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Interpretation of Legislation (Further
Amendment) Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Clause 1 sets out the purpose of the Act.
Clause 2 provides for the commencement of the Act.
Clause 3 amends section 9 of the Interpretation of Legislation Act 1984
(the ILA). Section 9 provides that Acts passed in each calendar
year shall be numbered in regular arithmetical series beginning
with the number 1 in the order in which they receive Royal
Assent. Clause 3 amends section 9 to provide that a failure to
number Acts as provided in section 9 does not affect the validity,
operation or effect of any Act.
Clause 4 amends provisions in the ILA dealing with the commencement of
Acts. Section 11(1)(b) of the ILA provides that where no day is
fixed for an Act to come into operation it is to come into
operation 28 days after it receives Royal Assent.
Clause 4 amends section 10A to provide for the power to fix a
day or days of commencement where an Act makes no provision
for the commencement of a particular provision of the Act, or
makes no provision for the commencement of the Act or of more
than one provision of the Act. In these circumstances,
commencement will be on proclamation or on the first
anniversary of the passing of the Act (i.e. Royal Assent),
whichever is the earlier.
Clause 4 also amends sections 11(1) and (2) to delete section
11(1)(b) and make sections 11(1) and (2) easier to read.
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Clause 5 substitutes a new section 13 in the ILA. Section 13 sets out the
powers that may be exercised under an Act between the passing
and commencement of an Act. This section is often utilised to
facilitate the practical implementation of an Act prior to its
commencement. For example, it allows for necessary regulations
to be prepared, required office space to be leased and
appointments to be made.
The new section 13 more clearly sets out what powers may be
exercised during this interim period. The new section 13 clarifies
that a person appointed during the interim period can exercise a
power under the Act and a body may meet and exercise a power
in the same manner and subject to the same conditions or
limitations as if the Act were in operation. The exercise of these
powers does not confer a right or impose an obligation on a
person before the commencement of the Act except to the extent
necessary to bring the Act or relevant provision into operation.
For example, the new section 13 will allow a licence to be issued
under an Act during the interim period provided that the licence
does not commence until on or after the day the Act commences.
The new section 13 provides that a person or body appointed can
be remunerated during the interim period. It also provides that
the duration of an appointment during the interim period is not to
be taken into account in calculating the duration of an
appointment after the Act commences. If an Act provides that a
person may be appointed for a three year term the three years will
run from the date of the commencement of the Act not from the
date of the appointment in the interim period.
Clause 6 inserts a new section 14(2A) and 28(2A) into the ILA.
Section 14 provides for the effect of a repeal of an Act or where
it otherwise ceases to have effect. Clause 6 adds to this section
to clarify that where an Act contains a provision that--
· is of a saving or transitional nature; or
· validates anything that would otherwise be invalid; or
· requires a reference to an entity or a class of entity in an
Act or subordinate instrument or other instrument to be
construed as a reference to another entity or class of
entities--
the repeal of the provision, or where the provision otherwise
ceases to operate, does not affect the operation of that provision.
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Section 28 provides for the effect of a repeal of a subordinate
instrument or where it otherwise ceases to have effect.
New section 28(2A) clarifies section 28 in a manner consistent
with the amendments made to section 14.
Clause 7 inserts new section 17(1A) and 31(1A) in the ILA. Section 17 of
the ILA provides for the construction of references in Acts to
other enactments. Section 31 of the ILA similarly provides for
the construction of references in subordinate instruments to other
enactments. Victorian Acts and subordinate instruments
sometimes refer to provisions of enactments in other
jurisdictions. On occasion, other jurisdictions insert a provision
into an enactment that allows for the automatic renumbering of
provisions in the enactment or the relocation of provisions within
the enactment following significant amendments. This technique
helps to avoid the awkward numbering of sections that can result
from the insertion of numerous new provisions into an Act.
New sections 17(1A) and 31(1A) provide that if a provision in an
enactment of another jurisdiction is renumbered or relocated the
reference in the Victorian Act or subordinate instrument is to be
construed as a reference to the provision as renumbered or
relocated unless the contrary intention appears. This will help
avoid the need to make immediate amendments to Victorian
legislation when another jurisdiction renumbers enactments.
Clause 8 substitutes a new section 26 in the ILA. Section 26 of the Act
makes provision for the exercise of powers between the making
and commencement of a subordinate instrument in a manner
similar to the new section 13.
Clause 9 inserts a number of new definitions of commonly used terms in
section 38 of the ILA. Section 38 defines many terms that have
application across all Acts and subordinate instruments unless the
contrary intention appears.
Clause 10 inserts a new section 38AAA into the ILA to provide that where
reference is made in an Act or subordinate instrument to a
particular Department and the name of the Department is
changed under the Public Administration Act 2004 then the
reference is to be taken to be a reference to the Department by its
new name from the date that the name is changed and so far as it
relates to any period on or after that date.
Clause 11 inserts a new section 38AA(1A) into the ILA to recognise
references to "Australian/New Zealand Standard" or "AS/NZS"
as references to the standards published jointly by or on behalf of
Standards Australia and the Standards Council of New Zealand.
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Clause 12 inserts a new section 46A into the ILA dealing with the
construction of provisions relating to bodies representing the
Crown. This new section has been inserted in response to the
recent High Court decision in McNamara v Consumer Trader
and Tenancy Tribunal and Roads and Traffic Authority [2005]
HCA 55. In the McNamara case, the High Court found that a
statutory body did not have the benefit of Crown immunity even
though it was described in legislation as representing the Crown.
Until McNamara, it was presumed that describing an entity as
"representing the Crown" in a statute gave the entity the benefit
of Crown immunity. Those entities may be exposed to liabilities
and obligations to which it was never intended that they be
exposed. Many other statutes describe an entity as not
representing the Crown. The intention in these statutes is that the
entity not have the status, privileges and immunities of the Crown
unless the contrary intention appears. New section 46A(1)
provides that where an entity is described in an Act or
subordinate legislation as representing the Crown then the
entity is to have for all purposes the status, privileges and
immunities of the Crown unless a contrary intention appears.
Conversely, section 46A(2) provides that where an Act or
subordinate instrument provides that an entity does not represent
the Crown the entity does not have for any purpose the status,
privileges and immunities of the Crown unless a contrary
intention appears. New section 46A(3) is intended to ensure that
no implication arises from an Act or subordinate instrument not
stating whether or not an entity represents or does not represent
the Crown. New section 46A(4) defines the Crown for the
purposes of this section as including the State. This will ensure
that the new section will apply to Acts (for example, the State
Owned Enterprises Act 1992) that refer to an entity as
representing, or not representing, the State.
Clause 13 inserts a new section 59 in the ILA. Section 59 is a transitional
provision that provides that the amendment in clause 12 to
address the McNamara case will not affect any proceedings
commenced before the commencement of the Act.
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