33Exercise of powers and performance of functions or duties

33  Exercise of powers and performance of functions or duties Powers, functions and duties may be exercised or must be performed as the occasion requires  (1) Where an Act confers a power or function or imposes a duty, then the power may be exercised and the function or duty must be performed from time to time as occasion requires. Meaning of may  (2A) Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word “may” is used, the act or thing may be done at the discretion of the person, court or body. Powers, functions and duties of bodies not affected by membership vacancies  (2B) Where an Act confers a power or function, or imposes a duty, on a body, whether incorporated or unincorporated, the exercise of the power or the performance of the function or duty is not affected merely because of a vacancy or vacancies in the membership of the body. Power to make instrument includes power to vary or revoke etc. instrument  (3) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.  (3AA) If a condition (the ongoing condition):  (a) must be satisfied before the making, granting or issuing of an instrument; and  (b) is capable of ceasing to be satisfied after the making, granting or issuing of the instrument; subsection (3) has effect, in relation to the repeal, rescission or revocation of the instrument, as if the reference to like conditions (to the extent that the reference relates to the ongoing condition) were a reference to the ongoing condition ceasing to be satisfied. Example: A Minister may give a person a written permission if, among other things, the Minister is satisfied the person is of good character.  This condition is capable of ceasing to be satisfied after the giving of the permission.  The Minister may repeal, rescind or revoke the permission in the like manner if the Minister ceases to be satisfied that the person is of good character. Scope of powers in respect of matters  (3A) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws) with respect to particular matters (however the matters are described), the power shall be construed as including a power to make, grant or issue such an instrument with respect to some only of those matters or with respect to a particular class or particular classes of those matters and to make different provision with respect to different matters or different classes of matters.  (3AB) If an Act confers on a person or authority the power to make an instrument (except a legislative instrument, a notifiable instrument or a rule of court):  (a) specifying, declaring or prescribing a matter; or  (b) doing anything in relation to a matter; then, in exercising the power, the person or authority may identify the matter by reference to a class or classes of matters. Note: This provision has a parallel, in relation to legislative instruments, and notifiable instruments, in section 13 of the Legislation Act 2003.  (3AC) For the purposes of subsections (3A) and (3AB), matter includes thing, person and animal.  (3B) Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by‑laws), the power shall not be taken, by implication, not to include the power to make provision for or in relation to a particular aspect of a matter by reason only that provision is made by the Act in relation to another aspect of that matter or in relation to another matter. Power to make appointment to an office or place  (4) Where an Act confers upon any person or authority a power to make appointments to any office or place, the power shall be construed as including a power to appoint a person to act in the office or place until:  (a) a person is appointed to the office or place; or  (b) the expiration of 12 months after the office or place was created or became vacant, as the case requires; whichever first happens, and as also including a power to remove or suspend any person appointed, and to appoint another person temporarily in the place of any person so suspended or in place of any sick or absent holder of such office or place.   Provided that where the power of such person or authority to make any such appointment is only exercisable upon the recommendation or subject to the approval or consent of some other person or authority, such power to make an appointment to act in an office or place or such power of removal shall only be exercisable upon the recommendation or subject to the approval or consent of such other person or authority. Power to make instrument prescribing penalties  (5) Where an Act confers a power to make, grant or issue an instrument (including rules, regulations or by‑laws) prescribing penalties not exceeding a specified amount or imprisonment for a specified period, that limitation on the penalties that may be prescribed does not prevent the instrument from requiring the making of a statutory declaration. 33AA  Power to appoint includes power to reappoint   If an Act confers on a person or body a power to make an appointment, the power is taken to include a power of reappointment. 33AB  Validity of things done under appointments under Acts   Anything done by or in relation to a person purporting to act under an appointment (including an acting appointment) under an Act is not invalid merely because:  (a) for any appointment—the occasion for the appointment had not arisen; or  (b) for any appointment—there was a defect or irregularity in connection with the appointment; or  (c) for any appointment—the appointment had ceased to have effect; or  (d) for an acting appointment—the occasion to act had not arisen or had ceased.