to paragraphs etc of laws

(1)In an ACT law, a reference to a paragraph of a provision of a law includes any words in the provision before or after the paragraph that are necessary or desirable to make the reference meaningful.

Example

A subsection may be divided into paragraphs as follows:

‘(2)   An application must be—

(a)in writing; and

(b)accompanied by a copy of the advertisement of the applicant’s intention to apply.’

Paragraphs form part of the sentence in which they are contained.  A reference to paragraph (a) in this example that did not include the preceding words ‘An application must be’ would be meaningless.  Section 106A therefore allows the paragraph to be read with those words so that it makes sense.

Note 1Although this section contains a reference to an ACT law and a reference to a law, s 98 makes it clear that the references can be to the same law.

Note 2An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see s 126 and s 132).

(2)In this section:

paragraph includes a subparagraph and a sub-subparagraph.

Explanatory note

This amendment remakes chapter 10 (Referring to laws) to simplify its provisions and reorganise them into a more logical arrangement.  The simplification is achieved largely by the insertion of new definitions of ACT law, law and law of another jurisdiction for the chapter in new section 97.

The definition of ACT law includes all statutory instruments.  At present a number of provisions of the chapter distinguish between subordinate laws and disallowable instruments and other statutory instruments (see eg existing section 97).  There is no reason in principle why this distinction needs to be maintained as a general rule.  There is in fact considerable advantage to users of ACT legislation in having the provisions of the chapter apply as consistently as possible to all statutory instruments.

The definitions of law and law of another jurisdiction are inserted to enable the provisions of the chapter to be simplified.  The definition of law of another jurisdiction provides a definition for certain other jurisdictions equivalent to the definition of ACT law.  The definition of statutory instrument in new section 97 (2) mirrors the existing definition of statutory instrument in the Legislation Act, section 13. Another jurisdiction is defined (in a definition being inserted in the dictionary, part 2 by another amendment) to include the Commonwealth, a State, another Territory, the United Kingdom and New Zealand.  The application of the definition has the effect of extending the operation of the chapter to references to United Kingdom and New Zealand laws.  Most, but not all, of the provisions of the chapter already operate in relation to references to laws of the Commonwealth, a State or a Territory.  Presently only existing section 99 (Referring to particular Acts) and existing section 100 (Referring to statutory instruments) apply to United Kingdom laws.  None of the provisions of the chapter presently apply to New Zealand laws even though New Zealand laws are occasionally referred to in ACT laws.

The new definitions are inserted at the beginning of the chapter as new section 97.  The subsequent sections of new chapter 10 are organised as follows:

  • new sections 98 to 100 deal with references to ACT laws only

  • new section 101 deals with references to laws of other jurisdictions only

  • new sections 102 to 104 deal with references to laws generally (ie ACT laws and laws of other jurisdictions)

  • new sections 105 to 106A also apply to references to laws generally but focus on references to provisions of those laws.

The following table lists the provisions of existing chapter 10 and the corresponding provision of the new chapter.

Provision of existing ch 10 Corresponding provision of new ch 10
section 97 (References to law or instrument include law or instrument containing reference) section 98 (References to ACT law include law containing reference)
section 98 (Referring to laws in general terms) [covered by general provisions]
section 99 (Referring to particular Acts)

s 100 (1) (Referring to particular ACT laws)

s 101 (Referring to particular laws of other jurisdictions etc)
section 100 (Referring to statutory instruments)

section 100 (2) (Referring to particular ACT laws)

section 101 (Referring to particular laws of other jurisdictions etc)
section 101 (Referring to provisions of laws or instruments) section 105 (Referring to provisions of laws)
section 101A (Reference to provisions of law or instrument is inclusive) section 106 (References to provisions of laws are inclusive)
section 101B (References to paragraphs etc) section 106A (References to paragraphs etc of laws)
section 102 (Meaning of references to a law or instrument generally) section 102 (References to laws include references to laws as in force from time to time)
section 103 (References to laws and instruments with amended names) section 102 (3)
section 104 (References to laws include references to instruments under laws) section 104 (References to laws include references to instruments under laws)
section 105 (References in statutory instruments to the Act) section 99 (References in ACT statutory instruments to the Act)
section 106 (References to repealed laws) section 103 (References to repealed laws)

Most provisions of existing chapter 10 have been consequentially amended and substantially simplified (eg by removing section definitions and redundant words) because of the new definitions.

In addition, the headings of a number of sections have been changed to more accurately indicate their scope and content.  For example, the heading to existing sections 97, 99 and 105 have been changed to make it clear to the reader that the sections are only about ACT laws.

Additional changes made to particular sections are noted below.

New section 100 has been revised to bring the section more closely into line with the provisions of the Legislation Act about the numbering of Acts and registrable instruments (see section 27 and section 59). In particular, new section 100 (2) now deals separately with instruments that have been notified and numbered under a territory law and instruments that have not been notified but have been numbered under a territory law. For an instrument that is notified, the year of notification rather than the year of making is used in referring to the instrument (see Legislation Act, section 59 (1) and section 60 (1) (a)). The existing provision has been simplified by omitting subsection (1) (c) (iii). That provision is no longer necessary as all instruments notified in the register are numbered and so are covered by new section 100 (2) (b).

New section 101 is about referring to laws, and provisions of laws, of other jurisdictions.  The section replaces in a simplified form the existing provisions of section 99 (2) to (4) and section 100 (2) to (4).  Subsection (1) recognises that current ACT legislative drafting practice is used in referring to all laws (including laws of other jurisdictions).  For example, ACT legislative styles in the use of italics in legislation names are used rather than any different style of another jurisdiction.  Subsection (2) recognises that current ACT legislative drafting practice is used in referring to the provisions of all laws (including laws of other jurisdictions).  For example, Commonwealth provisions are referred to using ACT legislative reference styles rather than Commonwealth styles eg ‘section 20 (1)’ rather than ‘subsection 20 (1)’.

Existing section 99 (2) to (4) covers references to Acts and ordinances of the Commonwealth, a State, another Territory and the United Kingdom.  Existing section 100 (2) to (4) covers references to instruments of the Commonwealth, a State, another Territory and the United Kingdom.  The amendment broadens the existing provisions to include references to laws of New Zealand.

New subsection (3) makes it clear that other provisions of the chapter apply to references to provisions of laws of other jurisdictions eg new section 102 (References to laws include references to laws as in force from time to time), new section 105 (Referring to provisions of laws), new section 106 (References to provisions of laws are inclusive) and new section 106A (References to paragraphs etc of laws).

New section 102 (1) and (2) has been revised to clarify its operation to laws and provisions that have been remade more than once.  In this case, a reference to the law or provision includes a reference to the law or provision as last remade, and as amended from time to time since then.

New section 102 (3)—under existing section 103, if the name of a law is amended, a reference to the name includes a reference to the name as amended.  It is likely that this is already covered under the terms of existing (and proposed replacement) section 102 (1) (a).  However, to remove any doubt the provision is included expressly as new section 102 (3).

New section 104 (3) has been included to apply the provisions of the chapter to instruments applied, adopted or incorporated under laws.  The subsection will, for example, ensure that new section 106 (References to provisions of laws are inclusive) applies to a reference to a part of an applied instrument.  This result is achieved in existing chapter 10 by the definitions of instrument contained in most of the sections of the chapter (see eg section 101A (2)).

New section 106A extends the operation of existing section 101B to references to a paragraph of a law of another jurisdiction.  The amendment brings the section into line with other provisions of the chapter that already apply to references to provisions of laws of other jurisdictions eg existing section 101 (Referring to provisions of laws or instruments) and existing section 101A (Reference to provisions of law or instrument is inclusive).

Existing section 98 is not reproduced in new chapter 10.  This is because the existing section does not add anything that is not already covered in the Act as amended so separate provision for it is not necessary.  For example, existing section 98 (1) states that an Act may be referred to by the word ‘Act’ alone.  However, the combined effect of the definition of the term Act in section 7 and the provisions of new sections 98 and 100 (1) now cover this point.  Similarly, the combined effect of the definition of statutory instrument in section 13 and the provisions of new sections 98 and 100 (2) cover what existing section 98 (2) provides. In addition, under the Legislation Act, section 122 (1) (b) a reference to anything by name or description is a reference to the thing of that name or description in or for the Territory (unless the provision is displaced). A reference to an ‘Act’ or ‘statutory instrument’ without more is, therefore, a reference to an ‘ACT Act’ or ‘ACT statutory instrument’.

[2.62]Section 107, definition of law, new note

insert

NoteA reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 13).

Explanatory note

This amendment inserts a new note for consistency with other amendments.

[2.63]Section 111 (3)

omit

Explanatory note

This amendment is consequential on the amendments of section 116.

[2.64]Section 111 (4)

renumber as section 111 (3)

Explanatory note

This amendment is consequential on the omission of section 111 (3) by another amendment.

[2.65]New section 116 (1) (o)

insert

(o)is consequential on any amendment made to the law by another law; or

Explanatory note

The effect of this amendment is to relocate the power to make editorial amendments consequential on substantive amendments made by laws from part 11.2 (Substantive amendments made by laws) to part 11.3 (Editorial changes).  This power is more appropriately located in part 11.3.  In part 11.3 the following provisions will apply to consequential amendments made under the relocated power:

  • section 115 (Amendments not to change effect)

  • section 117 (Legal effect of editorial changes)

  • section 118 (Reference to editorial amendments).

Examples of the kinds of amendments that could be made under the power are inserted by another amendment of section 116.

[2.66]Section 116 (1) (o)

renumber as section 116 (1) (p)

Explanatory note

This amendment is consequential on the insertion of new section 116 (1) (o) by another amendment.

[2.67]Section 116 (1), new examples

insert

Examples of consequential amendments for par (o)

1     If an amendment adds 1 or more subsections to a section that is not already divided into subsections, the subsection number (1) may be inserted.

2     If an amendment omits subsection (1) from a section with 2 subsections, the subsection number (2) may be omitted.

3     If an amendment omits subsection (2) from a series of 4 subsections (subsections (1) to (4)), subsections (3) and (4) may be renumbered as subsections (2) and (3).

4     If an amendment adds a new subsection (3A) to a series of 5 subsections (subsections (1) to (5)), the new subsection and subsections (4) and (5) may be renumbered as subsections (4), (5), and (6).

5     If an amendment omits paragraph (b) from a series of 4 paragraphs (paragraphs (a) to (d)), paragraphs (c) and (d) may be renumbered as paragraphs (b) and (c).

6     If an amendment adds a new paragraph (aa) to a series of 3 paragraphs (paragraphs (a) to (c)), the paragraphs may be renumbered as paragraphs (a), (b), (c) and (d).

7     If an amendment makes a change mentioned in any of examples 1 to 6, a cross-reference in any law to any of the provisions that have been renumbered may be correspondingly renumbered.

8     If an amendment adds a paragraph as the last paragraph in a series of paragraphs that end in a full stop, the full stop may be changed to a semicolon and, if the series of paragraphs is joined by a conjunction (eg ‘and’), the conjunction may be added after the semicolon.

9     If an amendment omits a section example from a section that has 2 section examples, the number of the remaining example may be omitted.

10    If an amendment adds a subsection note to a subsection that already has a subsection note, the notes may be numbered.

NoteAn example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

Explanatory note

This amendment includes examples of some of the more common consequential editorial amendments that are authorised by new section 116 (1) (o), which is inserted by another amendment.

[2.68]Section 116 (2)

substitute

(2)In this section:

law includes a law of another jurisdiction.

law of another jurisdiction—see section 97 (1).

Explanatory note

This amendment remakes the existing definition of law using the term ‘another jurisdiction’.  A definition of that term is inserted in the dictionary, part 2 by another amendment.  The amendment also inserts a definition of law of another jurisdiction to clarify the meaning of that term.

[2.69]Section 125, definition of law

substitute

law means an Act, subordinate law or disallowable instrument.

NoteA reference to an Act, subordinate law or disallowable instrument includes a reference to a provision of the Act, law or instrument (see s 7, s 8 and s 9).

Explanatory note

This amendment revises the definition to omit unnecessary words.  Under the definitions of Act, subordinate law and disallowable instrument in sections 7 to 9, a reference to an Act, subordinate law or disallowable instrument includes a reference to a provision of the Act, law or instrument.  The amendment also inserts a note to this effect.

[2.70]Section 126 (8)

substitute

(8)In applying this section to an Act or statutory instrument that is divided otherwise than into sections, a reference to a section or subsection is a reference to a corresponding provision of the Act or instrument.

NoteA reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 13).

Explanatory note

This amendment remakes subsection (8) so that it is expressed to apply to an Act or statutory instrument that is divided otherwise than into sections.  Existing subsection (8) is expressed to apply to a statutory instrument or a provision of a schedule to an Act.  However, to simplify the naming of provisions of statutory instruments and schedules to Acts current drafting practice is to use ‘section’ instead of ‘regulation’ or ‘clause’ and ‘subsection’ instead of ‘subregulation’ or ‘subclause’.  Because of the definition of Act and statutory instrument in sections 7 and 13, the remade subsection will also apply to provisions of an Act or statutory instrument (eg a schedule that sets out a list of items).

[2.71]Section 127 (6)

substitute

(6)In applying this section to an Act or statutory instrument that is divided otherwise than into sections, a reference to a section or subsection is a reference to a corresponding provision of the Act or instrument.

NoteA reference to an Act or statutory instrument includes a reference to a provision of the Act or instrument (see s 7 and s 13).

Explanatory note

This amendment remakes subsection (6) so that it is expressed to apply to an Act or statutory instrument that is divided otherwise than into sections.  Existing subsection (6) is expressed to apply to a statutory instrument or a provision of a schedule to an Act.  However, to simplify the naming of provisions of statutory instruments and schedules to Acts current drafting practice is to use ‘section’ instead of ‘regulation’ or ‘clause’ and ‘subsection’ instead of ‘subregulation’ or ‘subclause’.  Because of the definition of Act and statutory instrument in sections 7 and 13, the remade subsection will also apply to provisions of an Act or statutory instrument (eg a schedule that sets out a list of items).

[2.72]Section 134 (7)

omit

Explanatory note

This amendment omits an unnecessary provision as the provisions to which this section would apply are now all called sections or subsections.

[2.73]Section 134 (8)

renumber as section 134 (7)

Explanatory note

This amendment is consequential on the omission of section 134 (7) by another amendment.

[2.74]Section 135 (6)

omit

Explanatory note

This amendment omits an unnecessary provision as the provisions to which this section would apply are now all called sections or subsections.

[2.75]Section 135 (7)

renumber as section 135 (6)

Explanatory note

This amendment is consequential on the omission of section 135 (6) by another amendment.

[2.76]Table 142, item 2

omit

body

substitute

entity

Explanatory note

This amendment updates language.  Entity is defined in the Legislation Act, dictionary, part 1.

[2.77]Section 146 (4), definitions of applicable law and applicable provision

substitute

applicable law means an Act enacted, or statutory instrument made, after the application date.

applicable provision means a provision inserted after the application date into an Act or statutory instrument that is not an applicable law.

application date means—

(a)for an Act, subordinate law or disallowable instrument—1 January 2000; and

(b)for any other statutory instrument—1 January 2006.

Explanatory note

This amendment has the effect of extending the operation of section 146 (3), from 1 January 2006, to statutory instruments that are not subordinate laws or disallowable instruments.  Section 146 (3) has applied to Acts, subordinate laws and disallowable instruments since 1 January 2000.

As a result of section 146 (3), section 146 (which deals with the meaning of may and must) is a determinative provision in relation to laws and provisions to which section 146 (3) applies (but not other laws or provisions). Determinative provisions may only be displaced expressly or by a manifest contrary intention (see Legislation Act, section 6).

[2.78]Section 156 (1), new example 3

insert

3     In part 6 of an Act (which is headed ‘Part 6 Complaints’), the word a is defined in section 50. The section is not divided into subsections but contains a number of definitions. Section 50 begins with the words ‘In this part:’. However, the dictionary to the Act contains the following definition:

a—see section 50.

The definition of a applies to the entire Act (compare s (2) eg 2).

Explanatory note

This amendment inserts a new example to clarify the application of definitions in dictionaries.  The example is consistent with current drafting practice.

[2.79]Section 156 (2), example 2

substitute

2     In part 6 of an Act (which is headed ‘Part 6 Complaints’), the word a is defined in section 50. The section is not divided into subsections but contains a number of definitions. Section 50 begins with the words ‘In this part:’. However, the dictionary to the Act contains the following definition:

Explanatory note

This amendment updates the section consequent on the repeal of the National Road Transport Commission Act 1991 (Cwlth) and the establishment of the National Transport Commission by the National Transport Commission Act 2003 (Cwlth).  The amendment brings the language of the section into line with current drafting practice.

[3.382]Dictionary, definition of Australian Transport Council

substitute

Australian Transport Council means the Australian Transport Council mentioned in the National Transport Commission Act 2003 (Cwlth), section 4 or its successor.

Explanatory note

This amendment updates the definition consequent on the repeal of the National Road Transport Commission Act 1991 (Cwlth) and the establishment of the National Transport Commission by the National Transport Commission Act 2003 (Cwlth).

[3.383]Dictionary, definition of National Road Transport Commission

substitute

National Transport Commission means the National Transport Commission established by the National Transport Commission Act 2003 (Cwlth) or its successor.

Explanatory note

This amendment is consequent on the repeal of the National Road Transport Commission Act 1991 (Cwlth) and the establishment of the National Transport Commission by the National Transport Commission Act 2003 (Cwlth).

Part 3.59Road Transport (Vehicle Registration) Act 1999

[3.384]Part 1 heading, note

omit

Explanatory note

This amendment is consequential on new notes bring inserted in section 1 by another amendment.

[3.385]Section 1, new notes

insert

Note 1This Act is part of the road transport legislation.  See the Road Transport (General) Act 1999 for various provisions about the administration and enforcement of the road transport legislation generally.

Note 2Other road transport legislation includes the following:

·     Road Transport (Alcohol and Drugs) Act 1977

·     Road Transport (Dimensions and Mass) Act 1990

·     Road Transport (Driver Licensing) Act 1999

·     Road Transport (Public Passenger Services) Act 2001

· Road Transport (Safety and Traffic Management) Act 1999.

Note 3A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).

Explanatory note

This amendment restructures the existing note at part 1 heading in accordance with current drafting practice.

[3.386]Section 3, new note

insert

NoteThe Commonwealth Act mentioned in s 3 (a) (i) has been repealed and replaced by the National Transport Commission Act 2003 (Cwlth), and the agreements scheduled to the repealed Act have been independently terminated and replaced by the Inter-Governmental Agreement for Regulatory and Operational Reform in Road, Rail and Intermodal Transport.

Explanatory note

This amendment adds a new note to give a context to the references in the provision to the National Road Transport Commission Act 1991 (Cwlth) consequent on the repeal of that Act and the establishment of the National Transport Commission by the National Transport Commission Act 2003 (Cwlth).

[3.387]Section 4 heading

substitute

  1. Dictionary

Explanatory note

This amendment brings the heading into line with current drafting practice.

[3.388]Section 16

substitute

  1. Regulations may apply certain documents etc

    (1)A regulation may apply a publication of the National Transport Commission approved, or of matters approved, by the Australian Transport Council or any other instrument as in force from time to time.

    Note 1The text of an applied, adopted or incorporated law or instrument, whether applied as in force from time to time or as at a particular time, is taken to be a notifiable instrument if the operation of the Legislation Act, s 47 (5) or (6) is not disapplied (see s 47 (7)).

    Note 2A notifiable instrument must be notified under the Legislation Act.

    (2)For a regulation, a regulation may define a term defined by this Act (or apply the definition of a term in an instrument mentioned in subsection (1))—

    (a)in the same (or in substantially the same) way as it is defined by this Act; or

    (b)by reference to a matter included in the term as defined by this Act; or

    (c)by reference to a combination of matters included in the term as defined by this Act and in any other term defined by this Act; or

    (d)for applying a publication of the National Transport Commission approved, or of matters approved, by the Australian Transport Council—in the same way as it is defined in the publication despite anything in this Act or other road transport legislation.

    (3)In this section:

    publication of the National Transport Commission includes—

    (a)a document published by or for the National Road Transport Commission under the National Road Transport Commission Act 1991 (Cwlth); and

    (b)a document published for the National Transport Commission.

    NoteThe Commonwealth Act mentioned in par (a) has been repealed and replaced by the National Transport Commission Act 2003 (Cwlth).

Explanatory note

This amendment updates the section consequent on the repeal of the National Road Transport Commission Act 1991 (Cwlth) and the establishment of the National Transport Commission by the National Transport Commission Act 2003 (Cwlth).  The amendment brings the language of the section into line with current drafting practice.

[3.389]Dictionary, definition of Australian Transport Council

substitute

Australian Transport Council means the Australian Transport Council mentioned in the National Transport Commission Act 2003 (Cwlth), section 4 or its successor.

Explanatory note

This amendment updates the definition consequent on the repeal of the National Road Transport Commission Act 1991 (Cwlth) and the establishment of the National Transport Commission by the National Transport Commission Act 2003 (Cwlth).

[3.390]Dictionary, definition of garage address, paragraph (b) (i)

substitute

(i)the vehicle has only 1 registered operator—the home address of the registered operator; or

Explanatory note

This amendment replaces the reference of ‘1 operator’ to ‘1 registered operator’ for consistency with paragraph (b) (ii) and (iii) of the definition.

[3.391]Dictionary, definition of National Road Transport Commission

substitute

National Transport Commission means the National Transport Commission established by the National Transport Commission Act 2003 (Cwlth) or its successor.

Explanatory note

This amendment is consequent on the repeal of the National Road Transport Commission Act 1991 (Cwlth) and the establishment of the National Transport Commission by the National Transport Commission Act 2003 (Cwlth).

[3.392]Dictionary, definition of registered operator, new note

insert

NoteA reference to the registered operator includes each registered operator (see s 29).

Explanatory note

This amendment inserts a note about the extended meaning of the registered operator to assist users of the Act.

Part 3.60Road Transport (Vehicle Registration) Regulation 2000

[3.393]Schedule 1, section 1.1 (1), new note

insert

NoteThe Commonwealth Act mentioned in s (1) has been repealed and replaced by the National Transport Commission Act 2003 (Cwlth).

Explanatory note

This amendment adds a new note to give a context to the references in the provision to the National Road Transport Commission Act 1991 (Cwlth) consequent on the repeal of that Act and the establishment of the National Transport Commission by the National Transport Commission Act 2003 (Cwlth).

[3.394]Schedule 1, section 1.3

omit

Explanatory note

This amendment omits an unnecessary provision about how a provision in the schedule is to be referred to by another provision of the schedule.

[3.395]Dictionary, definition of emergency worker

substitute

emergency worker—see the Road Transport (Safety and Traffic Management) Regulation 2000, section 33 (1), definition of emergency worker.

Explanatory note

The existing definition defines the term by reference to the Road Transport (Safety and Traffic Management) Regulation 1999, dictionary.  That definition was omitted by another enactment without the above definition being consequentially amended.  This amendment corrects that oversight.

[3.396]Dictionary, definition of road tank vehicle

substitute

road tank vehicle has the same meaning as in the 6th edition of the Australian Code for the Transport of Dangerous Goods by Road and Rail as approved by the Competent Authorities Panel, the Australian Committee for the Transport of Dangerous Goods and the Transport Ministers of Australia and published jointly by—

(a)the National Road Transport Commission under the National Road Transport Commission Act 1991 (Cwlth); and

(b)the Federal Office of Road Safety (now known as the Australian Transport Safety Bureau).

NoteThe Commonwealth Act mentioned in par (a) has been repealed and replaced by the National Transport Commission Act 2003 (Cwlth).

Explanatory note

This amendment updates the definition consequent on the repeal of the National Road Transport Commission Act 1991 (Cwlth) and the establishment of the National Transport Commission by the National Transport Commission Act 2003 (Cwlth).

Part 3.61Sale of Motor Vehicles Act 1977

[3.397]Sections 5 and 5A

substitute

  1. Registrar of Motor Vehicle Dealers

    The chief executive must appoint a public servant as Registrar of Motor Vehicle Dealers.

    Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

    Note 2In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

5ADeputy Registrar of Motor Vehicle Dealers

(1)The chief executive must appoint a public servant as Deputy Registrar of Motor Vehicle Dealers.

Note 1For the making of appointments (including acting appointments), see the Legislation Act, pt 19.3.

Note 2In particular, an appointment may be made by naming a person or nominating the occupant of a position (see Legislation Act, s 207).

(2)The deputy registrar may exercise any function of the registrar, subject to any direction of the registrar.

Explanatory note

This amendment corrects an error in the title of the registrar and deputy registrar.  The Statute Law Amendment Act 2003 (No 2), amendment 3.202 updated the appointment provisions but inadvertently used the titles ‘Registrar of Motor Vehicles’ and ‘Deputy Registrar of Motor Vehicles’.

[3.398]Section 52 (1)

omit

, except as provided by the Evidence Act 1971, section 57,

Explanatory note

This amendment removes a redundant reference.  Section 52 relates to a person who appears as a witness at an inquiry before the registrar and refuses to give sworn evidence.  The Evidence Act 1971, section 57 (now repealed) related to a person being asked a question that would tend to incriminate the person or the person’s spouse. It was repealed by the Sexuality Discrimination Legislation Amendment Act 2004 which removed discrimination relating to sexuality and marital status. The Legislation Act, section 170 preserves the common law privilege against selfincrimination and the Evidence Act 1995 (Cwlth), section 128 contains provisions that apply if a witness raises the privilege in a proceeding.

[3.399]Section 66 and sections 70 to 70H

omit

(commencement:  on a day fixed by the Minister by written notice)

Explanatory note

This amendment omits sections that deal with infringement notices.  The Magistrates Court Act 1930, part 3.8 (Infringement notices for certain offences) provides a system of infringement notices for offences against various Acts. Regulations are made under the Magistrates Court Act 1930 that contain the detail for the infringement notice scheme for a particular Act.

The commencement of this amendment is delayed to allow a new Magistrates Court (Sale of Motor Vehicles Infringement Notices) Regulation 2005 to be prepared.

[3.400]Schedule 3

omit

(commencement:  on a day fixed by the Minister by written notice)

Explanatory note

This amendment is consequential on the omission of section 66 and sections 70 to 70H by another amendment.  The commencement of this amendment is delayed because the omission of those sections is delayed.

[3.401]Dictionary, definitions of final infringement notice, infringement notice, notified person, on-the-spot fine, relevant amount, relevant period for payment and schedule 3 offence

omit

(commencement:  on a day fixed by the Minister by written notice)

Explanatory note

This amendment is consequential on the omission of section 66 and sections 70 to 70H by another amendment.  The commencement of this amendment is delayed because the omission of those sections is delayed.

Part 3.62Sale of Motor Vehicles Regulation 1977

[3.402]Section 3 (e)

substitute

(e)for an application by a corporation—whether a director of the corporation is a bankrupt or a debtor under a personal insolvency agreement.

Explanatory note

The Bankruptcy Legislation Amendment Act 2004 (Cwlth) amended the Bankruptcy Act 1966 (Cwlth) to replace the concepts of deed of assignment, deed of arrangement and composition with the new single concept of personal insolvency agreement.  This amendment brings the paragraph into line with the new concept.

Part 3.63Superannuation (Legislative Assembly Members) Act 1991

[3.403]Section7 (1) (d)

substitute

(d)the chief executive of the administrative unit responsible for the Financial Management Act 1996.

Explanatory note

This amendment updates a redundant reference to ‘under Treasurer’.

Part 3.64Supreme Court Act 1933

[3.404]Section 58A (2)

substitute

(2)In this section:

depositions, of a witness, means—

(a)if a record of the depositions was made in accordance with the Magistrates Court Act 1930, section 316 (2) (Record of proceedings)—a transcript of the record certified in accordance with that Act, section 314 (2) (Registrar to give directions for preparation of transcript); or

(b)if the depositions were taken down in writing and signed in accordance with the Magistrates Court Act 1930, section 316 (3)—the depositions taken down and signed.

Explanatory note

This amendment updates cross-references.

Part 3.65Supreme Court Rules 1937

[3.405]Order 80 rule 13

omit

section 108 (Copies of depositions may be obtained by accused)

substitute

section 108 (Accused person may obtain copies of depositions etc)

Explanatory note

This amendment is consequential on the amendment of the Magistrates Court Act 1930, section 108 by another amendment.

Part 3.66Territory Owned Corporations Act 1990

[3.406]Section 1

substitute

  1. Name of Act

    This Act is the Territory-owned Corporations Act 1990.

Explanatory note

This amendment brings the naming section into line with current drafting practice.

[3.407]Section 33B (1)

omit

Affirmative Action (Equal Opportunity for Women) Act 1986

substitute

Equal Opportunity for Women in the Workplace Act 1999

Explanatory note

This amendment updates a reference to a Commonwealth Act.

Part 3.67Territory plan

[3.408]Part A3, clause 6.1, paragraph (c)

omit

by notice published in the Government Gazette pursuant to section 32 of the Land Act,

substitute

by instrument under the Land Act, section 32 (1),

Explanatory note

A variation of the territory plan under Land (Planning and Environment) Act 1991, section 32 is a notifiable instrument. This amendment removes from the clause an unnecessary (and outdated) reference to a notice being published in the Government Gazette.

[3.409]Part A3, clause 8.3

substitute

8.3The formal adoption of an entry on, and removal from, the Register of, a planning guideline is a notifiable instrument and must also be notified in a daily newspaper by the Authority.

NoteA notifiable instrument must be notified under the Legislation Act.

Explanatory note

This amendment omits an outdated reference to the gazette and by providing that an instrument adopting a planning guideline on the Register, or removing it, is a notifiable instrument under the Legislation Act. This amendment reflects the current position applying under transitional provisions of the Legislation Act.

Part 3.68Tertiary Accreditation and Registration Act 2003

[3.410]Section 62 (2)

substitute

(2)The committee must include as members—

(a)people who are, in the council’s opinion, qualified in an area relevant to the courses proposed to be offered by the relevant higher education provider; and

(b)people who are, in the council’s opinion, qualified to assess the financial and management capacity of the higher education provider.

Explanatory note

This amendment makes it clear that a committee must have among its members people who have all the relevant qualifications and that every board member is not required to possess all the relevant qualifications. 

Part 3.69Trustee Act 1925

[3.411]Section 6 (6) (c)

substitute

(c)a separate set of up to 4 trustees may be appointed for any part of the trust property held on trusts that are distinct from those relating to any other part of the trust property even if a new trustee is not to be appointed for the other part;

Explanatory note

This amendment simplifies the paragraph by omitting an unnecessary reference to the plural ‘or parts’ of the trust property (see Legislation Act, section 145 (Gender and number)).

[3.412]Section 14F (1)

omit

instrument creating a trust

substitute

trust instrument

Explanatory note

This amendment uses the defined term trust instrument to omit unnecessary words.

[3.413]Section 14F (4)

omit

instrument creating the trust

substitute

trust instrument

Explanatory note

This amendment uses the defined term trust instrument to omit unnecessary words.

[3.414]Section 22 (3)

substitute

(3)If—

(a)a preferential right to subscribe for shares in a company is offered to the trustee; and

(b)the shares are subject to a special or reserve liability; and

(c)the company is wound up;

the trustee may exercise the right and hold the shares as if they were part of the trustee’s original holding in the company.

Explanatory note

This amendment brings the structure of the subsection with current drafting practice to make its meaning clear.

[3.415]Section 25

substitute

  1. Continued holding

    A trustee is not liable for breach of trust only because the trustee continues to hold an investment after the investment is no longer authorised by the trust instrument or by law.

Explanatory note

This amendment brings the language of the section into line with current drafting practice.

[3.416]Section 27B (1)

substitute

(1)A power to postpone sale is implied in every trust for sale, unless the contrary intention appears in the trust instrument.

Explanatory note

This amendment updates language and makes clear that any contrary intention must be found in the trust instrument.

[3.417]Section 27D (2)

substitute

(2)This section applies to a trust unless the contrary intention appears in the trust instrument.

Explanatory note

This amendment corrects a typographical error.

[3.418]Section 28 (3) (b)

substitute

(b)that the balance of the purchase money is payable in instalments, the first not later than 3 years after the date of the contract of sale and the others at intervals of not longer than 1 year beginning on the day the first instalment is payable, and interest is payable, at least every 6 months, on any unpaid amount;

Explanatory note

This amendment brings the language of the paragraph into line with current drafting practice.

[3.419]Section 36 (1)

substitute

(1)A trustee may give a lease of land in possession for a term of not longer than—

(a)if the trustee has power to manage the land, or holds the land on trust for sale with an express power to postpone the sale—5 years; or

(b)in any other case—3 years.

Explanatory note

This amendment brings the language of the subsection into line with current drafting practice.

[3.420]Section 36 (3)

substitute

(3)Any lease that a trustee is authorised to make under this section, or under the trust instrument or other instrument giving the authorisation, may—

(a)provide for rent increases at times stated in the lease; or

(b)give an option for renewal that does not extend the lease beyond the term for which the trustee is authorised to make the lease.

Explanatory note

This amendment brings the language of the subsection into line with current drafting practice.

[3.421]Section 36 (8)

substitute

(8)The execution of a lease by the lessor is evidence, for the lessee and anyone deriving title from the lessee, of the execution of the lease by the lessee.

Explanatory note

This amendment updates language and omits words made unnecessary by another amendment.

[3.422]Section 43 (4)

omit

in virtue only

substitute

only because

Explanatory note

This amendment updates language.

[3.423]Section 46 (6)

substitute

(6)An appropriation must not, except as otherwise provided in this section, be made in relation to a settled legacy, share or interest, unless 1 of the following consents in writing:

(a)the trustee (if any) of the legacy, share or interest, if the trustee is not making the appropriation;

(b)the person who is, for the time being, entitled to the income.

Explanatory note

This amendment brings the language of the subsection into line with current drafting practice.

[3.424]Section 46 (8)

omit

save

substitute

except that

Explanatory note

This amendment updates language.

[3.425]Section 46 (10)

omit

the same

substitute

it

Explanatory note

This amendment updates language.

[3.426]Section 47 (1)

substitute

(1)If an amount is held in trust for a child, someone with a legal disability or someone who cannot be found, the trustee may pay the amount to the public trustee and, if the amount is paid to the public trustee, must give the public trustee—

(a)a copy of the trust instrument, or, if there is no trust instrument, a statutory declaration setting out the trusts on which the amount is held; and

(b)any information about the disability or identity of the person for whom the amount is held in trust that the public trustee requires.

Explanatory note

This amendment brings the language of the subsection into line with current drafting practice.

[3.427]Section 47 (8)

substitute

(8)This section does not—

(a)deprive a person of any right or remedy to which the person is entitled against a trustee or anyone else; or

(b)require the public trustee to make or continue to make any inquiry or investigation to find out who might be entitled to amounts paid to the trustee under subsection (1) after those amounts have been paid to the Minister under subsection (4).

Explanatory note

This amendment brings the structure of the subsection into line with current drafting practice to make its meaning clear.

[3.428]Section 48

substitute

  1. Receipts

    (1)This section applies if trustees give a written receipt to a person for personal property payable, transferable or deliverable to the trustees under a trust or power.

    (2)The receipt—

    (a)is a sufficient discharge for the property; and

    (b)relieves the person from—

    (i)seeing to the application of the property; or

    (ii)being answerable for any loss or misapplication of the property.

    (3)In this section:

    personal property includes an amount of money.

Explanatory note

This amendment brings the language and structure of the section into line with current drafting practice.

[3.429]Section 49 (1) (e)

omit

whatever

Explanatory note

This amendment omits a redundant word.

[3.430]Section 49 (1) (f)

substitute

(f)for any of those purposes, enter into, give or execute any agreement, instrument or arrangement, or do anything, considered appropriate by the trustees, majority of trustees, or trustee.

Explanatory note

This amendment brings the language of the paragraph into line with current drafting practice.

[3.431]Section 54 (1)

omit

by writing under their hands

substitute

by signed instrument

Explanatory note

This amendment updates language.

[3.432]Section 54A (1) and (2)

substitute

(1)If 2 or more people receive an amount in a fiduciary position (other than as trustees under a will, settlement or like instrument) and deposit the amount with a bank, the bank may, if authorised by them—

(a)pay a cheque drawn on the bank by 1 or more of them or by an agent authorised by them; and

(b)recognise as valid an endorsement on a bill of exchange or promissory note payable to their order if the endorsement is an endorsement by 1 or more of them or by an agent authorised by them.

(2)If a person receives an amount in a fiduciary position (other than as trustee under a will, settlement or like instrument) and deposits the amount with a bank, the bank may, if authorised by the person—

(a)pay a cheque drawn on the bank by an agent authorised by the person; and

(b)recognise as valid an endorsement on a bill of exchange or promissory note payable to the order of the person if the endorsement is an endorsement by an agent authorised by the person.

Explanatory note

This amendment brings the language and structure of the subsections into line with current drafting practice.

[3.433]Section 58

substitute

  1. Powers of attorney

    (1)This section applies if—

    (a)a trustee pays an amount, or does something else, honestly under a power of attorney given by a person; and

    (b)when the trustee does the thing—

    (i)the person is dead or has done something to end the power of attorney; but

    (ii)the trustee is unaware of this.

    (2)The trustee is not liable for doing the thing.

    (3)If the trustee pays an amount to a person (the payee)—

    (a)this section does not affect the rights against the payee of anyone entitled to the amount (an affected person); and

    (b)the affected person is entitled to the same remedies against the payee as the affected person would have had against the trustee.

Explanatory note

This amendment brings the language and structure of the section into line with current drafting practice.

[3.434]Section 62

substitute

  1. Notice affecting a trustee

    (1)A trustee acting for more than 1 trust or estate is not affected by notice of anything in relation to a particular trust or estate if the trustee has notice of it only because the trustee acts for another trust or estate.

    (2)This section does not apply if the trustee is fraudulent.

Explanatory note

This amendment brings the language and structure of the section into line with current drafting practice.

[3.435]Section 64 (1) to (3)

substitute

(1)If a trustee is absent from the ACT or is about to leave the ACT, the trustee may, by registered deed, delegate the execution of the trust.

(2)However, the trustee delegates the execution of the trust only if—

(a)each co-trustee, and anyone else authorised to appoint trustees, consents to the delegation by the deed or another registered deed; and

(b)the delegation is to—

(i)the public trustee; or

(ii)a trustee company; or

(iii)a person living in the ACT who either is a co-trustee or can be appointed a trustee of the trust.

(3)The delegation may be made in relation to all or any part of the trust.

Explanatory note

This amendment brings the structure of the subsection into line with current drafting practice to make its meaning clear.

[3.436]Section 67

substitute

  1. Power of attorney

    (1)A delegation under this part is taken to be a power of attorney within the meaning of the Powers of Attorney Act 1956.

    (2)That Act, other than an excepted provision, applies to the delegation.

    (3)In this section:

    excepted provision means any of the following provisions:

    ·     section 6 (Irrevocable power of attorney for value)

    ·     section 7 (Power of attorney irrevocable for fixed period)

    ·     section 8 (Protection of purchaser under irrevocable power of attorney).

Explanatory note

This amendment brings the language and structure of the section line with current drafting practice.

[3.437]Section 71 (6)

substitute

(6)Subject to subsection (4), the order may vest the property in anyone, in any way and for any interest that the Supreme Court directs, or may release or dispose of any contingent right to a person as the court directs.

Explanatory note

This amendment brings the language of the subsection into line with current drafting practice.

[3.438]Section 71 (8) and (9)

substitute

(8)This section does not prevent the Supreme Court from—

(a)directing a reconveyance or the payment of costs incurred if the order is improperly obtained; or

(b)making a further vesting order.

(9)If a legal interest in property ends because of the dissolution of a corporation, the Supreme Court may, by order—

(a)create a corresponding interest; and

(b)vest the corresponding interest in the person who would have been entitled to the interest if it had not ended.

Explanatory note

This amendment brings the language and structure of the subsections more closely into line with current drafting practice.

[3.439]Section 75 (1) (b)

substitute

(b)in any other case—the Supreme Court may order that the land vests in anyone, in any way and for any estate that the court directs.

Explanatory note

This amendment brings the language of the paragraph into line with current drafting practice.

[3.440]Section 75 (2)

substitute

(2)The order may only be made if—

(a)the mortgagee did not enter into possession, and the amount owing under the mortgage has been paid to a person entitled to receive the amount; or

(b)the person entitled to receive the amount consents to any order for reconveyance of the land.

Explanatory note

This amendment brings the language and structure of the subsection into line with current drafting practice.

[3.441]Section 75 (3) (b)

omit

the same

substitute

the land

Explanatory note

This amendment updates language.

[3.442]Section 75 (5)

substitute

(5)This section does not prevent the Supreme Court from—

(a)directing a reconveyance or the payment of costs incurred if the order is improperly obtained; or

(b)making a further vesting order.

Explanatory note

This amendment brings the language and structure of the subsection into line with current drafting practice.

[3.443]Section 76 (1)

substitute

(1)If the Supreme Court makes an order directing the sale or mortgage of land, the court may make an order vesting the land, or part of it, for any estate the court considers appropriate in the purchaser, the mortgagee, or anyone else.

Explanatory note

This amendment brings the language of the subsection into line with current drafting practice.

[3.444]Section 81 (1) and (2)

omit

by the trust instrument, or by law

substitute

by instrument or by law

Explanatory note

This amendment updates language.

[3.445]Section 82 (1) (d)

substitute

(d)to erect, or join in erecting, a fence of which part is on the land and part on adjoining land;

Explanatory note

This amendment brings the language and structure of the paragraph into line with current drafting practice.

[3.446]Dictionary heading

substitute

Dictionary

(see s 2)

Note 1The Legislation Act contains definitions and other provisions relevant to this Act.

Note 2For example, the Legislation Act, dict, pt 1, defines the following terms:

·     ACT

·     affidavit

·     appoint

·     asset

·     child

·     instrument (see s 14)

·     interest

·     land

·     lawyer

·     month

·     person

·     power

·     proceeding

·     property

·     public trustee

·     registrar-general

·     sign

·     statutory declaration

·     will

·     year.

Explanatory note

This amendment inserts standard dictionary notes in line with current drafting practice that draw to the attention of the reader that the dictionary is not the only source for definitions of terms.

Part 3.70Unit Titles Act 2001

[3.447]New section 12A

insert

12AMeaning of annexed

A unit subsidiary or an easement that is stated by this Act to be annexed to a unit, common property or an estate in leasehold is taken to be appurtenant to the unit, common property or estate.

NoteProperty in a unit subsidiary or easement that is, at law, ‘appurtenant’ to a unit, common property or a leasehold estate is transferred with that estate when the unit, common property or lease is transferred.

Explanatory note

This amendment remakes the dictionary definition as a separate section because it is an important term for the Act.

[3.448]Section 59 (2)

omit

(special purpose funds)

substitute

(a special purpose fund)

Explanatory note

This amendment revises the tagged-term definition in the singular to be consistent with the dictionary definition.

[3.449]Section 71 (1), note

substitute

NoteInformation about representatives of units owned by 2 or more people, or by a company, must be provided to the owners corporation under the following sections:

·     s 41 (Multiple owners of units—authorisation of representatives)

·     s 43 (Company-owned units—authorisation of representatives).

Explanatory note

This amendment replaces an obsolete reference to ‘company representatives’ with ‘a company’.

[3.450]Section 116

substitute

  1. Value of votes

    (1)Every vote at a general meeting is of equal value, unless a poll is taken.

    (2)On a poll, the value of each vote (the voting value) is the value that is proportional to the unit entitlement of the unit for which it is exercised.

Explanatory note

This amendment updates the definition of voting value to bring it into line with current drafting practice.

[3.451]Dictionary, definition of annexed

substitute

annexed—see section 12A.

Explanatory note

This amendment is consequential on the insertion of a new section 12A by another amendment.

[3.452]Dictionary, definition of article

insert

article, for an owner corporation, means an article of the corporation under section 126.

Explanatory note

This amendment inserts a definition of article for an owner’s corporation in line with current drafting practice.

[3.453]Dictionary, definition of company representative

omit

Explanatory note

This amendment omits a definition made obsolete by the existing definition of representative.

[3.454]Dictionary, definition of entitled to vote

substitute

entitled to vote, in relation to a motion at a general meeting of an owners corporation, means a person who is entitled to vote on the motion under section 110.

Explanatory note

This amendment brings the definition into line with current drafting practice.

[3.455]Dictionary, definitions of GST and mortgagee’s representative

omit

Explanatory note

This amendment omits the definition of GST which is defined in the Legislation Act, dictionary, part 1, and omits the definition of mortgagee’s representative made obsolete by the existing definition of representative.

[3.456]Dictionary, definition of schedule of unit entitlement

substitute

schedule of unit entitlement, in relation to a units plan, means the schedule of unit entitlement forming part of the plan under section 8.

Explanatory note

This amendment brings the definition into line with current drafting practice.

[3.457]Dictionary, definition of unit owners’ representative

omit

Explanatory note

This amendment omits a definition made obsolete by the definition of representative.

[3.458]Dictionary, definition of units plan

substitute

units plan means the units plan under section 7.

Explanatory note

This amendment brings the definition into line with current drafting practice.

Part 3.71Victims of Crime (Financial Assistance) Act 1983

[3.459]Section 66 (3)

substitute

(3)In this section:

infringement notice includes an offence notice under the Drugs of Dependence Act 1989.

NoteThe Legislation Act dict, pt 1 defines infringement notice as including an infringement notice under the Magistrates Court Act 1930 or the Road Transport (General) Act 1999.

Explanatory note

This amendment omits existing paragraph (c) which refers to a litter notice under the repealed Litter Act 1977 and updates the list of infringement notices in existing paragraph (d) by substituting new paragraph (b) which relies on the Legislation Act definition of that term. A note about the definition is also inserted.

Part 3.72Waste Minimisation Act 2001

[3.460]Dictionary, note 2

insert

·environment protection authority

Explanatory note

This amendment adds the example ‘environment protection authority’ to the list of defined terms found in the Legislation Act that are used in the Act.

[3.461]Dictionary, definition of EMA

substitute

EPA means the environmental protection authority.

Explanatory note

This amendment updates the definition.  The name of the authority was changed from ‘environmental management authority’ to environmental protection authority’ by the Environment Protection Amendment Act 2001.

[3.462]Further amendments, mentions of EMA

omit

EMA

substitute

EPA

in

·     section 7 (b) (i)

·     section 8 (2) (h)

·     section 9 (2) (b)

·     section 10

·     section 11

·     section 12

·     section 13

·     section 14

·     section 15

·     section 17

·     section 18

·     section 19

·     section 20 (2) (d)

·     section 44

·     section 47

Explanatory note

This amendment is consequential on the new definition of EPA inserted by another amendment.

Part 3.73Workers Compensation Act 1951

[3.463]Section 197 (2) (a)

omit

section 274 (2) (Cases in which appeals may be brought)

substitute

section 274 (2) (Cases in which appeal may be brought)

Explanatory note

This amendment corrects a reference to the Magistrates Court Act 1930, section 274 heading.

Part 3.74Workers Compensation Regulation 2002

[3.464]Section 62 (3)

substitute

(3)The sections of the Act are as follows:

·     section 156 (Information for insurers on application for issue or renewal of policies)

·     section 157 (Information for insurers after renewal of policies)

·     section 158 (Information for insurers after end or cancellation of policies)

·     section 159 (Information for new insurers after change of insurers)

·     section 160 (Six-monthly information for insurers).

Explanatory note

This amendment is consequential on the Workers Compensation Amendment Act 2003 (No 2).  That Act substituted new sections 156 to 160 for sections 156 to 159 of the Workers Compensation Act 1951.  The 2 groups of sections impose essentially similar obligations on insurers but with increased penalties for noncompliance with the obligations.

This amendment confirms editorial amendments made by the parliamentary counsel under the Legislation Act, section 114 for republication number 8 of the regulation. The editorial amendments updated the names of the headings to sections 156 to 159 and added section 160 to the list.

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 17 March 2005.

  2. Notification

    Notified under the Legislation Act on 12 May 2005.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Statute Law Amendment Bill 2005, which was passed by the Legislative Assembly on 3 May 2005.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2005

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