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This is a Bill, not an Act. For current law, see the Acts databases.
STATUTE LAW AMENDMENT BILL 2005 (NO 2)
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Statute Law
Amendment Bill 2005 (No 2)
Contents
Page
Part 1.1 Animal
Diseases Act 2005 4
Part 1.2 Land
(Planning and Environment) Act 1991 5
Part 1.3 Road
Transport (Safety and Traffic Management) Act 1999 5
Part 1.4 Road
Transport (Safety and Traffic Management)
Regulation 2000 6
Part 1.5 Waste
Minimisation Act 2001 6
Part 2.1 Legislation
Act 2001 12
Part
3.1 Administrative Decisions (Judicial Review)
Act 1989 27
Part 3.2 Building
Regulation 2004 59
Part 3.3 Business
Names Act 1963 59
Part
3.4 Cooperatives Act
2002 74
Part 3.5 Domestic
Animals Act 2000 74
Part 3.6 Electricity
(Greenhouse Gas Emissions) Act 2004 86
Part 3.7 Electricity
(Greenhouse Gas Emissions) Regulation 2004 87
Part 3.8 Electricity
(National Scheme) Act 1997 88
Part 3.9 Environment
Protection Act 1997 90
Part 3.10 Health Act
1993 91
Part 3.11 Holidays
Act 1958 92
Part
3.12 Independent Competition and Regulatory
Commission Act 1997 94
Part 3.13 Juries Act
1967 96
Part 3.14 Land
Titles (Unit Titles) Act 1970 99
Part 3.15 Mercantile
Law Act 1962 101
Part 3.16 Nudity Act
1976 110
Part 3.17 Oaths and
Affirmations Act 1984 111
Part 3.18 Ombudsman
Act 1989 112
Part 3.19 Sale of
Goods Act 1954 114
Part 3.20 Utilities
Act 2000 116
Part 4.1 Banking
Acts 118
2005
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Attorney-General)
Statute Law Amendment
Bill 2005 (No 2)
A Bill for
An Act to amend certain legislation for the purpose of statute law
revision
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Statute Law Amendment Act 2005 (No 2).
(1) This Act commences 21 days after its notification day.
Note The 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: the later of the
commencement of the Criminal Code Harmonisation Act 2005 or the day this
Act commences)’ means that the amendment is taken to have commenced on the
later of the commencement of the Criminal Code Harmonisation Act 2005 or
this Act.
Note An 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).
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.
A note included in this Act is explanatory and is not part of this
Act.
Note See 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.
6 Legislation
repealed—sch 4
(1) This Act repeals the legislation mentioned in schedule 4.
(2) Each Act mentioned in schedule 4 is declared to be a law to which the
Legislation Act, section 88 (Repeal does not end effect of transitional
laws etc) applies.
Schedule
1 Minor
amendments
(see s 5)
Part
1.1 Animal Diseases Act
2005
substitute
(f) the artificial breeding of stock;
Explanatory note
Existing section 90 (f) provides for the making of regulations in relation
to the use of semen in artificial insemination of stock. This amendment ensures
that the regulation-making power covers all artificial breeding procedures for
stock and all equipment used in those procedures (compare Stock Diseases
Amendment (Artificial Breeding) Act 2004 (NSW)).
omit
stock
Explanatory note
This amendment updates the provision consequent on the amendment of the
definition of tag by the next amendment. The provision presently
provides for the making of regulations in relation to the requirements of stock
tags. The next amendment clarifies the meaning of tag to mean a
tag etc ‘designed to be attached or placed on tagable stock to identify
stock for this Act’. The reference to ‘stock’ in this
provision, therefore, becomes redundant.
[1.3] Dictionary,
definition of tag
substitute
tag means a tag, label, mark or electronic device designed to
be attached to or placed on tagable stock to identify stock for this
Act.
Explanatory note
This amendment clarifies the meaning of the definition of tag
and links it more clearly to the Act.
Part
1.2 Land (Planning and Environment)
Act 1991
[1.4] Section
249 (2) (b)
substitute
(b) if an objection is made to the relevant application under
section 237, but an application is not made to the AAT for review of the
decision within 4 weeks after the day the person was notified of the
decision—on the day after the end of the 4-week period; or
Explanatory note
Under the Land (Planning and Environment) Act 1991, section 276 (3)
an objector or third-party may apply to the administrative appeals tribunal (the
AAT) for review of certain decisions within 4 weeks after the day
the person is notified of the decision. By contrast,
section 249 (2) (b) presently provides that, if an objection was
made to an application for approval to undertake a development (see s 222), but
an application to the AAT for the review of that decision is not made
‘within 4 weeks after the day of the decision’, the approval takes
effect ‘on the day after the end of the period of
4 weeks’.
Consequently, as the provisions presently stand, an approval can take
effect before the end of the period for making an application to the AAT for
review of the decision to give the approval. This is because the period after
which the approval becomes effective, and the application period for AAT review,
can begin on different days. This will be the case if the objector or
third-party is not notified of the decision on the day it is made.
This anomaly is removed by bringing the operation of section 249 (2) (b)
into line with the time limit in section 276 (3) for applying for AAT review.
The amendment gives effect to the suggestion of the AAT in Tonks and ACT
Planning and Land Authority, [2005] ACTAAT 8, paragraph 12, that the
Act should be amended to ensure consistency between the 2 provisions.
Part
1.3 Road Transport (Safety and Traffic
Management) Act 1999
substitute
(2) In a proceeding for an offence against this part, it is sufficient to
prove a vehicle was loaded unsafely if the prosecution proves the load on the
vehicle was not placed, secured or restrained in a way that met the standards
prescribed by regulation.
Explanatory note
This amendment omits a reference to an out-of-date publication presently
mentioned in the subsection and provides for the applicable standards to be
prescribed by regulation.
Part
1.4 Road Transport (Safety and Traffic
Management) Regulation 2000
insert
115 Standards for safe carriage of loads—Act, s
14 (2)
The prescribed standards are the performance standards in the Load
Restraint Guide—Guidelines and Performance Standards for the Safe Carriage
of Loads on Road Vehicles, 2nd ed (2004) published by the National Transport
Commission.
Explanatory note
This amendment is consequential on the amendment of the Road Transport
(Safety and Traffic Management) Act 1999 and prescribes the current
standards for the safe loading of vehicles.
Part
1.5 Waste Minimisation Act
2001
substitute
10 Chief executive to give public notice of proposed
IWRP
Explanatory note
This amendment changes a reference to ‘EPA’ (the Environment
Protection Authority) to ‘chief executive’ and brings the heading
more closely into line with the scope of the section.
References within the Act to ‘EPA’ are being changed to
‘chief executive’ to enable administrative responsibility for the
Act to be set in the usual way by administrative arrangements under the
Self-Government Act and the Public Sector Management Act 1994. Under the
Legislation Act, section 163, a reference in a provision of an Act or statutory
instrument to the chief executive is a reference to the chief executive
of the administrative unit responsible for the provision (unless different
administrative units are responsible for the provision in relation to different
matters).
substitute
11 Industry members may be required to give
background information
Explanatory note
This amendment brings the heading more closely into line with the wording
of the section and omits a reference to ‘EPA’ consequent on another
amendment.
omit 1st mention of
EPA
substitute
The chief executive
Explanatory note
This amendment changes a reference to ‘EPA’ to ‘chief
executive’.
omit
EPA
substitute
The chief executive
Explanatory note
This amendment changes a reference to ‘EPA’ to ‘chief
executive’.
[1.11] Section
14 heading
14 Preparation of IWRP by chief executive without
negotiation
Explanatory note
This amendment changes a reference to ‘EPA’ to ‘chief
executive’.
substitute
(2) A draft IWRP prepared under this section may be prepared without
complying with the following sections:
• section 10 (Chief executive to give public notice of proposed
IWRP)
• section 12 (Report on how IWRP is to be prepared)
• section 13 (Preparation of IWRP—process of
negotiation).
Explanatory note
This amendment changes a reference to ‘EPA’ to ‘chief
executive’.
omit
submit
substitute
refer
Explanatory note
This amendment brings the language of section 15 (3) into line with the
language of section 15 (2).
omit
given
substitute
referred
Explanatory note
This amendment brings the language of section 17 (1) into line with the
language of section 14 (8) and section 15 (4).
substitute
(5) The chief executive must also—
(a) give a copy of the IWRP to any industry member or other person who
made a submission, or who provided information under section 11 (Industry
members may be required to give background information), or who was otherwise
involved in the negotiation of the plan, under this division; and
(b) make copies of the IWRP available for inspection or purchase by
anyone.
Explanatory note
This amendment changes references to ‘EPA’ to ‘chief
executive’ and corrects a provision reference.
substitute
19 Contravention of IWRP—annual
report
A report prepared for a financial year under the Annual Reports
(Government Agencies) Act 2004 by the administrative unit responsible for
the administration of this Act must include details of each contravention during
the year of a requirement of a notice under section 18.
Note Financial year has an extended meaning in the Annual
Reports (Government Agencies) Act 2004.
Explanatory note
This amendment is consequential on the changing of references to
‘EPA’ to ‘chief executive’.
omit
Explanatory note
This amendment is consequential on the changing of references to
‘EPA’ to ‘chief executive’. Because the EPA
responsibilities are being transferred to the chief executive, delegation
formerly provided by this section is no longer needed. The Public
Sector Management Act 1994 provides for the making of a delegation by a
chief executive.
[1.18] Dictionary,
definition of EPA
omit
Explanatory note
This amendment omits the definition of ‘EPA’ from the
dictionary because it is no longer needed.
[1.19] Further
amendments, mentions of EPA
omit
EPA
substitute
the chief executive
in
• section 7 (b) (i)
• section 8 (2) (h)
• section 9 (2) (b)
• section 10 (1) and (2)
• section 11 (1) (other than 1st mention)
• section 11 (3)
• section 12 (2) and (3)
• section 13 (1) (a) and (2)
• section 14 (1), (2), (3), (4) and (5)
• section 15 (1) and (3)
• section 17 (3) and (4)
• section 18 (1) and (4)
• section 20 (2) (d)
• section 44.
Explanatory note
This amendment changes references to ‘EPA’ to ‘the chief
executive’.
Schedule
2 Structural
amendments
(see s 5)
Part
2.1 Legislation Act
2001
substitute
(b) if it is not practicable to notify the making of the proposed law in
the register—notify the making of the law in the gazette.
Explanatory note
This amendment clarifies when the parliamentary counsel is required to
notify the making of a proposed law in the gazette. The amendment is consistent
with the Legislation Act, section 20 (which requires the parliamentary counsel
to ensure that anything the parliamentary counsel is required to do in relation
to the register is done promptly) and section 22 (1) (which requires the
parliamentary counsel to ensure, as far as practicable, that a copy of the
material mentioned in section 19 (1) and (2) is accessible at all times on an
approved web site). Uploads from the legislation register to the approved web
site are normally made during the night of the day when laws and instruments are
notified in the register. Although they are invariably available at the
approved web site at the beginning of the next working day, they are not always
available before midnight on the day of notification.
omit
within
substitute
not later than
Explanatory note
The Legislation Act, section 28 (8) requires the parliamentary counsel to
give the Minister a statement if the making of a proposed law is notified in the
gazette rather than the legislation register and copies of the proposed law are
not available in accordance with the gazette notice. This amendment makes it
clear that a copy of the statement may be presented to the Legislative Assembly
on the gazette date and need not wait until the following day.
omit
within
substitute
not later than
Explanatory note
The Legislation Act, section 34 (4) requires the relevant Minister to
arrange for a regulatory impact statement to be prepared for a subordinate law
if a RIS exemption for the law is disallowed by the Legislative Assembly. This
amendment makes it clear that the regulatory impact statement may be presented
to the Legislative Assembly on the disallowance day.
substitute
(b) if it is not practicable to notify the making of the instrument in the
register—notify the making of the instrument in the gazette.
Explanatory note
This amendment clarifies when the parliamentary counsel is required to
notify the making of a registrable instrument in the gazette. The amendment is
consistent with the Legislation Act, section 20 (which requires the
parliamentary counsel to ensure that anything the parliamentary counsel is
required to do in relation to the register is done promptly) and section 22 (1)
(which requires the parliamentary counsel to ensure, as far as practicable, that
a copy of the material mentioned in section 19 (1) and (2) is accessible at all
times on an approved web site). Uploads from the legislation register to the
approved web site are normally made during the night of the day when laws and
instruments are notified in the register. Although they are invariably
available at the approved web site at the beginning of the next working day,
they are not always available before midnight on the day of
notification.
omit
within
substitute
not later than
Explanatory note
The Legislation Act, section 61 (7) requires the parliamentary counsel to
give the Minister a statement if the making of a registrable instrument is
notified in the gazette rather than the legislation register and copies of the
instrument are not available in accordance with the gazette notice. This
amendment makes it clear that a copy of the statement may be presented to the
Legislative Assembly on the gazette date and need not wait until the following
day.
omit
within
substitute
not later than
Explanatory note
This amendment makes it clear that a subordinate law or disallowable
instrument can be presented to the Legislative Assembly on the day it is
notified.
omit
within
substitute
not later than
Explanatory note
This amendment makes it clear that notice of a motion to disallow a
subordinate law or disallowable instrument can be given in the Legislative
Assembly on the day the law or instrument is presented to the
Assembly.
[2.8] Section
65A (2) (b)
substitute
(b) if it is not practicable to notify the disallowance in the
register—notify the disallowance in the gazette.
Explanatory note
This amendment clarifies when the parliamentary counsel is required to
notify the disallowance of a subordinate law or disallowable instrument in the
gazette. The amendment is consistent with the Legislation Act, section 20
(which requires the parliamentary counsel to ensure that anything the
parliamentary counsel is required to do in relation to the register is done
promptly) and section 22 (1) (which requires the parliamentary counsel to
ensure, as far as practicable, that a copy of the material mentioned in section
19 (1) and (2) is accessible at all times on an approved web site). Uploads
from the legislation register to the approved web site are normally made during
the night of the day when laws and instruments are notified in the register.
Although they are invariably available at the approved web site at the beginning
of the next working day, they are not always available before midnight on the
day of notification.
omit
after
substitute
beginning on
Explanatory note
This amendment makes it clear that section 67 prevents an instrument the
same in substance as a disallowed subordinate law or disallowable instrument
being made on the day of the disallowance.
omit
within
substitute
not later than
Explanatory note
This amendment makes it clear that notice of a motion to amend a
subordinate law or disallowable instrument can be given in the Legislative
Assembly on the day the law or instrument is presented to the
Assembly.
[2.11] Section
69 (2) (b)
substitute
(b) if it is not practicable to notify the amendment in the
register—notify the amendment in the gazette.
Explanatory note
This amendment clarifies when the parliamentary counsel is required to
notify in the gazette the amendment by the Legislative Assembly of a subordinate
law or disallowable instrument. The amendment is consistent with the
Legislation Act, section 20 (which requires the parliamentary counsel to ensure
that anything the parliamentary counsel is required to do in relation to the
register is done promptly) and section 22 (1) (which requires the parliamentary
counsel to ensure, as far as practicable, that a copy of the material mentioned
in section 19 (1) and (2) is accessible at all times on an approved web site).
Uploads from the legislation register to the approved web site are normally made
during the night of the day when laws and instruments are notified in the
register. Although they are invariably available at the approved web site at
the beginning of the next working day, they are not always available before
midnight on the day of notification.
omit
after
substitute
beginning on
Explanatory note
This amendment makes it clear that section 70 prevents an instrument the
same in substance as a subordinate law or disallowable instrument amended by the
Legislative Assembly being made on the day the amendment was made.
[2.13] Section
71 (1) (a) and (b)
omit
within
substitute
not later than
Explanatory note
The amendment of section 71 (a) is consequential on an identical amendment
made to section 65 (1) and section 68 (2).
The amendment of section 71 (1) (b) makes it clear that section 71 applies
if the Legislative Assembly is dissolved or expires on the day a notice of
motion to disallow or amend a subordinate law or disallowable instrument is
given in the Assembly.
substitute
151 Working out periods of time
generally
(1) This section applies in working out periods of 1 day or longer for an
Act or statutory instrument, whether the period is a period in the future or the
past.
Note 1 The following definitions in the dictionary, pt 1 are also
relevant to periods of time:
• business day
• calendar month
• calendar year
• financial year
• midnight
• month
• named month
• quarter
• working day
• year.
Note 2 The Standard Time and Summer Time Act 1972 deals with
the meaning of a reference to a time.
(2) A period of time described as beginning at, on or with a stated day,
act or event includes the stated day or the day of the stated act or
event.
(3) A period of time described as beginning from or after a stated day,
act or event does not include the stated day or the day of the stated act or
event.
(4) A period of time described as ending at, by, on or with, or as
continuing until, a stated day, act or event includes the stated day or the day
of the stated act or event.
(5) A period of time described as ending before a stated day, act or event
does not include the stated day or the day of the stated act or event.
(6) A reference to a number of days between 2 events does not include the
days when the events happen.
Example
A court rule requires a notice of motion to be served 2 days before the
return date for the application. If the return date is Friday, that day and the
day the application is served are not counted in working out the 2 days. For
service to be valid, the application must be served on or before the Tuesday
before the return date.
Note An 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).
(7) This section is a determinative provision so far as it applies to an
applicable law or applicable provision.
Note See s 5 for the meaning of determinative provisions, and s 6
for their displacement.
(8) In this section:
applicable law means an Act enacted, or statutory instrument
made, after 1 January 2006.
applicable provision means a provision inserted after
1 January 2006 into an Act or statutory instrument that is not an
applicable law.
inserted, for a provision, includes inserted in substitution
for another provision.
(9) This section does not apply to a period beginning before the
commencement of this section.
(10) Subsection (9) and this subsection are declared to be laws to which
the Legislation Act, section 88 (Repeal does not end effect of transitional law
etc) applies.
(11) Subsections (9) and (10) and this subsection expire 1 year after the
day this section commences.
151A Periods of time ending on non-working
days
(1) This section applies if—
(a) under an Act or statutory instrument, something must or may be done on
a particular day or within a particular period of time; and
(b) the day, or the last day of the period, is not a working
day.
(2) The thing must or may be done on the next day that is a working
day.
(3) This section is a determinative provision so far as it applies to an
applicable law or applicable provision.
Note See s 5 for the meaning of determinative provisions, and s 6
for their displacement.
(4) In this section:
applicable law means an Act enacted, or statutory instrument
made, after 1 January 2006.
applicable provision means a provision inserted after
1 January 2006 into an Act or statutory instrument that is not an
applicable law.
inserted, for a provision, includes inserted in substitution
for another provision.
public entity means—
(a) a court or tribunal; or
(b) an administrative unit; or
(c) a statutory-office holder; or
(d) any other entity established for a public purpose under a
law.
working day means—
(a) for doing something at an office (however described) of a public
entity where the thing must or may be done—a day when the office is open;
and
(b) for doing anything else—a day that is not—
(i) a Saturday or Sunday; or
(ii) a public holiday at the place where the thing must or may be
done.
Example for par (a)
filing a document at a court registry
Note An 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).
(5) This section does not apply to something that must or may be done
within a period beginning before the commencement of this section.
(6) Subsection (5) and this subsection are declared to be laws to which
the Legislation Act, section 88 (Repeal does not end effect of transitional law
etc) applies.
(7) Subsections (5) and (6) and this subsection expire 1 year after the
day this section commences.
151B Doing things for which no time is
fixed
(1) This section applies if—
(a) under an Act or statutory instrument, something must or may be done;
but
(b) no time is provided for doing the thing.
(2) The thing must or may be done as soon as possible and as often as
needed.
151C Power to extend time
(1) This section applies if, under an Act or statutory
instrument—
(a) something must or may be done on a particular day or within a
particular period of time; but
(b) a court or other entity has power to extend the time (the
relevant time) for doing the thing.
(2) A person may apply to the court or other entity for the relevant time
to be extended even though the relevant time has ended.
(3) The court or other entity may extend the relevant time even though the
relevant time has ended.
(4) This section is a determinative provision.
Note See s 5 for the meaning of determinative provisions, and s 6
for their displacement.
(5) This section applies only to an applicable law or applicable
provision.
(6) In this section:
applicable law means an Act enacted, or statutory instrument
made, after 1 January 2006.
applicable provision means a provision inserted after
1 January 2006 into an Act or statutory instrument that is not an
applicable law.
inserted, for a provision, includes inserted in substitution
for another provision.
Explanatory note
General
This amendment remakes section 151 to provide comprehensively for working
out the time for doing something required or allowed to be done under an Act or
statutory instrument.
The sections substituted by this amendment do not significantly change the
law presently applying under section 151, but rather deal with a range of cases
not dealt with by the existing section. Because the days on which periods begin
and end are usually expressly dealt with under current ACT drafting practice and
the substituted sections largely reflect the position at common law (see Pearce
and Geddes, Statutory Interpretation in Australia (5th ed),
pars 6.45-6.50), this amendment will not have a significant impact on the
interpretation of the existing ACT statute book. The impact has, in any event,
been minimised by application provisions in the substituted sections.
Nevertheless, the substituted sections should produce greater clarity in the
operation of the statute book and lead to a better understanding of how time is
worked out for statutory provisions. Over time existing provisions of the ACT
statute book will be reviewed for consistency with the substituted sections and
revised as necessary.
Section 151
New section 151 deals with working out periods of time generally. Like
existing section 151 the new section applies in working out periods of 1 day or
longer for an Act or statutory instrument (see section 151 (1)). The new
section applies in working out periods in the past (backwards) as well as in the
future (forwards).
New section 151 is modelled on the Interpretation Act 1999 (NZ),
section 35. The new section is also consistent with the Interpretation Act
1984 (WA), section 61 (1) (a) to (h) with 1 exception discussed below
in relation to new section 151 (6).
New section 151 (2) and (3) provide how the beginning of a period of time
is worked out. New section 151 (4) and (5) provide how the end of a period of
time is worked out. Under the subsections the relevant day at the beginning or
end of the period is excluded or included depending on how the period is
described.
Although new section 151 (2) is fully consistent with the equivalent New
Zealand and Western Australian provisions mentioned above, the application of
the subsection to a period described as beginning ‘on’ a day, act or
event is different to the outcome achieved under equivalent Victorian and
Queensland provisions (see Interpretation of Legislation Act 1984 (Vic),
s 44 (1) and Acts Interpretation Act 1954 (Qld), s 38 (1)). However, new
section 151 (2) is consistent with existing provisions of the Legislation Act
(see eg s 74 (Time of commencement)).
By contrast, new section 151 (3) is consistent with the equivalent
provision of most other Australian jurisdictions in relation to a period
described as beginning ‘from’ a day, act or event (see existing s
151 (3) (a) and Acts Interpretation Act 1901 (Cwlth), s 36 (1);
Interpretation Act 1987 (NSW), s 36 (1); Interpretation of
Legislation Act 1984 (Vic), s 44 (1); Interpretation Act 1984 (WA), s
61 (1) (b); Acts Interpretation Act 1931 (Tas), s 29 (1);
Interpretation Act (NT), s 28 (1)).
New section 151 (6) provides that a reference to a number of days between
events does not include the days when the events happen. The subsection follows
the Interpretation Act 1999 (NZ), section 35 (5). By contrast, the
equivalent Western Australian provisions (Interpretation Act 1984, s 61
(1) (f) and (g)) provide for the same outcome but only if the reference includes
the expression ‘clear’ days, ‘at least’ or ‘not
less than’. If the reference does not include one of these expressions,
the day when the first event happens is included, but the day when the second
event happens is excluded. Queensland (see Acts Interpretation Act 1954,
s 38 (1)) and Tasmania (see Acts Interpretation Act 1931, s 29 (2)) have
interpretation provisions similar to the Western Australian provisions. The New
Zealand approach has been followed because of its simplicity. The Western
Australian, Queensland and Tasmanian provisions require the use of a particular
expression to achieve the outcome that would usually be wanted in provisions for
working out periods of time, namely, allowing a specified period in full. In
the unusual case where this is not the outcome wanted, this can be achieved in
the drafting of the relevant provisions (eg by reducing the allowed period by 1
day).
New section 151 (7) provides that new section 151 is a determinative
provision so far as it applies to an applicable law or applicable provision.
The terms applicable law and applicable provision are
defined in new section 151 (8). New section 151 (7) affects the application of
new section 151 and, in particular, its displacement. Laws and provisions
enacted after 1 January 2006 will have been drafted in the light of the new
section and the section will, therefore, need to be displaced expressly or by
manifest ‘contrary intention’ (see Legislation Act, s 6 (2)). Laws
and provisions enacted on or before 1 January 2006 will not have been drafted in
the light of the new section and the section will, therefore, be able to be
displaced fairly readily by a ‘contrary intention’ (see Legislation
Act, s 6 (3)).
New section 151 (9) ensures that new section 151 does not have
retrospective effect. The subsection is a transitional provision and is expired
by subsection (11). However, to remove any doubt about its continuing effect
after the expiry, subsection (9) is declared by subsection (10) to be a law
to which the Legislation Act, section 88 (Repeal does not end effect of
transitional law etc) applies.
Section 151A
New section 151A deals with extending the time for something to be done if
the day or the last day of the period for the thing to be done is not a working
day (see new s 151A (1)). New section 151A (2) provides for the thing to
be done on the next day that is a working day. Although new section
151A (2) is fully consistent with existing section 151 (4), the definition
of working day (see new s 151A (4), def working day)
has been changed for this section to specifically deal with the time for doing
something at an office of a public entity where the thing must or may be done
(see also new s 151A (4), def public entity). Under the new
definition, a working day for doing something at the office of a public entity
is a day when the entity’s office is open. In any other case, a
‘working day’ is a day that is not a Saturday, Sunday or a public
holiday at the place where the thing must or may be done.
Queensland (see Acts Interpretation Act 1954, s 38 (2) and (5)) and
Tasmania (see Acts Interpretation Act 1931, s 29 (4)) achieve the same
outcome in relation to the filing or registration of documents (and, for
Tasmania, instruments). In those jurisdictions, if the time or period of time
for the filing or registration of a document ends on a day when the office where
the filing or registration is to happen is closed, the time is extended to the
next day when the office is open. In all other cases, if the time or last day
of the period falls on a Saturday, Sunday or public holiday in the place where
the thing is to be done the time is extended to the next day that is not a
Saturday, Sunday or public holiday.
By contrast, other jurisdictions (see Acts Interpretation Act 1901
(Cwlth), s 36 (2); Interpretation Act 1987 (NSW), s 36 (2);
Interpretation of Legislation Act 1984 (Vic), s 44 (3); Interpretation
Act 1984 (WA), s 61 (1) (h) and (2); Acts Interpretation Act 1915
(SA), s 27 (2); Interpretation Act (NT), s 28 (2);
Interpretation Act 1999 (NZ), s 35 (6)) provide for time to be extended
only if the last day of a prescribed period falls on a weekend or public holiday
at the place where the thing is to be done (or bank holiday in the Commonwealth
or New South Wales and bank holiday or public service holiday in Western
Australia).
New section 151A (3) and (5) operate in a corresponding way to new section
151 (7) and (9). The operation of new section 151 (7) and (9) is explained
above. Section 151A (5) is a transitional provision and is expired by
subsection (7). However, to remove any doubt about its continuing effect after
the expiry, subsection (5) is declared by subsection (6) to be a law to which
the Legislation Act, section 88 (Repeal does not end effect of transitional law
etc) applies.
Section 151B
If something must or may be done under an Act or statutory instrument, and
no time is provided for doing the thing, new section 151B provides that the
thing must be done as soon as possible and as often as needed (see new s 151B
(2)). New section 151B follows the approach taken in Queensland which requires
the thing to be done ‘as soon as possible, and as often as the relevant
occasion happens’ (see Acts Interpretation Act 1954, s 38 (4)).
South Australia and Western Australia have similar provisions, requiring the
thing to be done ‘with all convenient speed and as often as the prescribed
occasion arises’ (see Acts Interpretation Act 1915 (SA),
s 27 (3)) or ‘with all convenient speed and as often as occasion
arises’ (see Interpretation Act 1984 (WA), s 63).
Section 151C
New section 151C provides that, if something must or may be done under an
Act or statutory instrument on a particular day, or within a particular period
of time, and a court or other entity has power to extend the time within which
the thing must or may be done, an application may be made for an extension of
time, and the court or other entity may extend the time for doing the thing,
even though the time for doing the thing has ended before the extension of time
is given. This provision follows the approach taken in New South Wales (see
Interpretation Act 1987, s 36 (3)) and Western Australia (see
Interpretation Act 1984, s 64). The new section will remove the need for
provisions of this kind to be included in legislation.
New section 151C (4) provides that new section 151C is a determinative
provision. New section 151C (4) affects the application of section 151C and, in
particular, its displacement. Because new section 151C may (in some cases at
least) represent a change in the law, the section will apply only to laws and
provisions enacted after 1 January 2006 (see section 151C (5) and
(6)). Laws and provisions enacted after 1 January 2006 will have been drafted
in the light of the new section and the section will, therefore, need to be
displaced expressly or by manifest ‘contrary intention’ (see
Legislation Act, s 6 (2)).
omit
may be begun only within
substitute
must be begun not later than
Explanatory note
This amendment makes it clear that a prosecution for an offence to which
section 192 (2) applies may be begun on the day the offence is committed. The
amendment also brings the language of the subsection into line with current
drafting practice (see Legislation Act, s 146).
omit
within
substitute
not later than
Explanatory note
This amendment makes it clear that a prosecution for an offence to which
section 192 (2) applies may be begun on the day the relevant report is made or
given.
[2.17] New
Section 253 (6)
insert
(6) In this section:
Act includes an Act of the Commonwealth.
statutory instrument includes an instrument (whether or not
legislative in nature) made under—
(a) an Act of the Commonwealth; or
(b) another statutory instrument of the Commonwealth ; or
(c) power given by an Act or statutory instrument of the Commonwealth and
also power given otherwise by law.
Explanatory note
This amendment extends the operation of section 253 to functions given to
the Executive by or under Commonwealth laws. The Self-Government Act, section
38A provides that an enactment (that is, a law made by the Legislative Assembly)
may provide for the exercise by a member or members of the Executive of powers
vested in the Executive by or under a Commonwealth Act.
[2.18] Dictionary,
part 1, new definition of territory law
insert
territory law—see law, of the
Territory.
Explanatory note
This amendment inserts a signpost definition of territory law
to assist readers of the Legislation Act.
Schedule
3 Technical
amendments
(see s 5)
Part
3.1 Administrative Decisions (Judicial
Review) Act 1989
[3.1] Section
3 (1), definition of enactment
substitute
enactment means—
(a) an Act or subordinate law; or
(b) the Canberra Water Supply (Googong Dam) Act 1974
(Cwlth).
Note A reference to an Act or subordinate law includes a reference
to a provision of an Act or subordinate law (see Legislation Act, s 7
and s 8).
Explanatory note
This amendment updates the definition.
The existing reference in the definition to a part of an Act or subordinate
law has been omitted. The Legislation Act, section 7 (3) provides that a
reference to an Act includes a reference to a provision of an Act. The
Legislation Act, section 8 (2) provides that a reference to a subordinate law
includes a reference to a provision of a subordinate law.
The existing reference in the definition to the Australian Capital
Territory (Planning and Land Management) Act 1988 (Cwlth), part 10, division
5 has been omitted because that division was a transitional provision that
ceased to have effect 2 years after self-government day.
[3.2] Section
3 (1), definitions of failure and judge
omit
Explanatory note
This amendment omits redundant definitions. The Legislation Act,
dictionary, part 1 now contains definitions of fail and
judge.
[3.3] Section
3 (1), definition of order of review
omit
in respect of
substitute
in relation to
Explanatory note
This amendment brings a connecting phrase into line with current drafting
practice.
[3.4] Section
3 (1), definitions (as amended)
relocate to dictionary
Explanatory note
This amendment relocates the unomitted definitions, as amended, to a new
dictionary that is inserted by another amendment.
[3.5] Section
3, remainder
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition ‘person
aggrieved—see section 3B.’ means that the term
‘person aggrieved’ is defined that section.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the
definition, or another provision of the Act, provides otherwise or the contrary
intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
Explanatory note
This amendment adds standard dictionary and notes provisions. The
definitions in existing section 3 (1) (other than those omitted by another
amendment) are included in the new dictionary that is inserted by a later
amendment. The remaining subsections of section 3 that are still required are
remade by the amendment below.
[3.6] New
sections 3A, 3B and 3C
insert
3A Meaning of making and failure to make
a decision
(1) For this Act, a reference to the making of a decision
includes a reference to—
(a) making, suspending, revoking or refusing to make an order, award or
determination; or
(b) giving, suspending, revoking or refusing to give a certificate,
direction, approval, consent or permission; or
(c) issuing, suspending, revoking or refusing to issue a licence,
authority or other instrument; or
(d) imposing a condition or restriction; or
(e) making a declaration, demand or requirement; or
(f) keeping, or refusing to give up, an article; or
(g) doing or refusing to do anything else;
(2) If provision is made by an enactment for the making of a report or
recommendation before a decision is made, the making of the report or
recommendation is itself taken, for this Act, to be the making of
a decision.
(3) A reference to a failure to make a decision includes a
reference to a failure to make—
(a) a decision mentioned in subsection (1) (a) to (g); or
(b) a report or recommendation mentioned in subsection (2).
Note Fail is defined in the Legislation Act, dict, pt 1, to
include refuse.
3B Meaning of person
aggrieved
(1) For this Act, a reference to a person aggrieved by a
decision includes a reference to—
(a) a person whose interests are adversely affected by the decision;
and
(b) for a decision by way of the making of a report or
recommendation—a person whose interests would be adversely affected if a
decision were, or were not, made in accordance with the report or
recommendation.
(2) For this Act, a reference to a person aggrieved by
conduct that has been, is being, or is proposed to be engaged in for the purpose
of making a decision, includes a reference to a person whose interests are, or
would be, adversely affected by the conduct.
(3) For this Act, a reference to a person aggrieved by a
failure to make a decision includes a reference to a person whose interests are,
or would be, adversely affected by the failure.
3C Meaning of conduct engaged in for purpose
of making decision
For this Act, a reference to conduct engaged in for the
purpose of making a decision includes a reference to the doing of anything
preparatory to the making of the decision, including—
(a) the taking of evidence; or
(b) the holding of an inquiry or investigation.
Explanatory note
This amendment creates separate sections for key concepts of the Act that
are presently located in existing section 3 (2), (3) and (4). The separate
sections will make it easier for readers to find the key concepts. The language
of the new sections has been brought more closely into line with current
drafting practice and new section 3A (3) has been revised to make it clear that
a failure to make a decision, includes a failure to make a report
or recommendation before a decision is made under an enactment.
Existing section 3 (5) (which is about decisions by delegates etc) has not
been re-enacted because the subsection is covered by provisions of the
Legislation Act (see s 184A, s 185, s 220, s 225B and s 239).
Existing section 3 (6) has not been re-enacted because the Supreme Court
Rules 1937 make comprehensive provision for service at an address for
service.
omit
notwithstanding
substitute
despite
Explanatory note
This amendment updates language.
omit
who is
Explanatory note
This amendment omits unnecessary words.
omit
that is made after the commencement of this Act
Explanatory note
This amendment omits a transitional provision that is no longer
needed.
omit
in respect of
substitute
in relation to
Explanatory note
This amendment brings a connecting phrase into line with current drafting
practice.
omit
occurred in connection with
substitute
happened in relation to
Explanatory note
This amendment updates language and brings a connecting phrase into line
with current drafting practice.
omit
in connection with
substitute
in relation to
Explanatory note
This amendment brings a connecting phrase into line with current drafting
practice.
[3.13] Section
5 (1) (e) and (2) (c)
omit
conferred
substitute
given
Explanatory note
This amendment updates language.
omit
constitutes
substitute
is
Explanatory note
This amendment updates language.
omit
shall not be
substitute
is not
Explanatory note
This amendment updates language.
omit
who is
Explanatory note
This amendment omits unnecessary words.
omit
in respect of
substitute
in relation to
Explanatory note
This amendment brings a connecting phrase into line with current drafting
practice.
substitute
(a) that a breach of the rules of natural justice has happened, is
happening, or is likely to happen, in relation to the conduct;
Explanatory note
This amendment updates language and brings a connecting phrase into line
with current drafting practice.
omit
conferred
substitute
given
Explanatory note
This amendment updates language.
substitute
(f) that an error of law—
(i) has been, is being, or is likely to be, committed in the course of the
conduct in the making of the proposed decision; or
(ii) is likely to be committed in the making of the proposed
decision.
Explanatory note
This amendment breaks up a paragraph into subparagraphs to assist its
readability.
omit
conferred
substitute
given
Explanatory note
This amendment updates language.
omit
constitutes
substitute
is
Explanatory note
This amendment updates language.
omit
shall not be
substitute
is not
Explanatory note
This amendment updates language.
substitute
7 Applications for failures to make
decisions
Explanatory note
This amendment updates language.
omit
who is
Explanatory note
This amendment omits unnecessary words.
omit
of the first mentioned person
Explanatory note
This amendment omits unnecessary words.
omit
in respect of
substitute
in relation to
Explanatory note
This amendment brings a connecting phrase into line with current drafting
practice.
omit
who is
Explanatory note
This amendment omits unnecessary words.
omit
in respect of
substitute
in relation to
Explanatory note
This amendment brings a connecting phrase into line with current drafting
practice.
omit everything after
ground
substitute
that the person has a duty to make the decision even though the period has
ended.
Explanatory note
This amendment updates language.
omit
Explanatory note
This amendment omits a section that is made redundant by the Legislation
Act, section 176 (Jurisdiction of courts and tribunals).
substitute
(1) The rights given by section 5, section 6 and section 7 to a person to
seek an order for review—
(a) are additional to the rights of the person to seek a review in another
way; and
(b) must be disregarded for the Ombudsman Act 1989,
section 6 (6).
Explanatory note
This amendment updates language.
omit
Notwithstanding subsection (1)—
substitute
However—
Explanatory note
This amendment updates language.
omit
instituted
substitute
brought
Explanatory note
This amendment updates language.
[3.35] Section
9 (as amended)
renumber as section 8
Explanatory note
This amendment is consequential on the splitting of existing section 11
into 2 new sections by another amendment.
[3.36] Section
10 heading
substitute
10 Applications for order of review must set out
grounds
Explanatory note
This amendment updates language and indicates more clearly the scope of the
section as amended by other amendments.
substitute
An application to the Supreme Court for an order of review must set out the
grounds of the application.
Explanatory note
This amendment omits details that are covered by the Supreme Court Rules
1937 (see o 87).
[3.38] Section
10 (2) to (5)
omit
Explanatory note
This amendment omits these provisions consequentially on their remaking by
the next amendment.
[3.39] Section
10 (as amended)
renumber as section 9
Explanatory note
This amendment is consequential on the splitting of existing section 11
into 2 new sections by another amendment.
substitute
10 Period in which application for order of review
must be made
(1) An application to the Supreme Court for an order of review in relation
to a decision that has been made (including a decision made after the end of the
period within which it was required to be made) must be made within the period
required by subsection (2) (or any further time allowed by the court) if the
terms of the decision were—
(a) recorded in writing; and
(b) set out in a document that was given to the applicant.
Note The court may allow further time after the end of the period
required by s (2) (see Legislation Act, s 151C).
(2) For subsection (1), the period within which an application for an
order of review is required to be made is the period beginning on the day the
decision is made and ending 28 days after the relevant day.
(3) If there is no period prescribed for making an application for an
order for review in relation to a particular decision, the Supreme Court may
refuse to consider an application for an order for review in relation to the
decision if it is of the opinion that the application was not made within a
reasonable time after the decision was made.
(4) If there is no period prescribed for making an application by a
particular person for an order for review in relation to a particular decision,
the Supreme Court may refuse to consider an application by the person for an
order for review in relation to the decision if it is of the opinion that the
application was not made within a reasonable time after the decision was
made.
(5) In forming an opinion for subsection (3) or (4), the
court—
(a) must have regard to—
(i) the time when the applicant became aware of the decision;
and
(ii) if subsection (4) applies—the period prescribed for the making
of an application by anyone else for an order of review in relation to the
decision; and
(b) may have regard to anything else it considers relevant.
(6) In subsection (2):
relevant day means—
(a) if the decision includes, or is accompanied by, a written statement of
reasons for the decision—the day a document setting out the terms of the
decision is given to the applicant; or
Note For the meaning of statement
of reasons, see the dict.
(b) if paragraph (a) does not apply and a written statement of reasons for
the decision is given to the applicant (otherwise than because of a request
under section 13 (1)) not later than 28 days after the day a document
setting out the terms of the decision is given to the applicant—the day
the statement is given to the applicant; or
(c) if paragraph (a) does not apply and the applicant requests the person
who made the decision to give a statement under section 13 (1)—
(i) the day the statement is given to the applicant; or
(ii) the day the applicant is told under section 13 (3) that the applicant
was not entitled to make the request; or
(iii) the day the Supreme Court makes an order under section 13 (6)
declaring that the applicant was not entitled to make the request; or
(iv) the day the applicant is told under section 14 (3) or section 15 (3)
that the statement will not be given to the applicant.
(d) in any other case—the day a document setting out the terms of
the decision.
11 Application for order of review not limited to
grounds in application
The applicant for an order of review is not limited to the grounds set out
in the application but, if the applicant wishes to rely on a ground not set out
in the application, the Supreme Court may direct the application be amended to
state the ground.
Explanatory note
New section 10 remakes existing section 10 (2) to (4) to bring the language
and structure more closely into line with current drafting practice. New
section 11 remakes existing section 10 (5) to bring the language of the
provision more closely into line with current drafting practice.
Existing section 11 deals with a subject (amendment of documents filed in
the Supreme Court) more appropriately dealt with in rules of court.
substitute
(1) If a person (the decision-maker) makes a decision to
which this section applies, a person (the requester) who is
entitled to make an application to the Supreme Court under section 5 in relation
to the decision may, in writing, request the decision-maker to provide a written
statement of reasons in relation to the decision.
Note For the meaning of statement of reasons, see the
dict.
Explanatory note
This amendment simplifies the provision using the definition of
statement of reasons included in the new dictionary that is being
inserted by another amendment and brings the provision more closely into line
with current drafting practice.
[3.42] Section
13 (2) to (8)
substitute
(2) The decision-maker must, as soon as practicable and in any event not
later than 28 days after the day the decision-maker receives the request (the
request day), prepare the statement and give it to the
requester.
(3) If the decision-maker is of the opinion that the requester was not
entitled to make the request, the decision-maker may, not later than
28 days after the request day—
(a) give to the requester written notice of the decision-maker’s
opinion; or
(b) apply to the Supreme Court under subsection (6) for an order declaring
that the requester was not entitled to make the request.
(4) Despite subsection (2), if the decision-maker gives notice under
subsection (3) or applies to the Supreme Court under subsection (6), the
decision-maker is not required to comply with the request
unless—
(a) the court, on an application under subsection (6), orders the
decision-maker to give the statement; or
(b) the decision-maker has applied to the court under subsection (6)
for an order declaring that the requester was not entitled to make the request
and the court refuses the application.
(5) If subsection (4) (a) or (b) applies, the decision-maker must prepare
the statement and give it to the requester not later than 28 days after the day
of the Supreme Court’s decision.
(6) On the application of either the decision-maker or requester under
this subsection, the Supreme Court may make an order declaring that the
requester was, or was not, entitled to make the request.
(7) Despite subsection (2), the decision-maker may refuse to prepare and
give the statement to the requester if—
(a) for a decision the terms of which were recorded in writing and set out
in a document that was given to the requester—the request was made later
than 28 days after the day the document was given to the requester; or
(b) in any other case—the relevant request was not made within a
reasonable time after the decision was made.
(8) If subsection (7) (a) or (b) applies, the decision maker must give to
the requester, not later than 14 days after the request day, written notice
stating—
(a) that the statement will not be given to the requestor; and
(b) the reasons why it will not be given.
(9) For subsection (7) (b), a request for a statement in relation to a
decision is taken to have been made within a reasonable time after the decision
was made if the Supreme Court, on application by the requester, declares that
the request was made within a reasonable time after the decision was
made.
(10) On application by the requester under this subsection, the Supreme
Court may order the decision-maker to give the requester, within a stated
period, an additional statement containing better particulars in relation to
stated matters if the court considers that the statement given to the requester
does not contain adequate particulars, in relation to the decision.
Explanatory note
This amendment brings the language and structure of the provisions more
closely into line with current drafting practice.
renumber as section 13 (11)
Explanatory note
This amendment provides for the consequential renumbering of a
provision.
omit
Explanatory note
This amendment omits a provision that is no longer needed. The Legislation
Act, section 48 provides that power to make an instrument includes power to make
(or not make) different provisions in relation to different matters or different
classes of matters.
omit
subsection (9)
substitute
subsection (11)
Explanatory note
This amendment provides for the consequential updating of a
cross-reference.
[3.46] Section
13 (11) (as amended)
renumber as section 13 (12)
Explanatory note
This amendment provides for the consequential renumbering of a
provision.
substitute
(13) In this section:
decision to which this section applies means a decision to
which this Act applies, other than—
(a) a decision to which the Administrative Appeals Tribunal
Act 1989, section 26 (Person affected by decision may obtain
reasons for decision) applies; or
(b) a decision that includes, or is accompanied by, a statement of
reasons; or
(c) a decision mentioned in schedule 2.
Explanatory note
This amendment provides for the consequential renumbering of a provision
and simplifies the definition using the definition of statement of
reasons included in the new dictionary that is inserted by another
amendment.
omit
, being information that
substitute
if the information
Explanatory note
This amendment brings language more closely into line with current drafting
practice.
[3.49] Section
14 (1) (b) (iv)
substitute
(iv) the giving of which in accordance with the request would be in
contravention of an enactment that expressly imposes on the person to whom the
request is made a duty not to divulge or communicate information of that
kind—
(A) to anyone; or
(B) to anyone, other than a particular person; or
(C) except in particular circumstances.
Explanatory note
This amendment brings the language and structure of the provision more
closely into line with current drafting practice and breaks up the subparagraph
to improve readability.
substitute
(2) If a person has been requested under section 13 (1) to give a
statement to a person—
(a) the person to whom the request is made is not required to include in
the statement any information in relation to which this section applies;
and
(b) if the statement would be false or misleading if it did not include
the information—the person is not required to give the
statement.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice.
omit
shall
substitute
must
Explanatory note
This amendment updates language.
[3.52] Section
15 heading
substitute
15 Ministerial certificate about disclosure of
information
Explanatory note
This amendment brings the heading more closely into line with current
drafting practice.
[3.53] Section
15 (1) to (3)
substitute
(1) This section applies to information relating to a matter if the
Minister certifies, in writing, that the disclosure of information relating to
the matter would be contrary to the public interest—
(a) because it would involve the disclosure of deliberations or a decision
of the Executive or of a committee of the Executive; or
(b) for any other stated reason that could form the basis for a claim in a
judicial proceeding that the information should not be disclosed.
(2) If a person has been requested under section 13 to give a statement to
a person—
(a) the person to whom the request is made is not required to include in
the statement any information in relation to which this section applies;
and
(b) if the statement would be false or misleading if it did not include
the information—the person is not required to give the
statement.
Explanatory note
This amendment brings the language and structure of existing section 15 (1)
and (3) more closely into line with current drafting practice.
This amendment also omits existing subsection 15 (2) that is no longer
needed. Responsibility relating to the ACT was transferred to the Territory in
stages after self-government. Since the completion of the transfer, it is not
appropriate for the Commonwealth to have rights analogous to those of the
Territory under the Act.
omit
subsection (3)
substitute
subsection (2)
Explanatory note
This amendment updates a cross-reference.
omit
shall provide a notice in writing
substitute
must give a written notice
Explanatory note
This amendment updates language.
[3.56] Section
15 (4) and (5) (as amended)
renumber as section (3) and (4)
Explanatory note
This amendment provides for the consequential renumbering of
provisions.
omit
determines
substitute
decides
Explanatory note
This amendment updates language.
omit
motion
substitute
initiative
Explanatory note
This amendment updates language.
[3.59] Section
17 heading
substitute
17 Powers of Supreme Court in relation to
applications for order of review
Explanatory note
This amendment brings the heading more closely into line with current
drafting practice.
[3.60] Section
17 (1) to (3)
omit
in respect of
substitute
in relation to
Explanatory note
This amendment brings a connecting phrase into line with current drafting
practice.
[3.61] Section
17 (1) to (3)
omit
any act or thing in order
substitute
anything
Explanatory note
This amendment updates language.
omit
motion
substitute
initiative
Explanatory note
This amendment updates language.
omit
in respect of
substitute
in relation to
Explanatory note
This amendment updates language.
substitute
19 Intervention by Minister
(1) The Minister may, on behalf of the Territory, intervene in a
proceeding before the Supreme Court under this Act.
(2) If the Minister intervenes in a proceeding—
(a) the Minister is taken to be a party to the proceeding; and
(b) the Supreme Court may, in the proceeding, make orders about costs
against the Territory that the court considers appropriate.
Explanatory note
This amendment brings the language of the section more closely into line
with current drafting practice and remove rights of intervention by the
Commonwealth Attorney-General that are no longer appropriate.
omit
Explanatory note
This amendment omits a provision that is no longer needed. The Legislation
Act, section 48 provides that power to make an instrument includes power to make
(or not make) different provision in relation to different matters or different
classes of matters.
renumber as section 20 (3)
Explanatory note
This amendment provides for the consequential renumbering of a
provision.
substitute
Schedule 1 Decisions to which this Act does
not apply
(see dict, def decision to which this Act
applies)
column 1
item
|
column 2
enactment
|
column 3
decision under
enactment
|
1
|
Building Act 2004
|
• a decision under section 96 (Approval of fidelity fund
schemes)
• a decision under section 107 (Suspension or cancellation of
approval of approved scheme)
|
2
|
Confiscation of Criminal Assets Act 2003
|
• any decision
|
3
|
Crimes (Restorative Justice) Act 2004
|
• any decision
|
4
|
Duties Act 1999
|
• a decision making or forming part of the process of making, or
leading up to the making of, an assessment
• a decision disallowing, completely or partly, an objection to an
assessment
• a decision refusing to amend, completely or partly, an
assessment
|
5
|
Electoral Act 1992
|
• a decision under part 4 (Electorates)
|
6
|
Financial Institutions Duty Act 1987 (which has been
repealed)
|
• a decision making or forming part of the process of making, or
leading up to the making, of an assessment
• a decision disallowing, completely or partly, an objection to an
assessment
• a decision refusing to amend, completely or partly, an
assessment
|
7
|
Gene Technology (GM Crop Moratorium) Act 2004
|
• a decision of the Minister under section 7 (Moratorium
orders)
• a decision of the Minister under section 8 (Exemptions)
|
8
|
Gunghalin Drive Extension Authorisation Act 2004
|
• any decision
|
9
|
Inquiries Act 1991
|
• any decision
|
10
|
Judicial Commissions Act 1994
|
• a decision of the Executive under
section 5 (1), section 16 (3) or section
18
• a decision of a member of the Legislative Assembly to propose a
motion in accordance with section 14 (3) (a) or to give notice of the motion to
the Attorney-General in accordance with section 14 (3) (b)
• a decision of the Attorney-General under
section 16 (1), section 17 (1) or section 23 (3)
• a resolution passed by the Legislative Assembly for the examination
by a judicial commission of a complaint in relation to a judicial officer
• a decision of a judicial commission
|
11
|
Legislation Act 2001
|
• a decision under chapter 5 (Regulatory impact statements for
subordinate laws and disallowable instruments)
|
12
|
Payroll Tax Act 1987
|
• a decision making or forming part of the process of making, or
leading up to the making, of an assessment
• a decision disallowing, completely or partly, an objection to an
assessment
• a decision refusing to amend, completely or partly, an
assessment
|
13
|
Plant Diseases Act 2002
|
• a decision of the Minister under part 3 (Measures for the control
of diseases and pests)
|
14
|
Royal Commissions Act 1991
|
• any decision
|
15
|
Stamp Duties and Taxes Act 1987 (which has been repealed)
|
• a decision making or forming part of the process of making, or
leading up to the making, of an assessment
• a decision disallowing, completely or partly, an objection to an
assessment
• a decision refusing to amend, completely or partly, an
assessment
|
16
|
Taxation Administration Act 1999
|
• a decision making or forming part of the process of making, or
leading up to the making, of an assessment
• a decision disallowing, completely or partly, an objection to an
assessment
• a decision refusing to amend, completely or partly, an
assessment
|
17
|
Water Resources Act 1998
|
• a decision under section 63A (Moratorium on granting licences
etc)
|
Explanatory note
This amendment updates the language and brings the structure of the
schedule into line with current drafting practice. The decisions mentioned in
the schedule have been placed in tabular form, in alphabetical order, to assist
readers to find them more easily. There are no changes of substance.
substitute
Schedule 2 Decisions to which s 13 does not
apply
(see s 13 (13))
2.1 Administration of criminal
justice
A decision relating to the administration of criminal justice and, in
particular—
(a) a decision in relation to the investigation or prosecution of a person
for an offence against a law in force in the ACT; and
(b) a decision in relation to the appointment of an investigator or
inspector for the purposes of such an investigation; and
(c) a decision in relation to the issue of a search warrant under a law in
force in the ACT; and
(d) a decision under a law in force in the ACT requiring the production of
a document, the giving of information or the issue of a subpoena or summons to a
person as a witness.
2.2 Civil proceedings
A decision relating to the bringing or conduct of a civil proceeding,
including a decision relating to, or that may result, in the bringing of a civil
proceeding for the recovery of a financial penalty arising from a contravention
of an enactment and, in particular—
(a) a decision in relation to the investigation of a person for such a
contravention; and
(b) a decision in relation to the appointment of an investigator or
inspector for the purposes of such an investigation; and
(c) a decision in relation to the issue of a search warrant under an
enactment; and
(d) a decision under an enactment requiring the production of a document,
the giving of information or the issue of a subpoena or summons to a person as a
witness.
2.3 Decisions relating to territory
finance
The following decisions:
(a) a decision authorised by an Act to issue an amount out of the public
money of the Territory;
(b) a decision of the Treasurer under the Financial Management Act
1996, section 18 (Treasurer’s advance);
(c) a decision in relation to the enforcement of a judgment or order for
the recovery of an amount by—
(i) the Territory; or
(ii) a public servant in an official capacity;
2.4 Decisions relating to administration of the
public service
A decision relating to—
(a) personnel management (including recruitment, training, promotion and
organisation) in relation to the public service, other than a decision relating
to, and having regard to the particular characteristics of, or other
circumstances relating to, a particular person; or
(b) the promotion, transfer, temporary performance of duties, of or by an
individual officer of the public service; or
(c) the making of an appointment to the public service; or
(d) the engagement of a person as an employee under the Public Sector
Management Act 1994; or
(e) the prevention or settlement of an industrial dispute, or otherwise
relating to industrial matters, in relation to the public service; or
(f) the appointment, or ending of the appointment, of a chief executive
under the Public Sector Management Act 1994.
2.5 Certain other appointment
decisions
A decision relating to—
(a) the making of an appointment under an enactment or to an office
established under an enactment; or
(b) the appointment, or the ending of the appointment, of the commissioner
for public administration; or
(c) the employment, or the ending of employment, of staff under the
Legislative Assembly (Members’ Staff) Act 1989.
Explanatory note
This amendment updates language and brings the structure of the schedule
into line with current drafting practice. The decisions mentioned in the
schedule have been grouped into subject-matter clauses to assist readers to find
them more easily. There are no changes of substance.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1 defines the
following terms:
• fail
• judge
• Minister (see s 162)
• regulation
• Supreme Court
• the Territory.
conduct engaged in for the purpose of making a
decision—see section 3C.
failure to make a decision—see section 3A.
making a decision—see section 3A.
person aggrieved—see section 3B.
statement of reasons, for a decision, means a
statement—
(a) of the findings on material questions of fact; and
(b) referring to the evidence or other material on which the findings were
based; and
(c) giving the reasons for the decision.
Explanatory note
This amendment inserts a new dictionary and standard dictionary notes. The
new dictionary includes signpost definitions for terms defined elsewhere in the
Act and a new definition of statement of reasons to simplify
provisions of the Act.
Part
3.2 Building Regulation
2004
[3.70] Section
16A (3) (h)
omit first mention of
volume 1
substitute
volume 2
Explanatory note
This amendment corrects a typographical error.
Part
3.3 Business Names Act
1963
substitute
1 Name of Act
This Act is the Business Names Act 1963.
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition ‘carrying on
business—see section 4A.’ means that the term
‘carrying on business’ is defined in that section for the
Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
Explanatory note
This amendment brings the naming section into line with current drafting
practice and adds a standard dictionary provision. A new dictionary is inserted
by another amendment.
[3.72] New
sections 4A and 4B
insert
4A Meaning of carrying on business
In this Act:
carrying on business includes establishing a place of
business and soliciting orders for goods or services, but does not
include—
(a) taking or defending a legal proceeding; or
(b) establishing or keeping an account with an authorised deposit-taking
institution; or
(c) making a purchase or sale through an independent contractor;
or
(d) creating evidence of a debt or a charge on property; or
(e) collecting a debt, securing a debt or enforcing a security in relation
to a debt; or
(f) conducting an isolated transaction over not longer than 31 days;
or
(g) investing funds or holding property.
4B When business name taken to be registered in
relation to person
For this Act, a business name is taken to be registered in relation to a
person if it appears from the register that that person either alone or together
with other people is carrying on business under that name.
Explanatory note
This amendment omits the existing interpretation section for the Act and
replaces it with a section (new section 4A) that defines carrying on
business for the Act and another section (new section 4B) replacing
existing section 4 (3).
The definition in new section 4A is consistent with the existing definition
in section 4 (1) as amplified by existing section 4 (2). The terminology of the
definition has been updated in line with the definition of the term in the
Business Names Act 2002 (NSW), section 3 (2).
The other definitions in existing section 4 (1) that are still needed are
included in a new dictionary which is inserted by another amendment.
[3.73] Sections
4A and 4B (as inserted by the Criminal Code Harmonisation Act
2005)
relocate as sections 3 and 4
(commencement: the later of the commencement of the Criminal Code
Harmonisation Act 2005 or the day this Act commences)
Explanatory note
This amendment provides for the consequential renumbering and relocation of
sections proposed to be inserted by the Criminal Code Harmonisation Bill
2005.
[3.74] Section
5 (4) to (7)
substitute
(4) This section does not apply to a person if the person is carrying on
business—
(a) under the proper name of the person and of each other person (if any)
with whom the person is carrying on the business; or
(b) under a registered business name, or under a name mentioned in
paragraph (a), to which are added words indicating that the business is being
carried on in succession to a former owner of the business; or
(c) under an unregistered business name that contains foreign language
characters and is also carrying on the business under a registered business name
that is an English language equivalent of the unregistered business
name.
(5) For this section, a business carried on by a receiver, manager,
administrator or trustee of a person is taken to be carried on by the
person.
(6) If a statement is lodged with the registrar-general under
section 12 (5) (Notification of changes in particulars relating to
registered business names etc) because a person starts carrying on business
under a registered business name, neither the person nor anyone else commits an
offence against this section only because the person carried on business under
that business name before the statement was lodged.
(7) Contravention of this section does not avoid any agreement,
transaction, act or matter.
(commencement: the later of the commencement of the Criminal Code
Harmonisation Act 2005 or the day this Act commences)
Explanatory note
This amendment updates existing section 5 (2) to (5) which is proposed to
be renumbered as section 5 (4) to (7) by the Criminal Code Harmonisation Bill
2005. The substituted provisions use the modern concepts of ‘proper
name’ and ‘foreign language character’ (compare Business
Names Act 2002 (NSW), section 4 (2) and (3)). Definitions of the terms
foreign language character and proper name are
included in the new dictionary which is inserted by another amendment.
New section 5 (4) (c) allows the use of an unregistered business name that
contains foreign language characters if the business is also carried on under a
registered business name that is an English language equivalent.
The amendment also remakes existing section 12 (11) in an updated form as
new section 5 (6). The provision is more appropriately located in section 5
because it relates to the operation of the offence in the section. Another
amendment consequently omits section 12 (11). Existing section 12 (12) is
proposed to be renumbered by the Criminal Code Harmonisation Bill
2005.
omit
shall, for this Act, be deemed
substitute
is, for this Act, taken
Explanatory note
This amendment updates language.
omit
Explanatory note
This amendment omits a provision that is transitional in effect and no
longer needed.
substitute
(d) the proper name, and any former proper name and the proper address of
each applicant; and
Explanatory note
This amendment simplifies and updates the language of the provision using
the definitions of the terms proper name and proper address
that are included in the new dictionary inserted by another
amendment.
substitute
(2) If an applicant is a child, the application must
state—
(a) that the applicant is a child; and
(b) the applicant’s date of birth.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice.
omit
shall, for the purpose of serving any notice or process on the person or
persons under this Act, be deemed
substitute
is, for the purpose of serving any notice or process, is taken
Explanatory note
This amendment updates language.
substitute
(2) The registrar-general must not, except with the Minister’s
approval, exercise a power under subsection (1) in relation to a business name
that was taken to be registered under this Act on its commencement.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice and replaces a reference to an omitted provision
with a description of the provision’s operation.
omit
Explanatory note
This amendment omits a provision that is transitional in effect and no
longer needed.
substitute
(2) If the proper name or proper address of a person in relation to whom a
business name is registered under this Act changes, a statement must be lodged
with the registrar-general, not later than 14 days after the day the change
happens (or any longer period that the registrar-general allows before the end
of the 14-day period), that—
(a) is signed by the person; and
(b) tells the registrar-general the changed name or address and the date
it changed.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice.
omit everything after
required to sign the statement
substitute
, the person’s proper name and proper address and, if the person is a
child, a statement to that effect and the person’s date of
birth.
Explanatory note
This amendment simplifies and updates the language of the provision using
the definitions of the terms proper name and proper address
that are included in the new dictionary inserted by another
amendment.
[3.84] Section
12 (11) and (12)
omit
(commencement: the later of the commencement of the Criminal Code
Harmonisation Act 2005 or the day this Act commences)
Explanatory note
This amendment omits provisions that are no longer needed. Existing
section 12 (12) and (13) are proposed to be renumbered as section 12 (11) and
(12) by the Criminal Code Harmonisation Act 2005. Renumbered section 12
(11) is covered by a provision being inserted into section 5 by another
amendment. Renumbered section 12 (12) has been made redundant by the
Legislation Act, section 49 (Single instrument may exercise several powers or
satisfy several requirements).
omit
Explanatory note
This amendment omits the section. The section is remade as part of section
27 by another amendment.
[3.86] Sections
15 (1) and 19 (2) and (5)
omit
shall be deemed
substitute
is taken
Explanatory note
This amendment updates language.
omit
office copy
substitute
sealed or stamped copy
Explanatory note
This amendment updates a reference to a court order.
[3.88] Section
21 (2) and (3)
substitute
(2) In correcting an error under subsection (1), the
registrar-general—
(a) must not erase the original words or make them illegible; and
(b) must initial and date the correction.
(3) An entry or certificate corrected under this section is as valid as if
the error had not been made.
Explanatory note
This amendment brings the language of the provisions more closely into line
with current drafting practice.
omit everything after
this subsection
substitute
are to be read as one and both form part of the register.
Explanatory note
This amendment updates and simplifies language.
omit
or filed under the repealed Act or any corresponding previous law of the
Territory, which has not been destroyed in pursuance of
substitute
that has not been destroyed under
Explanatory note
This amendment updates language and omits words that are transitional in
effect and no longer needed.
[3.91] Section
23 (1) (b)
substitute
(b) a certificate under the registrar-general’s official seal
stating whether a business name was, on a day or during a period mentioned in
the certificate, registered under this Act in relation to a person.
Explanatory note
This amendment remakes the paragraph to update language and to omit words
that are transitional in effect and no longer needed.
omit
or notice
Explanatory note
This amendment omits words that are redundant.
substitute
25 Registrar-general may destroy etc certain old
documents
The registrar-general may destroy or dispose of any document relating to a
business name that has not been registered for at least 12 years.
Explanatory note
This amendment simplifies language and omits words that are transitional in
effect and no longer needed.
[3.94] Section
26 (1) (b) (i)
omit
, or the firm,
(commencement: the later of the commencement of the Criminal Code
Harmonisation Act 2005 or the day this Act commences)
Explanatory note
This amendment omits a reference to a term no longer used in this
Act
substitute
27 Effect of certain contraventions of Act on legal
proceedings
(1) This section applies to a business name under which business is being
carried on by a person in contravention of this Act if—
(a) the business name is an unregistered business name; or
(b) the business name is a registered business name, but is not registered
in relation to the person; or
(c) the business name is registered in relation to the person but the
person has not complied with section 12 (Notification of changes in particulars
relating to registered business names etc) in relation to the business
name.
(2) If a legal proceeding is started in a court by the person under the
business name, the proceeding is not invalid only because of the contravention,
but the court—
(a) may adjourn the proceeding until the contravention is remedied;
or
(b) may continue to hear and decide the proceeding on an undertaking by
the person to remedy the contravention within the time directed by the
court.
(3) If a legal proceeding is started against the person under the business
name, the following provisions apply:
(a) the proceeding is not invalid only because of the
contravention;
(b) the business name is a sufficient designation of the person in any
process in or in relation to the proceeding;
(c) any judgment or order given in the proceeding may be enforced against
the person.
Explanatory note
This amendment updates existing section 14 and section 27 to reflect the
more modern concepts in the Business Names Act 2002 (NSW), section
23.
omit
shall, in the absence of proof to the contrary, be deemed
substitute
is, in the absence of proof to the contrary, taken
Explanatory note
This amendment updates language.
substitute
31 Service of documents
(1) Service of a process or other document on someone (the
proprietor) who carries on business under a registered business
name is taken to be personal service on the proprietor if—
(a) the document is left at a registered place of business of the
proprietor with someone who appears to be at least 16 years old and to be
employed at the place; or
(b) the document is given to a resident agent of the proprietor;
or
(c) the document is left at the registered address of a resident agent of
the proprietor with someone who appears to be at least 16 years old and to
be employed at the address; or
(d) the document is sent by prepaid post, addressed to the proprietor, to
a registered place of business of the proprietor; or
(e) the document is sent by prepaid post, addressed to a resident agent of
the proprietor, to a registered address of the agent.
(2) This section does not affect the operation of any other law that
allows or requires service of a document otherwise than as provided in this
section.
Note For how documents may otherwise be served, see the Legislation
Act, pt 19.5.
(3) This section does not affect the power of a court or tribunal to allow
or require service of a document otherwise than as provided in this
section.
(4) In this section:
registered address, for a resident agent of the proprietor,
means the place shown in the register as the address of the resident agent in
the ACT.
registered place of business, of the proprietor,
means—
(a) the place shown in the register as the place where business is carried
on under the business name; or
(b) if more than 1 place is shown in the register as the place where
business is carried on under the business name—
(i) the place shown in the register as the principal place where business
is carried on under the business name; or
(ii) if no place is shown in the register as the principal place—the
place that appears 1st in the register as a place where business is carried on
under the business name.
resident agent, for the proprietor, means the person (if any)
shown in the register as the resident agent of the proprietor.
Explanatory note
This amendment updates language and omits parts of existing section 31 that
are now covered by the Legislation Act, part 19.5.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• ACT
• authorised deposit-taking institution
• function
• individual
• Minister (see s 162)
• proceeding
• property
• registrar-general
• the Territory.
business includes trade and profession.
business name means a name, style, title or designation under
which a business is carried on.
carrying on business—see section 4A.
foreign language character includes any character or symbol
that is not an English language letter, numeral or punctuation mark.
initial includes a recognised abbreviation of a given
name.
process includes any application, pleading, order or document
in or relating to any legal proceedings.
proper address means—
(a) for an individual—the individual’s usual home address;
and
(b) for a corporation—the address of the corporation’s
registered office or, if the corporation does not have a registered office, its
main place of business.
proper name means—
(a) for an individual—
(i) the individual’s full name; or
(ii) the individual’s family name, together with the initials or
abbreviations of 1 or more of the individual’s given names; and
(b) for a corporation—the corporation’s corporate
name.
registered business name means a business name registered
under this Act.
the register means the register of business names kept under
this Act.
unregistered business name means a business name that is not
registered under this Act.
Explanatory note
This amendment inserts a dictionary consequential on the omission of the
interpretation section (existing section 4) by another amendment. The language
of the definitions is updated to bring them into line with current drafting
practice and unnecessary definitions are omitted. In particular:
• the definition of christian name has been omitted
because the Act will no longer use the term;
• the definition of carrying on business has been
omitted because it is defined in new section 4A;
• the definition of individual has been omitted because
the term is defined in the Legislation Act, dictionary, part 1.
Part
3.4 Cooperatives Act
2002
substitute
(3) Subsection (2) and this subsection expire on the day after the day
guidelines mentioned in subsection (1) (a) are notified under the
Legislation Act.
Explanatory note
This amendment corrects a minor drafting error.
Part
3.5 Domestic Animals Act
2000
[3.100] Section
56 heading
substitute
56 Seizure of dogs—general
Explanatory note
This amendment substitutes a more explanatory heading.
substitute
(e) the keeper has contravened a condition under section 70 (4)
(Returning seized dog to its keeper).
Explanatory note
This amendment is consequential on the remaking of section 70 by another
amendment.
[3.102] Section
60 (1) (c)
substitute
(c) if the registrar can find out who is the dog’s keeper—give
oral or written notice to the keeper, in accordance with section 61, about
the dog’s seizure.
Explanatory note
This amendment brings the paragraph into line with the equivalent
provisions for cats proposed to be inserted by the Domestic Animals (Cat
Containment) Amendment Bill 2005 (see
s 87 (1) (c)).
[3.103] Sections
61 to 64
substitute
61 Information to be given in notice of dog’s
seizure
If a dog is seized under this part, the notice of seizure under
section 60 (1) (c) must give information about the following:
(a) when and where the dog was seized;
(b) the reason the dog was seized;
(c) where the dog may be claimed;
(d) if the dog is not registered—registration of the dog, including
the cost of registration;
(e) if the keeper does not hold a dangerous dog licence or multiple dog
licence for the dog and the licence is required for the dog—the relevant
licence, including the cost of the licence;
(f) if the dog’s keeper holds a dangerous dog licence for the
dog—the conditions of the licence and that the conditions may be varied or
cancelled;
(g) the fee payable for the release of the dog;
(h) that the dog may be sold or destroyed if it is not claimed;
(i) the period in which the dog may be claimed before it may be sold or
destroyed;
(j) that the keeper may relinquish ownership of the dog.
62 Releasing dogs seized under general seizure
power
(1) This section applies to a dog seized under section 56 (Seizure of
dogs—general) unless the dog is declared to be a dangerous dog after it
was seized.
Note Section 65 deals with the release of a dog declared to be
dangerous after it is seized.
(2) The registrar must release the dog to a person claiming its release
if, but only if, the registrar is satisfied—
(a) the person claiming its release is the dog’s keeper;
and
(b) the dog is registered; and
(c) if the dog was seized under section 56 (a), (b) or (c) because of an
offence against this Act—subsection (3) applies to the offence;
and
(d) the dog’s keeper has not relinquished ownership under
section 69; and
(e) any fee payable under section 144 for the release of the dog has been
paid.
(3) This subsection applies to an offence if—
(a) 28 days have elapsed since the day the offence was committed
and—
(i) a prosecution has not been started for the offence; and
(ii) an infringement notice has not been served for the offence;
or
(b) an infringement notice has been served for the offence and the
infringement notice penalty has been paid or the notice withdrawn; or
(c) a prosecution for the offence was started not later than 28 days after
the day the offence was committed and—
(i) the prosecution has been discontinued; or
(ii) the keeper has been convicted or found guilty of the offence but is
not disqualified by an order under section 138A from keeping the
dog.
63 Releasing dogs seized under power relating to
dangerous dogs or multiple dogs
(1) This section applies to—
(a) a dog seized under section 57 (Seizure—dangerous dogs);
or
(b) a dog seized under section 58 (Seizure—contravention of multiple
dog licence) unless the dog is declared to be a dangerous dog after it was
seized.
Note Section 65 deals with the release of a dog declared to be
dangerous after it is seized.
(2) The registrar must release the dog to a person claiming its release
if, but only if, the registrar is satisfied—
(a) the person claiming its release is the dog’s keeper;
and
(b) the dog is registered; and
(c) if the dog was seized under section 57 (b) or (c)—a dangerous
dog licence is in force for the dog; and
(d) if the dog was seized under section 58—the keeper has any
multiple dog licence needed to keep the dog; and
(e) if the dog was seized because of an offence against this
Act—subsection (3) applies to the offence; and
(f) the dog’s keeper has not relinquished ownership under
section 69; and
(g) any fee payable under section 144 for the release of the dog has been
paid.
Note As a condition of the issue of a dangerous dogs licence, the
registrar can require the dog’s keeper and the dog to complete an approved
course in behavioural or socialisation training for the dog.
(3) This subsection applies to an offence if—
(a) 28 days have elapsed since the day the offence was committed
and—
(i) a prosecution has not been started for the offence; and
(ii) an infringement notice has not been served for the offence;
or
(b) an infringement notice has been served for the offence and the
infringement notice penalty has been paid or the notice withdrawn; or
(c) a prosecution for the offence was started not later than 28 days after
the day the offence was committed and—
(i) the prosecution has been discontinued; or
(ii) the keeper has been convicted or found guilty of the offence but is
not disqualified by an order under section 138A from keeping the
dog.
64 Releasing dogs seized under attacking and
harassing power
(1) This section applies to a dog seized under section 59
(Seizure—attacking and harassing dogs) unless the dog is declared to be a
dangerous dog after it was seized.
Note Section 65 deals with the release of a dog declared to be
dangerous after it is seized.
(2) The registrar must release the dog to a person claiming its release
if, but only if, the registrar is satisfied—
(a) the person claiming its release is the dog’s keeper;
and
(b) the dog is registered; and
(c) the court has not ordered the destruction of the dog under section 50
(4) (Offences of attacking or harassing); and
(d) if the dog was seized under section 59 because of an offence against
this Act—subsection (3) applies to the offence; and
(e) the dog’s keeper has not relinquished ownership under
section 69; and
(f) any fee payable under section 144 for the release of the dog has been
paid.
(3) This subsection applies to an offence if—
(a) 28 days have elapsed since the day the offence was committed
and—
(i) a prosecution has not been started for the offence; and
(ii) an infringement notice has not been served for the offence;
or
(b) an infringement notice has been served for the offence and the
infringement notice penalty has been paid or the notice withdrawn; or
(c) a prosecution for the offence was started not later than 28 days after
the day the offence was committed and—
(i) the prosecution has been discontinued; or
(ii) the keeper has been convicted or found guilty of the offence but is
not disqualified by an order under section 138A from keeping the
dog.
Explanatory note
This amendment brings the sections into line with the equivalent provisions
for cats proposed to be inserted by the Domestic Animals (Cat Containment)
Amendment Bill 2005 (see especially s 88 and s 89).
omit
(Seizure—generally)
substitute
(Seizure of dogs—general)
Explanatory note
This amendment is consequential on the replacement of the heading to
section 56 by another amendment.
[3.105] Sections
66 to 71
substitute
66 Selling or destroying dogs (other than dangerous
dogs) seized under general or attacking and harassing power
(1) This section applies to a dog seized under section 56 (Seizure of
dogs—general) or section 59 (Seizure—attacking and harassing dogs)
unless the dog is a dangerous dog.
Note Section 68 deals with the selling and destruction of dangerous
dogs.
(2) The registrar may sell or destroy the dog if—
(a) not later than 7 days after the day of the seizure, the registrar
cannot find out who is the dog’s keeper after making reasonable inquiries;
or
(b) the dog’s keeper relinquishes ownership of the dog under section
69; or
(c) not later than 7 days after the day notice under
section 60 (1) (c) was given to the dog’s keeper, the
keeper does not tell the registrar, in writing, that the keeper wishes to claim
the dog and, if the dog is not registered, apply to the registrar to register
the dog.
67 Selling or destroying dogs (other than dangerous
dogs) seized under multiple dog licence power
(1) This section applies to a dog seized under section 58
(Seizure—contravention of multiple dog licence) unless the dog is a
dangerous dog.
Note Section 68 deals with the selling and destruction of dangerous
dogs.
(2) The registrar may sell or destroy the dog if—
(a) not later than 7 days after the day of the seizure, the registrar
cannot find out who is the dog’s keeper after making reasonable inquiries;
or
(b) the dog’s keeper relinquishes ownership of the dog under section
69; or
(c) not later than 7 days after the day notice under
section 60 (1) (c) was given to the dog’s keeper, the
keeper does not tell the registrar, in writing, that the keeper wishes to claim
the dog and—
(i) if a multiple dog licence is required for the dog and a multiple dog
licence is not in force for the dog—apply to the registrar for a multiple
dog licence; and
(ii) if the dog is not registered—apply to the registrar to register
the dog.
(3) The registrar may sell or destroy a dog mentioned in
subsection (2) (c) (i) if—
(a) the dog’s keeper applies for a multiple dog licence for the dog;
and
(b) the registrar refuses to issue the licence; and
(c) the keeper receives notice of the registrar’s decision to refuse
to issue the licence; and
(d) either—
(i) the keeper does not, not later than 7 days after the day the keeper
receives the notice (the application period), make an application
under section 119 for review of the decision; or
(ii) the keeper makes an application under section 119 for review of the
decision not later than the application period and the registrar’s
decision to refuse to issue the licence is confirmed.
68 Selling or destroying dangerous dogs
generally
(1) This section applies to a dog seized under this division that is a
dangerous dog, whether the dog was declared to be a dangerous dog before or
after it was seized.
(2) The registrar may sell or destroy the dog if—
(a) not later than 7 days after the day of the seizure, the registrar
cannot find out who is the dog’s keeper after making reasonable inquiries;
or
(b) the dog’s keeper relinquishes ownership of the dog under section
69; or
(c) not later than 28 days after the day notice under
section 60 (1) (c) was given to the dog’s keeper, the
keeper does not tell the registrar, in writing, that the keeper wishes to claim
the dog and—
(i) if a dangerous dog licence is not in force for the dog—apply to
the registrar for a dangerous dog licence; and
(ii) if the dog is not registered—apply to the registrar to register
the dog.
(3) The registrar may sell or destroy a dog mentioned in
subsection (2) (c) (i) if—
(a) the dog’s keeper applies for a dangerous dog licence for the
dog; and
(b) the registrar refuses to issue the licence; and
(c) the keeper receives notice of the registrar’s decision to refuse
to issue the licence; and
(d) either—
(i) the keeper does not, not later than 7 days after the day the keeper
receives the notice (the application period), make an application
under section 119 for review of the decision; or
(ii) the keeper makes an application under section 119 for review of the
decision not later than the application period and the registrar’s
decision to refuse to issue the licence is confirmed.
69 Relinquishing ownership of
dogs
(1) This section applies to a dog seized under this division.
(2) The dog’s keeper may relinquish ownership of the dog by signed
writing given to the registrar.
(3) An instrument relinquishing ownership of the dog—
(a) takes effect at the end of 3 days beginning on the day the signed
instrument is given to the registrar; and
(b) must contain a statement to the effect of paragraph (a).
(4) After an instrument relinquishing ownership of the dog takes effect,
the registrar—
(a) is not obliged to return the dog to its keeper; and
(b) may sell or destroy the dog.
(5) To remove any doubt, the registrar must not sell or destroy the dog
under this section until the instrument relinquishing ownership of the dog takes
effect.
Division
2.8 Miscellaneous
70 Returning seized dog to its
keeper
(1) The registrar may return a dog seized under this part to its keeper
under this section if satisfied that it would be in the public interest to
return the dog.
(2) In making a decision under subsection (1), the registrar must
consider—
(a) the safety of the public; and
(b) the cost of keeping the dog impounded; and
(c) whether financial or other hardship would be caused to the keeper if
the dog were to remain impounded.
(3) Subsection (2) does not limit the matters the registrar may
consider.
(4) The registrar may return the dog to its keeper on
conditions.
(5) If the registrar returns the dog to its keeper under this part, the
registrar may waive all or part of any fee payable by the dog’s keeper
under this part if satisfied that not to waive the fee would cause the keeper
financial hardship.
71 Guidelines about returning impounded
dogs
(1) The Minister may issue guidelines about the exercise of the
registrar’s functions under section 70.
(2) The registrar must comply with any guidelines under this
section.
(3) A guideline is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
Explanatory note
This amendment brings the sections into line with the equivalent provisions
for cats proposed to be inserted by the Domestic Animals (Cat Containment)
Amendment Act 2005 (see s 90 to 93).
[3.106] Section
118, definition of reviewable decision,
paragraph (k)
substitute
(k) imposing a condition on the return of a dog (section 70 (4)
(Returning seized dog to its keeper)); or
Explanatory note
This amendment is consequential on the remaking of section 70 by another
amendment.
Part
3.6 Electricity (Greenhouse Gas
Emissions) Act 2004
[3.107] Section
4, note 1
omit everything after
defined elsewhere.
substitute
For example, the signpost definition ‘National
Electricity (ACT) Law— see the Electricity (National Scheme)
Act 1997, section 5 (Application in ACT of National Electricity Law).’
means that the term ‘National Electricity (ACT) Law’
is defined in that section and the definition applies to this Act.
Explanatory note
This amendment is consequential on the omission of the definition of
‘national electricity code’, and the insertion of the
definition of ‘National Electricity (ACT) Law’,
by other amendments.
[3.108] Dictionary,
definition of market customer
substitute
market customer means a customer that—
(a) has classified any of its electricity loads as a market load under the
national electricity rules; and
(b) is registered with NEMMCO as a market customer under the national
electricity rules.
Explanatory note
This amendment is consequential on a change in terminology under the
uniform National Electricity Law that applies in the ACT because of the
Electricity (National Scheme) Act 1997. Under the uniform law, the
former national electricity code is now known as the national electricity
rules.
[3.109] Dictionary,
new definition of National Electricity (ACT) Law
insert
National Electricity (ACT) Law—see the Electricity
(National Scheme) Act 1997, section 5 (Application in ACT of National
Electricity Law).
Explanatory note
This amendment is consequential on other amendments in relation to a change
in terminology under the uniform National Electricity Law.
[3.110] Dictionary,
definition of national electricity code
omit
Explanatory note
This amendment is consequential on other amendments in relation to a change
in terminology under the uniform National Electricity Law.
[3.111] Dictionary,
new definition of national electricity rules
insert
national electricity rules means the national electricity
rules under the National Electricity (ACT) Law.
Explanatory note
This amendment is consequential on other amendments in relation to a change
in terminology under the uniform National Electricity Law.
Part
3.7 Electricity (Greenhouse Gas
Emissions) Regulation 2004
substitute
(5) In this section:
connection point has the same meaning as it has in the
national electricity rules.
distribution loss factor has the same meaning as it has in
the national electricity rules.
distribution network has the same meaning as it has in
the national electricity rules.
National Electricity (ACT) Law—see the Electricity
(National Scheme) Act 1997, section 5 (Application in ACT of National
Electricity Law).
national electricity rules means the national electricity
rules under the National Electricity (ACT) Law.
relevant acquisition has the same meaning as it has in the
Renewable Energy (Electricity) Act 2000 (Cwlth).
renewable power percentage has the same meaning as it has in
the Renewable Energy (Electricity) Act 2000 (Cwlth).
Explanatory note
This amendment is consequential on a change in terminology under the
uniform National Electricity Law that applies in the ACT because of the
Electricity (National Scheme) Act 1997. Under the uniform law, the
former national electricity code is now known as the national electricity
rules.
[3.113] Dictionary,
note 3
omit
• national electricity code
Explanatory note
This amendment is consequential on the amendment of section 15 (5) by
another amendment in relation to a change in terminology under the uniform
National Electricity Law.
Part
3.8 Electricity (National Scheme) Act
1997
substitute
1 Name of Act
This Act is the Electricity (National Scheme) Act 1997.
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act.
Note 2 A definition in the dictionary applies to the entire Act
unless the definition, or another provision of the Act, provides otherwise or
the contrary intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
3A Terms used in National Electricity (ACT)
Law
A term used in the National Electricity (ACT) Law has the same meaning in
this Act.
Explanatory note
This amendment brings the naming section into line with current drafting
practice and inserts standard dictionary and notes provisions. The definitions
in existing section 3 are included in the new dictionary which is inserted by
another amendment. New section 3A includes interpretation provisions that were
previously section 3 (2) and (3).
[3.115] Section
7 (1), definition of Supreme Court
omit
Explanatory note
This amendment omits a redundant definition.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• Act
• Commonwealth
• Legislative Assembly
• Minister (see s 162)
• provision (see s 16)
• Supreme Court
• the Territory
• under.
National Electricity (ACT) Law means the provisions applying
because of section 5.
National Electricity (ACT) Regulations means the provisions
applying because of section 6.
Explanatory note
This amendment inserts a dictionary consequential on the omission of the
definitions section (existing section 3) by another amendment.
Part
3.9 Environment Protection Act
1997
[3.117] Schedule
1, section 1.1, new definition of National Electricity (ACT)
Law
insert
National Electricity (ACT) Law—see the Electricity
(National Scheme) Act 1997, section 5 (Application in ACT of National
Electricity Law).
Explanatory note
This amendment is consequential on the amendment of schedule 1, section 1.2
by another amendment in relation to a change in terminology under the uniform
National Electricity Law.
[3.118] Schedule
1, section 1.2, item 27
substitute
27
|
the generation of electricity by a generator classified as a scheduled
generating unit under the national electricity rules, clause 2.2.2, under the
National Electricity (ACT) Law
|
Explanatory note
This amendment is consequential on a change in terminology under the
uniform National Electricity Law that applies in the ACT because of the
Electricity (National Scheme) Act 1997. Under the uniform law, the
former national electricity code is now known as the national electricity
rules.
Part
3.10 Health Act
1993
[3.119] Section
33E (3) (d)
substitute
(d) the executive officer of the entity is disqualified from managing
corporations under the Corporations Act, part 2D.6 (Disqualification from
managing corporations).
Explanatory note
This amendment remakes section 33E (3) (d) to avoid unnecessary duplication
of matters covered already in the Corporations Act. Existing sections 33E
(3) (d) (ii) to (iv) are covered by the automatic disqualification provisions
under the Corporations Act, part 2D.6, section 206B (3) and (4).
Part
3.11 Holidays Act
1958
substitute
1 Name of Act
This Act is the Holidays Act 1958.
Explanatory note
This amendment brings the naming section into line with current drafting
practice.
[3.121] Section
3 (1) (b)
substitute
(b) any other day, or a part of any other day, that the Minister declares
to be a public holiday in the ACT, or in a part of the ACT stated in the
declaration, is a public holiday in the ACT or that part of the ACT.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice.
substitute
(2) If the Minister considers it is appropriate that a day mentioned in
subsection (1) (a) should not, in a particular year, be a public holiday in the
ACT, the Minister may declare that the day is not, in that year, a public
holiday.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice.
substitute
(5) If a person who is entitled under an award to a holiday on a weekday
following a substituted public holiday and the weekday is not a public holiday
under this Act, the substituted public holiday is not a public holiday for the
person under this Act.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice.
[3.124] Section
3 (6), definition of substituted public holiday
substitute
substituted public holiday means a day that is a public
holiday because another day mentioned in subsection (1) (a) is a Saturday or
Sunday.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice.
[3.125] Section
4 (1) (c)
substitute
(c) any other day, or a part of any other day that the Minister declares
to be a bank holiday in the ACT, or in a part of the ACT stated in the
declaration, is a bank holiday in the ACT or that part of the ACT.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice.
substitute
(2) If the Minister considers it is appropriate that a day mentioned in
subsection (1) (a) or (b) should not, in a particular year, be a bank holiday in
the ACT, the Minister may declare that the day is not, in that year, a bank
holiday.
Explanatory note
This amendment brings the language of the provision more closely into line
with current drafting practice.
Part
3.12 Independent Competition and
Regulatory Commission Act 1997
omit
national electricity code
substitute
national electricity rules
(commencement: the later of the commencement of the Financial Management
Legislation Amendment Act 2005, schedule 1, part 1.10 or the day this
Act commences)
Explanatory note
This amendment is consequential on other amendments in relation to a change
in terminology under the uniform National Electricity Law.
omit
the code
substitute
the rules
(commencement: the later of the commencement of the Financial Management
Legislation Amendment Act 2005, schedule 1, part 1.10 or the day this
Act commences)
Explanatory note
This amendment is consequential on other amendments in relation to a change
in terminology under the uniform National Electricity Law.
[3.129] Section
8 (1) (g) (iv)
substitute
(iv) the national electricity rules;
(commencement: the later of the commencement of the Financial Management
Legislation Amendment Act 2005, schedule 1, part 1.10 or the day this
Act commences)
Explanatory note
This amendment is consequential on other amendments in relation to a change
in terminology under the uniform National Electricity Law.
[3.130] Dictionary,
definition of law of the Territory,
paragraph (c)
substitute
(c) the national electricity rules; and
(commencement: the later of the commencement of the Financial Management
Legislation Amendment Act 2005, schedule 1, part 1.10 or the day this
Act commences)
Explanatory note
This amendment is consequential on a change in terminology under the
uniform National Electricity Law that applies in the ACT because of the
Electricity (National Scheme) Act 1997. Under the uniform law, the
former national electricity code is now known as the national electricity
rules.
[3.131] Dictionary,
definition of national electricity code
omit
(commencement: the later of the commencement of the Financial Management
Legislation Amendment Act 2005, schedule 1, part 1.10 or the day this
Act commences)
Explanatory note
This amendment omits a redundant definition.
[3.132] Dictionary,
new definition of national electricity rules
insert
national electricity rules means the national electricity
rules under the National Electricity (ACT) Law.
(commencement: the later of the commencement of the Financial Management
Legislation Amendment Act 2005, schedule 1, part 1.10 or the day this
Act commences)
Explanatory note
This amendment is consequential on other amendments in relation to a change
in terminology under the uniform National Electricity Law.
Part
3.13 Juries Act
1967
[3.133] Section
6, definition of court
omit
Explanatory note
This amendment omits a definition made redundant by another
amendment.
[3.134] Section
6, definition of judge
omit
Explanatory note
This amendment omits the definition of judge because that
term is defined in the Legislation Act, dictionary, part 1.
[3.135] Section
6, definition of sheriff
substitute
sheriff—
(a) means the sheriff of the Territory; and
(b) for part 5 (Jury precepts and summonses)—see section
21.
Explanatory note
This amendment brings the structure of the definition into line with
current drafting practice and incorporates a signpost definition.
[3.136] Section
6, definitions (as amended)
relocate to dictionary
Explanatory note
This amendment relocates the definitions that have not been omitted,
including definitions as amended, to a new dictionary that is inserted by
another amendment.
[3.137] Section
6, remainder
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the
definition, or another provision of the Act, provides otherwise or the contrary
intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
Explanatory note
This amendment adds standard dictionary and notes provisions.
[3.138] Section
51A (1) (b)
omit
court
substitute
Supreme Court
Explanatory note
This amendment brings a reference to the Supreme Court into line with
current drafting practice.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1 defines the
following terms:
• Act
• director of public prosecutions
• lawyer
• police officer.
Explanatory note
This amendment inserts a dictionary and standard dictionary notes in line
with current drafting practice. The notes draw to the attention of the reader
that the dictionary is not the only source for definitions of terms.
Part
3.14 Land Titles (Unit Titles) Act
1970
substitute
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act.
Note 2 A definition in the dictionary applies to the entire Act
unless the definition, or another provision of the Act, provides otherwise or
the contrary intention otherwise appears (see Legislation Act, s 155 and
s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
3A Terms used in Unit Titles Act
A term defined in the Unit Titles Act 2001 has the same meaning in
this Act.
Explanatory note
This amendment adds a standard dictionary provision, remakes existing
section 3 (2) as new section 3A in accordance with current drafting practice and
brings the order of provisions into line with current drafting practice. The
definitions in existing section 3 (1) are included in a new dictionary that is
inserted by another amendment.
[3.141] Section
23 (1) (b) and (2)
omit
determination
substitute
termination
Explanatory note
This amendment corrects a minor drafting error.
omit
determined
substitute
terminated
Explanatory note
This amendment corrects a minor drafting error.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• document
• land
• Magistrates Court
• Minister (see s 162)
• planning and land authority
• registrar-general.
Note 3 Terms defined in the Unit Titles Act 2001 have the
same meaning in this Act (see s 3). For example, the following terms are
defined in the Unit Titles Act 2001, dict:
• boundary authority (see s 149)
• cancellation authority (see s 160)
• common property (see s 13)
• lease
• mortgage
• owners corporation
• parcel (see s 5)
• registered
• termination
• unit (see s 9).
graphic bar scale means a set of marks on a plan, at measured
distances on a line, that indicates the scale to which the plan is
drawn.
Land Titles Act means the Land Titles Act
1925.
Explanatory note
This amendment inserts a dictionary and standard dictionary notes in line
with current drafting practice. The notes draw to the attention of the reader
that the dictionary is not the only source for definitions of terms.
Part
3.15 Mercantile Law Act
1962
substitute
1 Name of Act
This Act is the Mercantile Law Act 1962.
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere in this Act.
For example, the signpost definition ‘mercantile agent,
for part 2 (Mercantile agents)—see section 4.’ means that the term
‘mercantile agent’ is defined in that section for part 2.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
Explanatory note
This amendment brings the naming section into line with current drafting
practice and inserts the standard dictionary and notes provisions.
[3.145] Section
4, definition of document of title
substitute
document of title—see the Sale of Goods Act
1954, dictionary.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[3.146] Section
4, definition of mercantile agent
substitute
mercantile agent—see the Sale of Goods Act 1954,
dictionary.
Explanatory note
This amendment remakes the definition in accordance with current drafting
practice.
[3.147] Section
4, definition of pledge
omit
pecuniary
substitute
financial
Explanatory note
This amendment updates language.
substitute
6 Powers of mercantile agent
If a mercantile agent is entrusted as a mercantile agent with the
possession of goods or documents of title to goods—
(a) a sale, pledge or other disposition of the goods made by the
mercantile agent in the ordinary course of business of a mercantile agent to a
person acting honestly, and without notice that the mercantile agent does not
have authority to make the disposition, is, subject to this part, as valid as if
the mercantile agent were expressly authorised by the owner of the goods to make
the disposition; and
(b) a sale, pledge or other disposition of the goods to a person that
would have been valid if the entrusting had continued is valid, despite the
ending of the entrusting, unless the person had, at the time of the disposition,
notice of the ending of the entrusting.
Explanatory note
This amendment brings the language of the section more closely into line
with current drafting practice.
omit
For this part—
substitute
(1) For this part—
Explanatory note
This amendment is consequential on the insertion of a second subsection by
another amendment.
[3.150] Section
7 (a) to (d)
omit
shall be deemed
substitute
is taken
Explanatory note
This amendment updates language.
[3.151] Section
7 (e) and (f)
substitute
(e) a pledge of the documents of title to goods is taken to be a pledge of
the goods.
(2) If—
(a) an advance is made honestly to a mercantile agent entrusted as a
mercantile agent with the possession of goods, or documents of title to goods,
relying on a written agreement to consign, deposit, transfer or deliver the
goods or documents; and
(b) the goods or documents are received by the person making the advance
without notice that the mercantile agent was not authorised to make the
pledge;
the advance is taken, for this part, to be an advance on the security of
the goods or documents even though the goods or documents are not received by
the person making the advance until after the advance is made.
Explanatory note
This amendment updates language and brings the structure of the provisions
more closely into line with current drafting practice.
substitute
8 Pledge by way of exchange
(1) This section applies if—
(a) a mercantile agent pledges goods in consideration of the delivery or
transfer of—
(i) other goods; or
(ii) documents of title to other goods; or
(iii) negotiable securities; and
(b) because of the pledge, the person (the pledgee) who
delivers or transfers the goods, documents or securities obtains a valid and
available lien and security in relation to a previous advance under an agreement
made with the mercantile agent; and
(c) the pledgee acts honestly and without notice that the mercantile agent
did not have authority to make the pledge.
(2) The pledge is taken to be in consideration of an advance under this
part as if there had been an actual advance of money, but the pledgee does not
acquire any right or interest in excess of the value of the goods, documents or
negotiable securities when they are delivered or transferred.
9 Pledge for existing debt
If a mercantile agent pledges goods as security for a debt or liability
that the mercantile agent owes the pledgee before the pledge is made, the
pledgee does not acquire any further right to the goods than could have been
enforced by the mercantile agent at the time of the pledge.
Explanatory note
This amendment updates language and brings the structure of section 8 more
closely into line with current drafting practice.
substitute
11 Saving for common law powers of mercantile
agents
The provisions of this part enlarge and do not diminish the functions a
mercantile agent may exercise.
Explanatory note
This amendment brings the language of the section more closely into line
with current drafting practice.
substitute
12 Consideration for guarantee
A special promise by a person (the guarantor) to answer for
the debt, liability or failure of someone else is not invalid only because the
consideration for the promise is not evidenced in writing if the promise is in
writing signed by or on behalf of the guarantor.
Explanatory note
This amendment brings the language of the section more closely into line
with current drafting practice.
omit
an action or suit shall
substitute
a proceeding must
Explanatory note
This amendment updates language.
substitute
15 Debts and contracts of
children
(1) This section applies to—
(a) a promise made by a person after becoming an adult to pay a debt
contracted by the person when the person was a child; or
(b) the ratification by a person after becoming an adult of a promise or
simple contract made by the person when the person was a child.
(2) The promise or ratification is not enforceable by a proceeding against
the person unless it was made in writing signed by the person.
Explanatory note
This amendment brings the language of the section more closely into line
with current drafting practice.
substitute
16 Representations of character
etc
(1) This section applies to a representation or assurance made by a person
if it is—
(a) about the character, conduct or credit, ability, trade or dealings of
someone else; and
(b) made so the other person can obtain credit, money or goods by relying
on it.
(2) The representation or assurance is not enforceable by a proceeding
against the person who made it unless it was made in writing signed by the
person.
Explanatory note
This amendment brings the language of the section more closely into line
with current drafting practice.
[3.158] Section
17, definition of court
omit
Explanatory note
This amendment omits a redundant definition.
substitute
(2) If the charges mentioned in subsection (1) (c) are incurred in
relation to 2 or more items of goods, the charges in relation to any of the
items is the amount worked out as follows:
TSC

(3) In subsection (2):
ISP means the sale price of the item.
TSC means total charges for selling all the goods.
TSP means the sale price of all the goods.
Explanatory note
This amendment brings the language of the section closer into line with
current drafting practice and clarifies it by expressing the narrative form more
clearly through the inclusion of a formula.
substitute
28 Service of notice by warehouse
person
(1) If a warehouse person does not know a person’s address, notice
by the warehouse person under this part may be given to the person by 2
advertisements, at least 7 days apart, in a daily newspaper published in the
ACT.
(2) A notice given by advertisement in accordance with subsection (1)
is, for this part, taken to have been given on the day the
2nd advertisement is published.
Explanatory note
This amendment updates language and omits provisions that are no longer
needed because of the Legislation Act, section 247.
omit
Explanatory note
This amendment omits a transitional provision that is no longer needed.
The operation of this provision does not need to be expressly saved under the
Legislation Act, section 88.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• ACT
• document
• function
• under
• writing.
advance, for part 2 (Mercantile agents)—see section
4.
document of title, for part 2 (Mercantile agents)—see
section 4.
lien, for part 6 (Warehouse persons’ liens)—see
section 17.
mercantile agent, for part 2 (Mercantile agents)—see
section 4.
pledge, for part 2 (Mercantile agents)—see section
4.
warehouse person, for part 6 (Warehouse persons’
liens)—see section 17.
Explanatory note
This amendment inserts a dictionary that includes signpost definitions to
terms defined in the Act.
Part
3.16 Nudity Act
1976
insert
1A Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the legal
status of notes.
Explanatory note
This amendment adds a standard note provision.
substitute
4 Being naked in prescribed area
A person does not commit an offence against a territory law only because
the person is naked in an area declared by the Minister under section 2 to be a
prescribed area.
Explanatory note
This amendment changes ‘a law in force in the ACT’ to ‘a
territory law’ and brings the language of the section more closely into
line with current drafting practice. The effect of the amendment is to use the
term (‘a territory law’) that is more usual in current drafting
practice and reflects the position that an ACT Act cannot affect the operation
of Commonwealth laws that apply in the ACT unless it is prescribed under the
Self-Government Act. The Nudity Act is not prescribed under the Self-Government
Act.
Part
3.17 Oaths and Affirmations Act
1984
substitute
1 Name of Act
This Act is the Oaths and Affirmations Act 1984.
Explanatory note
This amendment brings the naming section into line with current drafting
practice.
substitute
6A Oaths or affirmations by members of
Assembly
(1) A member of the Legislative Assembly must, before taking his or her
seat, make and subscribe either or both of the following:
(a) an oath or affirmation in accordance with the form in
schedule 1A, part 1A.1;
(b) an oath or affirmation in accordance with the form in
schedule 1A, part 1A.2.
(2) This section has effect despite the Self-Government Act,
section 9 (1).
Explanatory note
This amendment brings the section into line with current drafting practice,
in particular by making it more apparent that a member may take or make either
or both of the oaths or affirmations mentioned in paragraphs (a) and (b). The
amendment does not alter the legal effect of the section.
omit
forthwith
Explanatory note
This amendment omits an out-of-date term. Under the Legislation Act,
proposed new section 151B (which will be inserted by an amendment in sch
2), if no time is provided for the doing of a thing, the thing must be done as
soon as possible.
Part
3.18 Ombudsman Act
1989
[3.168] Section
3 (1), definition of enactment
substitute
enactment means an Act or subordinate law, but does not
include the National Electricity (ACT) Law or National Electricity (ACT)
Regulations.
Explanatory note
This amendment is consequential on other amendments in relation to a change
in terminology under the uniform National Electricity Law.
[3.169] Section
3 (1), new definition
insert
National Electricity (ACT) Law—see the Electricity
(National Scheme) Act 1997, section 5 (Application in ACT of National
Electricity Law).
Explanatory note
This amendment is consequential on a change in terminology under the
uniform National Electricity Law that applies in the ACT because of the
Electricity (National Scheme) Act 1997. Under the uniform law, the
former national electricity code is now known as the national electricity
rules.
substitute
3A Application of Act—National Electricity
(ACT) Law
(1) This Act does not apply to an agency in relation to functions
exercised by it as an agent for AER or NEMMCO under the national electricity
rules.
(2) In this section:
AER means the Australian Energy Regulator under the National
Electricity (ACT) Law.
national electricity rules means the national electricity
rules approved under the National Electricity (ACT) Law, section 6.
NEMMCO—see the National Electricity (ACT)
Law.
Explanatory note
This amendment is consequential on other amendments in relation to a change
in terminology under the uniform National Electricity Law.
Part
3.19 Sale of Goods Act
1954
substitute
1 Name of Act
This Act is the Sale of Goods Act 1954.
2 Dictionary
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
3 Notes
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for the
legal status of notes.
4 Key concepts
For this Act—
(a) a thing is done honestly if it is in fact done honestly, whether or
not it is done negligently; and
(b) what is a reasonable time, a reasonable hour or a reasonable price is
a question of fact; and
(c) a person is insolvent if the person has ceased to pay debts that arise
in the ordinary course of business, or cannot pay debts as they become due,
whether or not the person has committed an act of bankruptcy and whether or not
the person has become a bankrupt; and
(d) goods are in a deliverable state if they are in a state that the buyer
would, under the contract, be bound to take delivery of them.
Explanatory note
This amendment brings the naming section into line with current drafting
practice and inserts the standard dictionary and notes provisions. It also
inserts a new section 4 which replaces the general interpretation principles in
existing section 5 (2).
[3.172] Section
5 (1), definitions
relocate to dictionary
Explanatory note
This amendment relocates the definitions to a new dictionary that is
inserted by another amendment.
[3.173] Section
5, remainder
omit
Explanatory note
The provisions of section 5 have been either relocated to the dictionary
inserted by another amendment or have been re-made as new section 4. The shell
of the section is redundant and can be omitted.
[3.174] Sections
27, 29, 30 (3) and 50 (2)
omit
in good faith
substitute
honestly
Explanatory note
This amendment updates language.
insert
Dictionary
(see s 2)
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• document
• under
• writing.
Explanatory note
This amendment inserts a new dictionary. The existing definitions in
section 5 (1) are relocated to the dictionary by another amendment.
Part
3.20 Utilities Act
2000
omit
National Electricity Code
substitute
national electricity rules
Explanatory note
This amendment is consequential on a change in terminology under the
uniform National Electricity Law that applies in the ACT because of the
Electricity (National Scheme) Act 1997. Under the uniform law, the
former national electricity code is now known as the national electricity
rules.
substitute
(2) In this section:
jurisdictional regulator—see the ICRC Act, section 4A
(4) (National electricity rules—electricity distribution and transmission
pricing).
National Electricity (ACT) Law—see the Electricity
(National Scheme) Act 1997, section 5 (Application in ACT of National
Electricity Law).
national electricity rules means the national electricity
rules approved under the National Electricity (ACT) Law, section 6.
Explanatory note
This amendment is consequential on the amendment of section 28 (1) by
another amendment in relation to a change in terminology under the uniform
National Electricity Law.
Schedule
4 Repeal of redundant or obsolete
Acts
(see s 6)
Explanatory note for sch
4
This schedule repeals 4 Acts that are no longer needed.
The Bank Mergers Act 1997 is no longer needed because the transfer
of the business of authorised deposit-taking institutions is now covered by the
Financial Sector (Transfers of Business) Act 1999 (Cwlth).
The remaining Acts provided for particular mergers of banking institutions.
They provided a legislative basis for the transfer of assets and liabilities and
the novation of contractual arrangements from the terminating bank to the
continuing bank. As the processes behind the mergers of these banks is now
complete, these Acts are no longer necessary. Section 6 (2) (Legislation
repealed—sch 4) makes it clear that the effect of the Acts is saved under
the Legislation Act, section 88 (Repeal does not end effect of transitional laws
etc).
Australia and New Zealand Banking Group Limited (NMRB) Act 1991
A1991-66
Bank Mergers Act 1997 A1997-47
Canberra Advance Bank Limited (Merger) Act 1992 A1992-24
State Bank of South Australia (Transfer of Undertaking)
Act 1994 A1994-31
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2005.
2 Notification
Notified under the Legislation Act on 2005.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2005
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