Australian Capital Territory Current Acts Australian Capital Territory Current Acts(1) A provision of this Act must be applied to an Act or statutory instrument, in accordance with the terms of the provision, except so far as it is displaced.
(2) A determinative provision may be displaced expressly or by a manifest contrary intention.
(3) A non-determinative provision may be displaced expressly or by a contrary intention.
Note For the distinction between a ‘manifest contrary intention' (see s (2)) and ‘contrary intention' (see s (3)), see the examples in this section.
(4) The declaration of a provision as ‘determinative' indicates that it is the intention of the Legislative Assembly that, if the provision is to be displaced at all in a particular case, a more deliberate displacement is required than if the provision were a non-determinative provision.
(5) This section applies despite any presumption or rule of interpretation.
(6) A provision of this Act must not be taken to be displaced by a provision of an Act or statutory instrument so far as the provisions can operate concurrently.
(7) In particular and without limiting subsection (6), a provision of this Act is not displaced by a provision of an Act or statutory instrument because the provisions deal with the same or a similar subject matter.
(8) This section is a determinative provision.
Examples—different kinds of displacement
1 Determinative provision—express displacement
The Collections Regulation Act 1999 (hypothetical), s 83 contains the following provision:
(2) The Legislation Act, section 47 (3) does not apply to a regulation under this Act.
Section 83 (2) illustrates a provision expressly displacing this Act, s 47
(3), a determinative provision.
2 Determinative provision—manifest contrary intention
The Motor Repairers Act 2001 (hypothetical) does not contain a provision like the Collections Regulation Act 1999 , s 83, but s 79 contains the following provision:
(3) A regulation may apply, adopt or incorporate an instrument or provision of an instrument as in force from time to time.
Section 79 (3) illustrates a
provision displacing this Act, s 47 (3), a determinative provision, by a
manifest contrary intention because s 79 (3) clearly contradicts s 47 (3).
3 Non-determinative provision—contrary intention
The master of a vessel is charged with contravening the Liquor Act 2001 (hypothetical), s 126 by selling liquor on or from ‘licensed premises' otherwise than at a time authorised by the Act. It is claimed that the sale took place on the vessel. The Act defines ‘licensed premises' to mean that part or those parts of a building or buildings and of the land adjoining it or them as defined by the licensing court. It is argued that the complaint is defective in that a vessel cannot be ‘licensed premises'. However, s 126 is expressed to apply to ‘a licensee, servant, agent or master who sells liquor on or from licensed premises'. In this case, the reference to ‘master' indicates a contrary intention indicating that the section is intended to apply to liquor sold on or from vessels.
Example—concurrent operation (no displacement)
The Small Clubs Act 2002 (hypothetical) contains the following provision about how notice of the club's annual general meeting may be served on members of a registered small club:
60 Serving notice of annual general meeting
The executive committee of a registered small club may serve notice of the annual general meeting of the club on members by pinning the notice to a noticeboard in the club house.
This Act, s 247, a non-determinative provision, allows a document to be served on an individual under an Act in a number of ways (by giving the document to the individual, by sending it by prepaid post etc), but does not mention pinning the document to a noticeboard as a method of giving the notice.
Section 247 is not displaced by the Small Clubs Act 2002 , s 60, because—
• s 60 does not expressly displace section 247 nor does it indicate a contrary intention (see s 6 (1) and (3)) and, in particular, s 60 does not indicate an intention that the method of service it authorises is to be the only method of serving notice of annual general meetings on members of small clubs; and
• the application of s 247 is not displaced by any presumption or rule of interpretation (see s 6 (5)); and
• s 60 and s 247 can operate concurrently (see s 6 (6)) by allowing complementary methods of service; and
• the fact that s 60 and s 247 deal with the same (or a similar) subject matter does not of itself displace s 247 (see s 6 (7) and also s 6 (5)).
It follows, therefore, that
the executive committee is free to serve notice of the annual general meeting
under s 60 or s 247.