46Construction of instruments

46  Construction of instruments  (1) If a provision confers on a person (the authority) the power to make an instrument other than a legislative instrument, notifiable instrument or a rule of court, then:  (a) this Act applies to any instrument so made as if it were an Act and as if each provision of the instrument were a section of an Act; and  (b) expressions used in any instrument so made have the same meaning as in the Act or instrument, as in force from time to time, that authorises the making of the instrument in which the expressions are used; and  (c) any instrument so made is to be read and construed subject to the enabling legislation as in force from time to time, and so as not to exceed the power of the authority.  (2) If any instrument so made would, but for this subsection, be construed as being in excess of the authority’s power, it is to be taken to be a valid instrument to the extent to which it is not in excess of that power.  (3) The amendment of an instrument, other than a legislative instrument or a notifiable instrument, or a rule of court, by an Act does not prevent the instrument, as so amended, from being amended or repealed by the authority. Note: This provision has a parallel, in relation to legislative instruments and notifiable instruments, in section 13 of the Legislation Act 2003. 46AA  Prescribing matters by reference to other instruments  (1) If legislation authorises or requires provision to be made in relation to any matter in an instrument, other than a legislative instrument, a notifiable instrument or a rule of court, that instrument may make provision in relation to that matter:  (a) by applying, adopting or incorporating, with or without modification, any of the following, as in force at a particular time or as in force from time to time:  (i) the provisions of an Act;  (ii) the provisions of a legislative instrument covered by subsection (3);  (iii) the provisions of rules of court; or  (b) subject to subsection (2), by applying, adopting or incorporating, with or without modification, any matter contained in any other instrument or writing as in force or existing at:  (i) the time the first‑mentioned instrument commences; or  (ii) a time before the first‑mentioned instrument commences (whether or not the other instrument is still in force, or the other writing still exists, at the time the first‑mentioned instrument commences).  (2) The instrument may not make provision in relation to that matter by applying, adopting or incorporating any matter contained in an instrument or other writing as in force or existing from time to time.  (3) The following legislative instruments are covered by this subsection:  (a) disallowable legislative instruments within the meaning of the Legislation Act 2003;  (b) legislative instruments that were disallowable under this or any other Act at any time before 1 January 2005. Note 1: Section 4 of the Legislation Act 2003 defines a disallowable legislative instrument as a legislative instrument to which section 42 of that Act applies. Note 2: The substantive provisions of the Legislation Act 2003 commenced on 1 January 2005. Forms  (4) If an instrument provides for a form to be used, this section does not apply in relation to the form. Note: This provision has a parallel, in relation to legislative instruments and notifiable instruments, in section 14 of the Legislation Act 2003.